State ex rel. Raines v. Madison County Superior Court, Room No. 3 , 268 Ind. 623 ( 1978 )

Givan, C.J.

On March 19, 1976, Harold Smith was convicted of armed robbery and was sentenced to a determinate term of 15 years. He was paroled on September 7, 1977. Subsequent to his parole the Indiana Department of Correction discovered that documents relating to his time served had been altered and that he had served approximately one thousand (1,000) days less on his conviction than his records indicated. A warrant was issued to retake Smith and a hearing officer conducted a hearing on November 18, 1977. The officer remanded Smith to the Indiana Reformatory and a full hearing of the Parole Board was scheduled on the matter for December 16.

On November 30, 1977, Smith filed a petition for a writ of habeas corpus in the Madison Superior Court. The court ruled in Smith’s favor on December 15. On learning of the ruling, the State sought an emergency writ of mandate and prohibition from this Court. An emergency writ was granted on December 16. On December 20, an oral argument was held and a temporary writ issued by the full Court.

Relator first contends the trial court had no jurisdiction over this cause. He relies upon PC. 1, Sec. 1(c), to support his argument that the trial court could assume jurisdiction only for the purpose of transferring the cause to the court of conviction, the Marion Criminal Court. PC. 1, Sec. 1(c), provides that, “. . . if a petitioner applies for a writ of habeas corpus, in the court having jurisdiction of his person, attacking the validity of his conviction or sentence, that court shall under this Rule transfer the cause to the court where the petitioner was convicted or sentenced. . ..” The rule applies only where the petitioner effects a collateral attack upon his conviction or sentence. Hawkins v. Jenkins, (1978) 268 Ind. 137, 374 N.E.2d 496. Here, as in Hawkins, petitioner challenges the action of the Parole Board in revoking his parole. The trial court therefore properly assumed jurisdiction and was under no duty to transfer the Cange to the court of conviction,

The statute vesting the Parole Board with the authority to retake parolees is IC § 11-7-1-4 [Burns 1973] :

“If the agent and warden of the prison from which such prisoner was paroled, or said board or any member thereof, shall have reasonable cause to believe that the prisoner so on parole has violated his parole and has lapsed or is probably about to lapse into criminal ways or company, then such agent and warden or said board, or any member thereof, may issue his warrant for the retaking of such prisoner, at any time prior to the maximum period for which such prisoner might have been confined within the prison walls upon his sentence, which time shall be specified in such warrant.”

The trial judge interpreted this statute to allow the Parole Board to retake a prisoner only where (1) he has violated his parole, or (2) he has lapsed or is about to lapse into criminal ways or company. Since the State had not adduced evidence showing the existence of either a parole violation or criminal tendencies, the court held that the Parole Board had no authority to retake Smith.

We have no occasion to pass upon this interpretation of the statute. The statute is inoperative in the case at bar. If the Board’s determination of parole is based on false records, the parole must of necessity be deemed void ab initio. To hold otherwise would be to permit a prisoner to benefit from the falsification of official records. Since Smith’s parole was void ab initio, the only valid record concerning Smith was his commitment to the Indiana Reformatory. It was the duty of the Reformatory officials to arrest Smith and return him to the institution to serve his time pursuant to the mandate of that commitment. The trial court had no authority to interfere with that duty.

The temporary writ of mandate and prohibition is hereby made permanent.

Hunter, Pivarnik and Prentice, JJ., concur; DeBruler, J., dissents with opinion.