Opinion
No. 23214
Decided October 6, 1967.
Criminal law — Defendant on probation — Sentence imposed after expiration of probation period — Court without jurisdiction — Habeas corpus.
When a defendant is placed on probation for a two-year period and the record fails affirmatively to show the defendant has absconded or otherwise absents himself from the jurisdiction of the court, or is confined in any institution for the commission of an offense causing the probation period to cease to run, a court is without jurisdiction to impose sentence nine months and six days subsequent to probation expiration. In such case a petitioner is entitled to discharge by habeas corpus proceeding.
Mr. James Lamar Miller, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William B. Baird, for respondent.
Petitioner seeks allowance of a writ of habeas corpus. Respondent was directed and has filed a return as upon the allowance of the writ. There is no controversy on the facts and we proceed to determine the question on the petition and the return.
Petitioner pleaded guilty to the offense of assault with a dangerous weapon, as charged by information dated November 30, 1963. On the same date imposition of sentence was suspended by the Common Pleas Court and he was placed on probation for two years under the provisions of Section 2951.01 et seq. of the Revised Code.
The record is silent as to when petitioner was taken into custody as a probation violator, but on September 6, 1966, nine months and six days after the two-year probation term expired, he was found to be a probation violator in that he failed to report as required, failed to pay the court costs and "has been convicted of violations of laws, statutes and ordinances in effect in this state, all as heretofore set forth." None of the violations are set forth in the record before us. He was sentenced to one to five years in the Ohio State Penitentiary. It is to be inferred that any such offenses occurred following the expiration of the two-year probation period.
In any event, the record is silent and it fails to affirmatively appear that the probation period was suspended either under terms of Section 2951.07 of the Revised Code or otherwise prior to expiration of the two years on November 30, 1965. Section 2951.09 of the Revised Code provides:
"When a defendant on probation is brought before the judge * * * under Section 2951.08 of the Revised Code, such judge * * * shall immediately inquire into the conduct of the defendant, and may terminate the probation and impose any sentence which might originally have been imposed * * * at any time during the probationary period. * * *" (Emphasis added.)
It requires no citation of authority to state that all criminal procedure in this state is statutory. Common Pleas Courts have no inherent power with respect to extending or revoking probation and may proceed only as authorized by statute. See 16 Ohio Jurisprudence, 2d 68, Criminal Law, Section 700 and cases cited.
In Ex Parte Miles (1930), 35 Ohio App. 553, 8 Ohio Law Abs. 547, 172 N.E. 703, the defendant was placed on probation for one year on February 5, 1927. On February 10, 1928, the term was extended twelve more months, which was five days after the original year had expired. On December 14, 1929, he was sentenced to the penitentiary.
The court granted defendant's writ of habeas corpus and ordered defendant discharged from custody. The statute construed was Section 13711 of the General Code, analogous to Section 13452-7, General Code, the immediate predecessor of Section 2951.09 of the Revised Code.
An identical order was issued by the same Court of Appeals in Jasinsky v. State (1930), 9 Ohio Law Abs. 165.
We have Shepardized the cases and find no change in the statutory construction or law to permit the action of the Common Pleas Court here in question.
It is to be noted, in passing, that it fails to affirmatively appear that the written report provisions of Section 2951.02 of the Revised Code, was complied with on or before November 30, 1963, when the probation order was entered.
We conclude therefore that the court had no jurisdiction on September 6, 1966, to impose sentence on the defendant before it. That jurisdiction to do so expired on November 30, 1965, and that petitioner is entitled to an order of discharge directed to the respondent.
An entry is accordingly made and entered.
Petitioner discharged.