State ex rel. Ezell v. Evatt
| Decision Date | 02 April 1974 |
| Citation | 512 S.W.2d 673 |
| Parties | STATE ex rel. Richard EZELL, Appellant, v. H. Q. EVATT, Sheriff, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Carter H. Schoolfield, Chattanooga, for appellant.
David M. Pack, Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, Edward E. Davis, Dist. Atty. Gen., Franklin Grooves, Jr., Asst. Dist. Atty. Gen., Chattanooga, for appellee.
The petitioner Richard Ezell represented by his attorney Honorable Carter Schoolfield has appealed the dismissal of his habeas corpus petition, contesting his extradition to the State of Georgia, from the Criminal Court of Hamilton County, Honorable Russell C. Hinson, Judge, presiding.
Petitioner Richard Ezell was convicted of child abandonment on a plea of guilty February 22, 1965 in the Superior Court of Walker County, State of Georgia. Petitioner's punishment was fixed at three years in the Georgia penitentiary but it was suspended and he was placed on probation provided he would pay $750.00 support money and continue to pay $40.00 per week child support and maintenance for each of his minor children until they reached the age of 18. On May 5, 1972 the petitioner's probation officer swore out a warrant charging that petitioner had violated the terms of his probation by failure to make his child support payments as required by the order of the Superior Court of Walker County, Georgia and that petitioner had failed to report to his probation officer as required by the terms of his probation.
June 12, 1972 the District Attorney of the Lookout Mountain Judicial Circuit of Georgia filed a petition in the Georgia Court in which he alleged that Richard Ezell had violated the terms of his probation by failing to make his child support payments as ordered by the Court.
On August 8, 1972 Honorable Robert E. Coker, Judge of the Superior Court of the Lookout Mountain Judicial circuit of Georgia made an order requiring Richard Ezell to appear before him at the Court house at Lafayette, Georgia on September 12, 1972, to show cause why his probation should not be revoked.
Apparently this show cause order was not served on Ezell because he was a fugitive.
The record shows Judge Coker had on May 5, 1972 issued a warrant for the arrest of Richard Ezell for violation of his probation and suspended sentence requirements.
This warrant too apparently was not executed because petitioner Ezell was a fugitive.
The District Attorney for the Lookout Mountain Judicial Circuit of Georgia on April 30, 1973, filed with the Governor of the State of Georgia a petition which alleged that Richard Ezell had been indicted by the Grand Jury, and had pleaded guilty on February 22, 1965 of the offense of abandonment, and sentenced in the Superior Court of Walker County, Georgia to serve three years in the Georgia penitentiary. That Honorable Robert E. Coker Judge of the Superior Court had suspended the three years sentence and placed Ezell on probation provided he would pay $750.00 support money for his minor children and continue to pay $40.00 per week for support of the children. That Ezell was physically present in Walker County in the State of Georgia at the time of his plea of guilty and imposition of judgment and sentence, and at the time of the suspension and probation.
That the petitioner Ezell had violated the terms of his suspended sentence and probation and fled to the State of Tennessee and had failed and refused to make the support payments as ordered by the Court. That petitioner Ezell was a fugitive from justice and that this application was not made for the purpose of enforcing the collection of a debt or for any private purpose. That the ends of justice require that Richard Ezell be brought back to the State of Georgia for the purpose of revoking his suspended and probated sentence.
That a bench warrant for the arrest of the petitioner Ezell had been issued by the Court.
That the Governor of Georgia on the 18th day of May, 1973, made formal application to the Governor of the State of Tennessee for the arrest and delivery of the petitioner Richard Ezell, a fugitive from justice, and appointed Sheriff Ralph Jones, Deputy Sheriff Raymond Gideon and investigator Ken Visage as agents on the part of the State of Georgia for the purpose of bringing the fugitive from justice to the State of Georgia.
On June 7, 1973, the Governor of the State of Tennessee issued his formal rendition warrant for the arrest of petitioner Richard Ezell and his delivery to the agents of the State of Georgia for the return to the requesting state.
After petitioner Ezell was arrested on the warrant issued by the Governor of Tennessee he filed a petition for a writ of habeas corpus in which he alleged he was unlawfully held and restrained of his liberty by virtue of the warrant issued by the Governor of Tennessee for the offense of abandonment.
That he was not in the State of Georgia at the time of the alleged commission of the offense and that he was not amenable the the State of Georgia authorities. He further alleged that he believed he had pending before the Governor of Tennessee a request that he be allowed an extradition hearing, and that he was requesting the Governor to withdraw the same. That he prayed that a writ of habeas corpus issue, and be sustained. Governor to withdraw the same. That he County, Tennessee Judicial Circuit filed an answer to Ezell's petition in which he denied the restraint was fillegal but that petitioner the restraint was illegal but that petitioner properly issued by the Governor of Tennessee. The District Attorney contended the petitioner was in the State of Georgia at the time he was convicted of abandonment and put on parole.
The minutes of the Criminal Court of Hamilton County, Tennessee of October 4, 1973 show that there was a hearing on Ezell's petition for writ of habeas corpus and that after a portion of the proof was heard, the hearing was adjourned to October 19, 1973, and time allowed the relator and respondent to file trial briefs. The minutes of October 19, 1973 show the hearing was resumed and the petition was dismissed and Ezell appealed.
There is no bill of exceptions in the record to reflect what evidence if any was heard.
The petitioner contends in his brief that the petition to revoke the suspended sentence and the probation was not filed until April 30, 1973. With this we cannot agree. This contention is refuted by the record which shows the Georgia District Attorney on June 12, 1972, wrote a petition seeking revocation of the suspended sentence and probation of petitioner Richard Ezell and that on August 8, 1972 the Judge of the Superior Court in Georgia issued a show cause order against Ezell. The record further shows that on May 5, 1972 Judge Robert E. Coker, Judge of the Superior Court of Walker County, Georgia issued a warrant for the arrest of Richard Ezell for violation of his probation. The April 30, 1973 date mentioned in petitioner's brief is the date of the District Attorney's petition addressed to the Governor of the State of Georgia requesting extradition of petitioner Ezell from the State of Tennessee.
The petitioner contends it was error for the Governor of Tennessee to issue the writ of extradition on the showing made by the State of Georgia. We find no merit in this contention.
The issuance of a rendition warrant by the Governor of Tennessee created a prima facie case that Ezell was lawfully charged with a crime in Georgia and had fled therefrom. In State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 238, the Court said:
We have further held that in order to warrant his discharge from custody, the proof must clearly and satisfactorily show that the prisoner is not a fugitive from justice. State ex rel. v. Foster, 160 Tenn. 285, 23 S.W.2d 660, 24 S.W.2d 897.
It is not necessary that the evidence show absolutely that the party charged with the crime be present in the demanding State at the exact moment at which the crime is shown to have been committed. It is sufficient that the evidence show that such party was in the demanding State on or about the time alleged. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735; Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497; Ex parte Germain, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789.'
The requisition by the Governor of Georgia is in order and shows the petitioner was a fugitive from justice, that he had been convicted of a felony on a plea of guilty, had been duly sentenced and his sentence was suspended and he was placed on probation on condition that he make...
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