State Ex Rel. Carlton v. Haynes

SHANGLER, Special Judge,

concurring in result.

The principal opinion finds no cause for discharge of the petitioner on habeas corpus, and on the singular chronology of the events pleaded and proved, I concur. I do not concur, however, that the opinion can serve as precedent for the construction the court gives to §§ 549.071 and 549.101, RSMo 1969, as amended, except under circumstances which antedate Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and those opinions which have since invested the procedures to alter or revoke a probation already granted with benefits of due process.

*716The petition for habeas corpus contends that the three year period of probation imposed by Judge Nangle on October 22,1970, and extended to five years on April 13, 1973, was fully served by October 22, 1975, ■ that the period thereafter until formal revocation on November 21, 1975, was an impermissible second extension of probation under § 549.107.1 and so he was entitled to absolute discharge from custody under § 549.111.1.

The court answers that the issuance of capias and arrest of petitioner were both accomplished before expiration of probation, and that the hearing scheduled within that time was postponed because of the physical disability of petitioner to appear. The court explains that while summary revocation of probation was a method available to preserve jurisdiction over the person of the petitioner, commencement of revocation proceedings by warrant and arrest within a reasonable time after knowledge of the violation — and before expiration of the probation term — accomplished the same purpose. The court goes on to say that, in any event, the burden is on petitioner to show prejudice from delay of the final revocation hearing, a proof not made here.

I all but agree with the response by the court to this first contention. The use of summary revocation of probation as a means to preserve jurisdiction of the court — but not as a substitute for the hearings required for substantive revocation— over a subject who escapes and remains at large does not offend the due process requirements of Morrissey and Gagnon. A probationer should not be allowed to profit from his abscondence by the claim, after the period of probation has terminated, that the court no longer has jurisdiction over him. People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313 (Bank 1972); Brandt v. Percich, 507 S.W.2d 951, 957[9] (Mo.App.1974). This discussion of summary revocation is precluded here by the fact that the delay was occasioned by the probationer and for the benefit of his physical condition. In a word, the petitioner waived the hearing scheduled for within the probationary period and simply cannot be heard to complain that the adjudication of his status was determined after the end of the formal term of probation. People v. Ham, 44 Cal.App.3d 288, 118 Cal.Rptr. 591, 595[6] (1975); People v. Journey, 58 Cal.App.3d 24, 129 Cal.Rptr. 478, 480 (1976).

I do take issue with the holding of the opinion that in the circumstances presented the burden was on petitioner to show prejudice from the delay in the conduct of revocation hearing. Ewing v. Wyrick, 535 S.W.2d 443 (Mo. banc 1976) does not bear on the point to which it is cited by the court because that hearing was eventually held within the probationary period. In view of the provision in § 549.111.1 for the automatic and absolute discharge of a probationer upon completion of his term, however, where the probation is revoked after the expiration of the designated term, the burden to go forward with evidence that there was legal excuse for the delay falls on the State, not the probationer.

The petition for habeas corpus makes the second contention that § 549.071.1 which provides that no probation for a felony may be granted for a term longer than five years and may be extended only once and § 549.101.2 which purports to allow a second probation for the same conviction are in conflict, and consequently the later enactment which limits probation for a felony to five years repeals the earlier statute by implication and governs. The petitioner contends he has served the full five year term of probation and is entitled to be discharged from custody.1

The opinion finds these statutes compatible because although under § 549.071.1 a person cannot be ordered to serve more than five years on any one term of proba*717tion, under § 549.101.2 the court may order a person to serve two terms of probation for one conviction, and as a result the second period of probation imposed by Judge Challis was proper under § 549.101.2 following the revocation of the first probation [the total of five years imposed by Judge Nangle]. The opinion sees a difference between an extension of probation already granted [§ 549.071.1] and a grant of second probation upon revocation of the first for the same conviction [§ 549.101] and so comes to a view that these statutes permit a term of probation under a conviction for felony which could exceed five years and two enlargements of the probationary term.

