State ex rel. Partin v. Jensen

• Decision Date: 15 May 1979
• Docket Number: No. 42278,42278
• Citation: 279 N.W.2d 120,203 Neb. 441
• Parties: STATE of Nebraska ex rel. Gary B. PARTIN, Appellant and Cross-Appellee, v. Lester L. JENSEN, Sheriff of Dawes County, Nebraska, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 120

279 N.W.2d 120

203 Neb. 441

STATE of Nebraska ex rel. Gary B. PARTIN, Appellant and Cross-Appellee, v. Lester L. JENSEN, Sheriff of Dawes County, Nebraska, Appellee and Cross-Appellant.

No. 42278.

Supreme Court of Nebraska.

May 15, 1979.

Syllabus by the Court

1. Criminal Law: Extradition: States. In an extradition proceeding where the Governor of the asylum state has granted extradition, a court of the asylum state can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.

2. Criminal Law: Bail. Courts have the inherent power to consider the propriety of bail under special circumstances in the light of modern concepts of fundamental fairness, even though there is no statute specifically authorizing bail.

3. Criminal Law: Extradition: States: Habeas Corpus. In a habeas corpus proceeding challenging extradition, in the absence of specific statutory authorization, the trial court or the District Court has power, in its discretion, to grant bail during the pendency of the proceedings, including an appeal to this court, in the same cases and under the same terms and conditions authorized by statute in preliminary extradition proceedings, or in other habeas corpus proceedings.

Charles A. Fisher and David E. Veath, Chadron, for appellant.

Paul L. Douglas, Atty. Gen. and Paul W. Snyder, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

McCOWN, Justice.

This is a habeas corpus action challenging the extradition of the petitioner, Gary B. Partin, to the State of California on two counts of child abduction. The county court of Dawes County quashed the writ of habeas corpus and the District Court affirmed the judgment. The petitioner has appealed, and the respondent has cross-appealed as to the granting of bail on appeal.

Petitioner, Gary B. Partin, and Grace Marie Partin were divorced on July 29, 1975, in Garfield County, Colorado. The divorce decree granted custody of the two minor children of the parties to the wife, with visitation rights to the husband. In April 1976, petitioner became a resident of Chadron, Dawes County, Nebraska, and thereafter Grace Marie Partin became a resident of California. The Colorado court amended the divorce decree on November 10, 1976, and granted petitioner the right to have the children visit at his residence for 1 month each year when the children were not in school.

Pursuant to the divorce decree, and with the consent of his former wife, petitioner went to California and on June 26, 1977, took the children from California to his residence in Nebraska for the 1-month visitation. He did not return the children to California.

In September 1977, a felony complaint was filed in California, and on November 14, 1977, an amended felony complaint was filed, charging petitioner with two counts of violation of section 278.5, California Penal Code. Section 278.5 provides: "Every person who in violation of a custody decree takes, retains after the expiration of a visitation period, or conceals the child from his legal custodian, and every person who has custody of a child pursuant to an order, judgment or decree of any court which grants another person rights to custody or visitation of such child, and who detains or conceals such child with the intent to deprive the other person of such right to custody or visitation shall be punished by imprisonment in the state prison for a period of not more than one year and one day or by imprisonment in a county jail for a period of not more than one year, a fine of not more than one thousand dollars ($1,000), or both."

The amended complaint charged that the petitioner, on or about September 6, 1977 did "take, retain after the expiration of a visitation period and conceal a child, to wit: Jonathan Partin, from his legal custodian in violation of a custody decree." Count II set out a charge of the same offense with respect to Chasen Partin. An affidavit detailing the facts upon which the complaint was issued was attached. An application for requisition for the arrest and extradition of petitioner was filed and the Governor of California issued a requisition for arrest and extradition on December 31, 1977. On January 17, 1978, the Governor of Nebraska issued a warrant for the arrest and extradition of the petitioner. On March 1, 1978, petitioner was taken into custody pursuant to the warrant and on the same date filed his petition for writ of habeas corpus.

At the hearing on that date the petitioner testified that he was not present in the State of California on September 6, 1977; that he was divorced pursuant to a Colorado divorce decree; and that there was no complaint against him for any crime in Colorado. He also alleged and testified he was not a fugitive from justice, had been a resident of Dawes County, Nebraska, for almost 2 years, and the complaint was so vague and uncertain that it did not charge a crime. Authenticated documents were introduced in evidence to establish compliance with requirements for extradition under the Uniform Criminal Extradition Act.

On March 15, 1978, the county court of Dawes County held that petitioner was not entitled to relief and quashed the writ of habeas corpus. Petitioner appealed to the District Court and was released on his own recognizance. On June 28, 1978, the District Court for Dawes County affirmed the judgment of the county court quashing the writ of habeas corpus and admitted petitioner to bail pending appeal to this court. The petitioner has appealed, and the respondent has cross-appealed as to the granting of bail on appeal.

Petitioner's principal contention is that the California legislation under which he was charged was not effective until July 1, 1977. He contends that because he took the children from California on June 26, 1977, and was not in the State of California on September 6, 1977, he committed no criminal act within the state and therefore cannot be a fugitive from justice nor subject to extradition. In effect his argument is that section 278.5 of the California Penal Code, as applied to him, would be ex post facto.

The fatal defect in petitioner's argument is that section 278.5 of the California Penal Code became effective on January 1, 1977, rather than on July 1, 1977. The particular section under which petitioner was charged was a part of Chapter 1399, Cal.Stats. of 1976, designated section 11 of Chapter 4, which was approved by the Governor on September 30, 1976, and became operative on January 1, 1977, although other portions of Chapter 1399 did not become operative until July 1, 1977. There was no ex post facto problem here.

In Michigan v. Doran, --- U.S. ----, 99 S.Ct. 530, 58 L.Ed.2d 521, just released, the Supreme Court of the United States said: "Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." See,...