State ex rel. Douglas v. Buder

• Decision Date: 19 September 1972
• Docket Number: No. 57779,57779
• Parties: STATE ex rel. James R. DOUGLAS, Relator, v. William E. BUDER, Judge, Respondent.
• Court: Missouri Supreme Court

Page 609

485 S.W.2d 609

STATE ex rel. James R. DOUGLAS, Relator, v. William E. BUDER, Judge, Respondent.

No. 57779.

Supreme Court of Missouri, En Banc.

Sept. 19, 1972.

Rehearing Denied Nov. 13, 1972.

London & Greenberg, Norman S. London, Lawrence J. Fleming, St. Louis, for relator, James R. Douglas.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

This is an original action in prohibition.

On November 11, 1971, James R. Douglas (relator) pleaded guilty to two charges of manslaughter before Judge Buder (respondent). Imposition of sentence was suspended and relator was placed on probation for four years. As a condition of probation relator was not to drink intoxicating liquors or to frequent establishments where they are sold.

Thereafter, at the probation office, relator signed a form which set out other conditions of probation. One of those conditions was that 'all arrests for any reason must be reported without delay to my probation and parole officer.'

On January 20, 1972, while driving a truck in the course of his employment, relator was involved in a seven-vehicle chain collision which occurred in a dense fog on a highway in Arkansas. Relator's vehicle was the fourth vehicle in the seven-vehicle accident. The driver of the sixth vehicle was killed. The driver of the first vehicle was issued a traffic citation for failure to yield the right-of-way. The driver of the second vehicle was issued no citation, and the drivers of all the other vehicles were issued citations for driving too fast for conditions.

Relator advised his probation officer of the accident and the traffic citation at his next scheduled report date on January 31, 1972. At the subsequent probation revocation hearing, relator testified that he was not jailed or required to post bond as a result of the traffic citation and that he did not consider himself under arrest. The probation officer recommended continued probation. At the conclusion of the hearing respondent revoked probation and sentenced relator to two years on each of the two previous charges, the terms to run concurrently. Respondent indicated that the primary reason for revoking probation was the failure of relator to report the traffic citation promptly.

We reach the following conclusions:

(1) The power of respondent to grant probation was dependent upon the authorization given him by V.A.M.S. §§ 549.058--549.197. (Cf. Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129; Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62.)

(2) V.A.M.S. § 549.141 provides that respondent's action in revoking relator's probation 'is not subject to review' by this Court.

(3) However, the United States Supreme Court, in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (decided June 29, 1972), has now declared that the liberty granted a probationer or parolee is a right (and not a privilege) which, once given, cannot be withdrawn in such a way as to deny him due process under the Fourteenth Amendment to the Constitution of the United States.

(4) Procedural due process is not at issue in this case. Relator was given notice and an opportunity to be heard on the question of revocation of probation. We need not decide whether all that is said in Morrissey, supra, applies to revocation of probation or parole by a judge. Morrissey, supra, involved revocation of parole by the Iowa Board of Parole (Cf. V.A.M.S. § 549.265).

(5) The question in this case is whether relator was denied substantive due process by the revocation of probation. The question does not turn on whether the judges of this Court, had we been sitting in respondent's place, would have revoked the probation. A denial of due process is shown only when this Court must say that respondent's action in revoking probation 'amounts to mere arbitrary or capricious exercise of power * * *' (American Railway Express Company v. Kentucky, 273 U.S. 269, 273, 47 S.Ct. 353, 355, 71 L.Ed. 639), or, to say it another way, that relator is 'the victim of whim or caprice.' (Burns v. United States, 287 U.S. 216, 223, 53 S.Ct. 154, 156, 77 L.Ed. 266.)

We have reviewed the record, have applied the above standards, and have concluded that relator was not denied due process.

The provisional rule in prohibition should be discharged and the writ of prohibition denied. It is so ordered.

FINCH, C.J., and HOLMAN and HENLEY, JJ., concur.

SEILER, J., dissents in separate dissenting opinion filed.

MORGAN and BARDGETT, JJ., dissent and concur in dissenting opinion of SEILER, J.

SEILER, Judge (dissenting).

I respectfully dissent. My reason is that while relator had a hearing with notice and counsel, there was no evidence presented at the hearing on which the court could find there had been a violation of any of the conditions of probation. What avail is it to have a hearing with all the procedural safeguards, if it matters not whether there is evidence on which it can reasonably be found there was a probation violation? In Morrissey v. Brewer, supra, 408 U.S. 471 at p. 479, 92 S.Ct. 2593 at p. 2599, 33 L.Ed.2d 484, the court said: '. . . The first step in a revocation decision thus involves a wholly retroactive factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison . . .' (emphasis added).

'. . .

'(92 S.Ct. p. 2601) . . . The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions . . .' (emphasis added).

'. . .

'(92 S.Ct. p. 2601) This discretionary aspect of the revocation decision need not be reached unless there is first an appropriate determination that the individual has in fact breached the conditions of the parole . . .' (emphasis added).

Just as due process requires there must be evidence to support a conviction, Garner v. Louisiana, 368 U.S. 157, 164, 82 S.Ct. 248, 7 L.Ed.2d 207; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682; Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 22 L.Ed.2d 134; Thompson v. Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654; California v. Green, 399 U.S. 149, 187...