Scott v. Ryan

MAUGHAN, Justice:

On appeal is an order of the trial court denying plaintiff’s petition for writ of ha-beas corpus. We reverse, grant plaintiff’s petition for the writ, and remand for an immediate bail hearing.

On December 31, 1975, plaintiff was arrested and charged with a felony. Since then he has been incarcerated in the Weber County jail. At the time of his arrest plaintiff was on probation because of a prior conviction for a misdemeanor. He was denied bail, because the trial court interpreted Article 1, Section 8, Constitution of Utah, to mean that under these circumstances bail could not be granted. Such an interpretation denies bail to anyone arrest*236ed for another offense while on probation for a first offense, and denies a hearing for the purpose of determining whether the proof is evident or the presumption strong in the pending felony proceeding.

The subject article reads as follows:

[Article 1, Section 8, Constitution of Utah as amended in 1973]

All prisoners shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption strong or where a person is accused of the commission of a felony while on probation or parole, or while free on bail awaiting trial on a previous felony charge, and where the proof is evident or the presumption strong.

This provision affirms the fundamental right to bail of one accused of a crime; and it does so in mandatory terms. Article 1, Section 26, compels that it be so interpreted :

The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.

There are three issues raised in the instant action: One, whether the standard thta the proof is evident or the presumption strong applies to an accused on parole or probation. Two, who must sustain the burden at a bail hearing, on this standard. Three, whether the exception clauses of this provision apply to an accused on probation or parole following a conviction for a misdemeanor.

The grammatical construction of Section 8 is as follows: Following the mandatory provision is the first exception, controlled by the standard of evident proof or strong presumption. Next come two disjunctive phrases coupled by the conjunctive phrase “and where the proof is evidence or the presumption strong.” This last phrase modifies both the preceding disjunctive phrases.

Since the right to bail is a fundamental right, the State must sustain the burden of proving the accused is within one of the exceptions.

With respect to the third issue, plaintiff urges that the proper construction of the first disjunctive phrase is:

or where a person is accused of the commission of a felony while on probation or parole because of a previous felony charge.

We think this position is well taken for the reasons that Section 8 grants a fundamental right, the exceptions create distinct classifications, which mark a departure from the norm. The capital offense exception accentuates the gravity of the nature of the offense in order to sustain a denial of a fundamental right. The second exception represents an intention to create a classification of comparable gravity, viz., a double felony standard.

Probation on a misdemeanor charge would be a radical departure from the “grave offense” standard, which is clearly expressed in the other exceptions of Section 8. Thus, the second exception applies where a person is accused of the commission of a felony while on probation or parole, because of a previous felony conviction.

TUCKETT, J., concurs. ELLETT, J., concurs in the result.