Ex Parte Dietz
This petition for writ of certiorari raises the question of whether the Court of Criminal Appeals, 474 So.2d 120, erred in affirming petitioner‘s conviction for escape in the first degree under
George Stephen Dietz, the petitioner, was arrested by offiсers of the Hartselle Police Department on June 24, 1981, and charged with driving under the influence and driving without a license. At the time, he was on probation pursuant to a conviction in 1978 for two counts of burglary. After Dietz spent one night in the city jail, a Morgan County sheriff‘s deputy took custody of him on June 25th, 1981, and transported him to the county jail. On February 4, 1982, Dietz left the county jail, apparently taking advаntage of minimal supervision over him due to his status as a trusty.
The State charged Dietz with the felony of first degree escape for this unauthorized departure from the county jail and obtained а conviction and a habitual-offender sentence of life in prison pursuant to
It is settled law that a probationer has a conditional liberty interest protected by the Fourteenth Amendment to the United States Constitution. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This liberty “is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.” Id., at 482, 92 S.Ct. at 2601.
“upon the request of the probation officer. . . . In the case of an arrest without a warrant, the arresting officer shall have a writtеn statement by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation, and said statement shall be sufficient warrant for the detention of said probationer in the county jail or other appropriate place of
detention until such probationer shall be brought before the court.”
Warren McDonald, Dietz‘s probation officer, testified that he knew he was required to make a written statement in order to authorize an officer to arrest a probation violator and normally did so; and that he did not do so in this case. The statute makes it clear that this stаtement is in lieu of a warrant. No warrant was issued in this case. Section
The Court of Criminal Appeals, applying the precursor of §
The State contends that no written statement was necessary because McDonald himself was the arresting officer. In light of the scheme of §
The State also contends that, because Dietz‘s arrest by the city police was lawful, he was in lawful custody even after he was transferred to the county jail. The reсord indicates, however, that Dietz would have been released from the city jail on or about June 25th if McDonald had not requested the police to hold him and asked the sheriff to bring him to the county jail. If he had been released from the city jail and McDonald had sent the sheriff to arrest him at his home, §
Finally, the State contends that the deputy had probable cause to arrest Dietz as a suspected probation violator on the basis of what McDonald told the sheriff‘s depаrtment. Section
Having established that Dietz was not in fact in lawful custody in the county jail, we must now address the Court of Criminal Appeals’ holding that Dietz was in custody under color of law and thus could not challenge his custody by escaping. Wе stress at the outset of this discussion that we agree with the general authority that a
In addition to the unlawfulness of the arrest, the lack of authority for Dietz‘s incarceration is evident from the testimony of the clerk of the Circuit Court of Morgan County that he had no record of Dietz‘s рresence in the jail after he was released on probation. The “arrest and booking slip” to which the Court of Criminal Appeals referred as “charging” Dietz with probation violation wаs only the jailer‘s notation, not an official court record. The report which McDonald gave to the circuit judge‘s secretary two weeks after Dietz‘s arrest was not filed with the circuit clerk.
The Court of Criminal Appeals’ statement that the purpose of the probation officer‘s written authorization is “to ensure that there is sufficient certainty of a violation to makе the arrest appropriate” is true enough. The written statement is also the process to which a probationer is due under our system of constitutional law. It serves as a substitute for a warrant which would otherwise be issued by the court.
It is not clear from the record whether a copy of the authorization statement is normally filed with the circuit clerk, although McDonald made the general stаtement, “I never filed one,” regarding his failure to complete a written statement to regain custody of Dietz. Whether this written statement would produce a court record of a probаtioner‘s custody or is merely a minimal indication of official action, we cannot say under the circumstances that Dietz‘s imprisonment without such a written statement was “under color of law.”
The United States Supreme Court held in Gagnon, supra, thаt an accused probation violator is entitled to the same due process guarantees as those recognized for parolees in Morrissey, supra. The Morrissey rights include a preliminary hearing “as soоn as convenient after arrest” for an officer not directly involved in the case to determine whether there is probable cause to believe the accused has violated the conditions of his liberty. Id., 408 U.S. at 485, 92 S.Ct. at 2602. Section
The burden is on the State to prove all the elements of the crime of escape. Lawful custody is onе such element. Eady v. State, 369 So.2d 841 (Ala.Crim.App.), cert. denied, 369 So.2d 843 (Ala. 1979); Phelps v. State, 416 So.2d 766 (Ala.Crim.App. 1982); Pinkard v. State, 405 So.2d 411 (Ala.Crim.App. 1981). The State did not prove lawful custody in this case, so the trial court should have granted Dietz‘s motion for judgment of acquittal. The Court of Criminal Appeals erred in affirming the judgment of conviction; its decision is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.