State v. Sullivan

I cannot concur in the opinion of Chief Justice Gary. In my opinion the appellants should have been personally served with the rule to show cause. If he could not be found to be personally served, and proof had been presented to Judge Wilson that he had been probably guilty of violating his suspended sentence, Judge Wilson could have issued a bench warrant, and when found he could have been arrested and brought into Court; then the defendant could have answered the rule and could have been allowed to show the falsity of the charge, if he could.

This is a proceeding on the criminal side of the Court, not the civil, and the rules of service on the civil side of the Court do not govern. The defendant is entitled to be personally served, unless he waives it and appears in person. It seems to me that the same practice and procedure should prevail as to a suspended sentence imposed by the Court, as prevails in reference to a suspended sentence or conditional pardon imposed by the Governor. The same practice should prevail in governing the vacation of a conditional pardon by the Governor as to a suspended sentence imposed by a Court.

This practice and procedure has been passed upon by the Courts of this country. We find in 20 R.C.L. p. 574, this:

"The proceeding to test the question whether or not there has been a violation of or noncompliance with the condition or conditions of a pardon is purely informal. The establish practice at the common law and in the American States, in the absence of statutory regulation, and in the absence from the pardon itself of expressed stipulations for that purpose, is for some Court of general criminal jurisdiction, upon having its attention called by affidavit or otherwise to the effect that the pardoned convict has violated or failed to comply with the condition or conditions of his pardon, to issue a rule reciting the original judgment of conviction and sentence, the pardon and its conditions, and the alleged violation of or noncompliance with the condition or conditions thereof, and requiring the sheriff to arrest the convict and bring him before the Court to show cause, if he can, why the original sentence imposed upon him should not be executed."

In this case this procedure was followed, except that the defendant was not arrested or served personally. Under the rule the Court did not acquire jurisdiction of the person of the defendant.

We find the following in Lucero v. McManus,23 N.M., 438; 168 Pac., 715, L.R.A., 1918C, p. 551:

"Upon principle it would seem that due process of law would require notice and opportunity to be heard before a defendant can be committed under suspended sentence. The suspension of the execution of the sentence gives to the defendant a valuable right. It gives to him the right of personal liberty, which is one of the highest rights of citizenship. This right cannot be taken from him without notice and opportunity to be heard without invading his constitutional rights."

There is no doubt in my opinion that the enforcement of the conditions of a suspended sentence alleged to have been violated is in its nature criminal and not civil, and the rule as to the service of notice in a civil proceeding does not govern. I think that the attempted service was illegal, null, and void, and that the Court was without jurisdiction, and that the order of Judge Wilson should be vacated and reversed.