McPhie v. Turner , 10 Utah 2d 237 ( 1960 )

WADE, Justice.

Plaintiff appeals from a denial of his petition for a writ of habeas corpus. He contends that after he was convicted and sentenced to a term in the state prison for issuing a fictitious check, he was placed on probation and later in violation of due process of law,¹ and without a hearing on whether he had violated his probation, the stay of execution was terminated, and he was committed to the state prison.

Plaintiff was originally sentenced on February 7, 1958, whereupon execution of such sentence was stayed until April 18, 1958, and he was placed under the supervision of the Adult Probation and Parole Department and released from custody. Three additional stays of execution were granted. The last one expired January 9, 1959, when the court stated “that no good cause appearing for further stay” committed plaintiff to the state prison without any hearing on whether he had violated his probation, or, as far as the record discloses, any claim of any irregular conduct.

At the hearing on plaintiff’s petition the state did not claim that he had violated his probation. It merely argued, and the court held, that since the time specified for stay of execution had expired, the court could, without any violation of his probation, determine that plaintiff was not a fit subject for probation and refuse further stay of execution and commit him to prison regardless of whether plaintiff had violated his probation.

Under these circumstances, even with a stay to a specified date, the plaintiff was, in effect, placed on probation with an implied agreement that the stay would not be terminated during his good behavior. So this termination without a hearing or any claim of misconduct by plaintiff was a denial of plaintiff’s right of due process of law. In the recent case of Baine v. Beckstead,² through Chief Justice Crockett, this court said:

“It is to be kept in mind that deferments of commitment of persons convicted of crime are of two distinct types: one is probationary, the other is not. In the latter class the stay is a temporary one for the purposes of adjustment to the exigent circumstances ; that is, to give the court time for investigation and determination of what should be done; or it may be for the purpose of allowing the defendant time to put his affairs in order; or for other similar purposes which the court may think justify such a temporary delay. Under that type of stay the defendant does not attain probationary status. Under such a stay, when the purpose for granting it has been accomplished, there is no reason why the defendant cannot be committed forthwith without any procedural formality.

“The other type of deferment, and the one we are concerned with here, is of an entirely different character. It is used when the court has made its determination and exercised its discretion to place the defendant on probation. This may be done in different ways, but whatever method is used, the purpose is reform and rehabilitation: to give the defendant a chance, as the word 'probation’ implies, to prove himself. For this purpose the defendant is required to agree to specified standards of conduct; and his continued liberty is dependent upon compliance with them. The same situation exists when he is on parole. In either case the freedom he enjoys is limited and is subject to revocation for violation of the prescribed conditions. But under such arrangements the obligations do not all run in one direction. The defendant promises to live up to stated requirements, and the public authority operating through the court extends to him the implied promise that if he makes good his probation will continue.” (Emphasis ours.)

The circumstances of that case were very similar to those here disclosed. The differences are that there plaintiff was served with an order to show cause why his probation should not be revoked and a hearing thereof was held in which plaintiff appeared and testified. The plaintiff in that case failed to bring the record of that hearing to this court, but relied instead on the fact that the court dismissed the order to show cause against him, claiming that this showed that there was no justification for the commitment. This we rejected, holding that the revocation was pursuant to the hearing notwithstanding the dismissal.

There we held that the only reasonable finding which the circumstances disclosed would justify was that plaintiff had been placed on probation for reformation in the public interest, and therefore, his stay could not be terminated unless there is a conclusive showing of a violation, or in the absence thereof, a hearing as to whether he had violated his probation. The circumstances which bear on this question, of the two cases, are almost identical. In both cases sentence was suspended to a definite date; plaintiff was placed under the supervision of the Adult Probation and Parole Department, released from custody and was granted three additional stays of execution. . Under such conditions, in the absence of an express provision by the court that the stay was for a specified purpose and not for probation, we must conclude that plaintiff was placed on probation in the interest of reformation, and that a contrary holding would be unreasonable. Had the stay been for a relatively short time, say for a week or so, or had the court expressly pointed out that the purpose for such stay was to investigate or some other reason inconsistent with probation, then a different result might be justified.

It has been suggested that this holding may cause the trial courts to deny any stay of execution because of the complications involved even in cases where the public interest requires probation. We see no merit to this contention. It suggests that courts, in order to exercise arbitrary and capricious power, will violate their oath of office and their duty to the public. Why should any honest judge adopt such a policy? The very suggestion shows a lack of confidence in the integrity of our courts, which we do not share.

The ruling committing the defendant is reversed and the case is remanded to'the district court for such further proceedings as is deemed advisable and not inconsistent with this opinion.

CROCKETT, C. J., and McDONOUGH, J., concur.

1 . See Constitution of Utah, Article I, Section 7.

2 . Baine v. Beckstead, 10 Utah 2d 4, 347 P.2d 554, 557.