Such a construction may have been plausible when these statutes — and their amendments — were enacted, but these statutes have since become suffused with the due process values of Morrissey and Gagnon and can no longer be understood outside of that matrix; §§ 549.071 and 549.101 were enacted (1963) at a time when the grant or probation and the continuation of that status were within the complete discretion of the trial court. The grant of probation was purely a matter of grace and could be terminated as readily as it was granted. In fact, a defendant accepted probation subject to the condition that the court could revoke that status without further notice. State v. Collins, 225 Mo. 633, 125 S.W. 465, 466 (Mo.1910). Nor was it denial of due process to revoke a probation without notice or hearing. State v. Small, 386 S.W.2d 379, 382[8] (Mo.1965); State v. Brantley, 353 S.W.2d 793, 796 (Mo.1962). Further, revocation of probation was [and remains] not subject to appellate review. § 549.141.

Thus, at the time of these enactments the extension of probation aspect of § 549.071 and the revocation of probation with or without hearing provision of § 549.101 were acceptable procedures.2 Then came Morris-sey and Gagnon which colored these pro-eeedings with principles of due process. That decision prompted recognition by the Missouri Supreme Court that probation, once given, was a right which could not be taken away without due process, and the court fashioned a remedy by habeas corpus to review the legality of revocation proceedings. Green v. State, 494 S.W.2d 356, 357[2-4] (Mo. banc 1973). In this manner, § 549.141, which denies a conventional appeal from revocation of probation has been judicially modified to reflect the impact of Morrissey and Gagnon.

In Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974), the St. Louis District of the Missouri Court of Appeals undertook to formulate procedures for the revocation of probation to comport with the due process requirements of Morrissey and Gagnon. That court made parenthetical reference that the language of § 549.101 which allows revocation without hearing was not compatible with Gagnon. 507 S.W.2d at 948, n. 4. [The constitutionality of § 549.101 was questioned, but not decided, by the Missouri Supreme Court en banc in Green v. State, supra, l.c. 357[5]]. The effect of Moore v. Stamps, supra, and those numerous cases which have followed its rationale, is to judicially modify § 549.101 so that a court may not revoke probation without a hearing. These cases do not consider the right of a court on discretion to extend probation without comparable hearing and due process procedures.

The response of the principal opinion to the second point is based on the assumption that an extension of probation is something different from a revocation of probation. It may have been when the statutes were written and as they were written, but no longer. It is the interest of the parolee in his continued liberty which due process surrounds and protects. When probation is offered and accepted as an option to commitment [Morrissey v. Brewer, supra, 408 U.S. l.c. 482, 92 S.Ct. l.c. 2601]:

*718[t]he 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 ... We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee.

The expectation of regaining this “unqualified liberty” after the conditions of probation have been met and the fixed period of probation has ended are of equally vital significance to the probationer. United States v. Strada, 503 F.2d 1081, 1083 (8th Cir. 1974). Thus, an order which extends probation without cause is as offensive as one which revokes probation without cause. That is to say, a court may no more extend a term of probation already fixed without notice, hearing and cause, then to revoke it altogether.

When these statutory terms are seen as equivalents, and not of different import in terms of due process requirements, §§ 549.-071.1 and 549.101.2 are understood to mean that only one increment in the probation term under the same judgment may be allowed, whether by extension or by a new probation, and that the total term of probation shall not exceed five years.

I would not apply this suggested rationale to these proceedings,- however, because the petitioner does not seek discharge on constitutional grounds. Further, at the time Judge Nangle summarily revoked, reinstated and extended probation [April, 1973], Gagnon [effective May 14, 1973] which applied the parole proceedings due process requirements of Morrissey to probation had not been decided nor given effect by an appellate court of this state.

I come to this position with awareness of the decision of this court in Ockel v. Riley, 541 S.W.2d 535 (Mo. banc 1976). That case posed the broad question [l.c. 541]: “whether the continuation or extension of probation constitutes such a grievous loss as to constitutionally require prior notice and hearing”. The answer of the court was more limited than the question.

Ockel had pleaded guilty to a felony and was placed on probation for a term of three years. Throughout that period of supervision, Ockel was heedless of the conditions of probation, was convicted of petty offenses, kept a gun, and was simply a chronic violat- or. About two months before the probation term was to have expired, he was arrested on a warrant which charged violation of probation conditions. He admitted the assault which was the subject of the warrant, and that proceeding was withdrawn. In the face of these infractions, some of which apparently there had not been time to evaluate, the trial court — within a month and a half of the expiration of the term — ordered probation extended for another two years. Thereafter, during the extended term, another violation warrant issued, but Ockel was continued on probation.

Ockel brought habeas corpus on the contention that he was entitled to unconditional discharge from custody because he had served the full three yéar term of probation without revocation, and that the two year extension for that term, without notice or hearing, was unlawful.

It was within this context that Ockel concluded [with basic reliance on Skipworth v. United States, 508 F.2d 598 (3rd Cir. 1975)] that neither notice nor hearing were required prior to an order to extend the term of probation. As in Skipworth —where charges still pended against the probationer when the court acted to extend probation about to expire in five days — and in Ockel — where the court acted within weeks of the expiration of the term — there was uncertainty that the court had sufficient reliable information on hand to revoke or discharge before the termination date then imminent. Ockel gives this rationale [l.c. 543]:

What is demonstrated by the facts of all of these cases is that, as a practical matter, the judge does not or may not receive the information as to the probationer’s conduct until shortly before the initial term of probation expires. The judge is then faced with the alternative of allowing the probation period to expire with *719consequential discharge of the probationer, or giving a quick hearing on revocation and consequent imprisonment, or extending the term of probation. The judge’s obligation is to act responsibly in the matter and to do so requires time and thought. Extending the term does not drastically change the status of the probationer but does provide the necessary time to give the matter due consideration.

This postulate I understand to fall within the dictum of the principal opinion — with which I agree — that when exigent circumstances compel, a court may by summary order preserve jurisdiction over a probationer which would otherwise be lost by expiration of the probation term.3

In whatever terms Ockel must be understood, however, by its own rationale it has no application to the extension ordered by Judge Nangle six months before expiration, prompted neither by infraction, misconduct, nor by reason of impending termination. On its face the judicial act was arbitrary. A convict who accepts terms of probation understands that if those conditions are met uneventfully for the period imposed, he will then be a free man. Sanford v. King, 136 F.2d 106, 108[4, 5] (5th Cir. 1943). The right to unhindered movement, consort and occupation are the nurture of a free society. To extend probation for any significant period is to impair these rights and inflicts a grievous personal loss. Morrissey, supra, l.c. 482. To do so without legal cause is to break faith with the principles of due process.

I would insist, then, that except for the unusual circumstance when summary continuation of probation is necessary to allow time to determine whether there is cause for revocation — which a court in any event may do even without express authority of statute — the extension of probation under § 549.071.1 and the revocation and grant of a second probation under § 549.101.2 are equivalent in terms of due process, so that the grant of either under one judgment of conviction is all that our law allows.

For these reasons, I concur in the result of the principal opinion.

. It will be recalled that the petitioner has been ordered to serve a total of eight years probation on the first degree robbery conviction: the initial three year term imposed by Judge Nan-gle on October 22, 1970, the two year extension by Judge Nangle on April 13, 1973, and the three year term of probation imposed by Judge Challis following the October 22, 1975, revocation of probation.

. It is of interest that from 1957 to 1961 there was a Missouri enactment, § 549.254, RSMo 1959, which required that prior to arrest for violation of probation, notice of violation was to be served on the probationer, and after arrest, he was to be brought before the court without unnecessary delay for hearing which could be informal. This statute was repealed by Laws, 1961, p. 338.

. Skipworth makes it clear, however, that an ex parte extension of probation for any significant period is prejudicial [l.c. 602[8]]:

. . . [B]ecause of the potential for prejudice in such extensions, we are in agreement with the district court in Freeman [U. S. v. Freeman, D.C., 160 F.Supp. 532] [also relied on by Ockel ] that they are inadvisable. Accordingly, we will hereafter require district courts in this Circuit before extending probation to provide notice to the probationer of the proposed extension should he so desire, together with the assistance of counsel. [Latter emphasis added.]