In re Ladd

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NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 91-289


In re Eugene Ladd                            Supreme Court

                                             On Appeal from
                                             Chittenden Superior Court


                                             June Term, 1991


Matthew I. Katz, J.

E.M. Allen, Defender General, and William Nelson, Appellate Attorney,
  Montpelier, for petitioner-appellant

William Sorrell, Chittenden County State's Attorney, Burlington, and
  Pamela Hall Johnson, Appellate Prosecutor, Montpelier, for respondent-
  appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   Petitioner, Eugene Ladd, who is held under an extradition
warrant, appeals the trial court's denial of his petition for a writ of
habeas corpus.  We reverse.
     On April 12, 1991, the Governor of Florida filed a request for extra-
dition, stating that petitioner had violated the terms of his probation
imposed after a conviction for theft of a motor vehicle.  The Governor's
request was supported by a copy of the judgment of conviction, dated July
14, 1983, which showed that petitioner had been convicted of the theft and
sentenced to five years' probation.  The request was also accompanied by
copies of the following documents:  (1) an affidavit of a Florida assistant
state attorney, alleging that there was "sufficient evidence" to revoke
petitioner's probation; (2) a February 1991 affidavit of a probation
officer, stating that petitioner had been placed on two years' "community
control" for theft of a motor vehicle on September 2, 1988, and alleging
that petitioner had violated various terms of his community control during
the months of September 1990 through January 1991; and (3) an arrest
warrant, dated February 5, 1991 and signed by a Florida circuit court judge,
restating each of the allegations made in the probation officer's affidavit,
with one notable exception -- the warrant stated that petitioner had been
placed on community control "on the 2nd day of September A.D. 1991." (FN1)
     In his challenge to extradition, petitioner claimed, among other
things, that the documents filed in support of the request failed to show
that he had violated the terms of his probation, (FN2) as required by Vermont's
version of the Uniform Criminal Extradition Act, 13 V.S.A. {{ 4941-4969.
Petitioner maintained that on the face of the documents, his probation had
expired long before any of the alleged misdeeds had occurred.  The trial
court rejected petitioner's argument, explaining that it would not "look
behind" the Florida arrest warrant.  Petitioner renews this claim on
appeal.
     We begin by emphasizing our limited function in reviewing the legality
of a sister state's extradition request.  Our sole task is to ensure the
validity of the requisition warrant and procedural compliance with our
extradition statute, In re Graziani, ___ Vt. ___, ___, 591 A.2d 91, 93
(1991), and we will not look behind these documents or examine the merits of
the charges against petitioner.  In re Moskaluk, ___ Vt. ___ , ___, 591 A.2d 95, 97 (1991).
     13 V.S.A. { 4943 sets out the pertinent requirements for an extradition
request based on an alleged violation of probation or parole.  Under {
4943(a), the extradition demand must include "a copy of a judgment of
conviction or of a sentence imposed in execution thereof, together with a
statement by the executive authority of the demanding state that the person
claimed has . . . broken the terms of his . . . probation or parole."  In
addition, { 4943(b) states that no extradition warrant shall be issued
unless the accompanying documents "show that . . . [the person] has been
convicted of a crime in that state and has . . . broken the terms of his
. . . probation or parole."  These two sections provide the grounds for the
issuance of an extradition warrant and must be read together.  Graziani, ___
Vt. at ___, 591 A.2d  at 93.
     We have made it clear that { 4943(b)'s mandate -- that accompanying
documents "show" that the accused has violated the terms of his probation or
parole -- imposes only a minimal burden on the part of the demanding state.
See Moskaluk, ___ Vt. at ___, 591 A.2d  at 98 (no requirement that documents
show probable cause to believe that fugitive violated his probation).
Although the burden is minimal, it is not nonexistent.  To comply with the
Uniform Criminal Extradition Act, the demanding state must establish, on the
face of its documents, that:  (1) the person sought was convicted of a
crime; (2) a period of probation or parole was imposed; (3) the person has
broken the terms of his or her probation or parole; and (4) the sentence had
not expired at the time of the alleged violation.  See In re Hval, 148 Vt.
544, 546, 537 A.2d 135, 137 (1987) (probationer subject to extradition as a
fugitive where shown to be a convict with an unexpired sentence); see also
Ingram v. Dodd, 243 Ga. 788, 788, 256 S.E.2d 778, 779 (1979) ("A probationer
whose probation has been revoked because of a violation of its conditions
may be extradited . . . on the ground that he is a convict whose sentence
has not expired, and who is 'charged with crime' within the meaning of the
United States Constitution."); Sloss v. Sheriff of Leavenworth County, 7
Kan. App. 2d 702, 703-04, 648 P.2d 255, 257-58 (1982) (person is "charged
with crime" under extradition act where there has been a judgment of
conviction, the sentence has not expired, and the person has violated the
terms of his probation).
     In the present case, the extradition request included a statement by
the Governor that petitioner had violated the terms of his probation, along
with affidavits of a state attorney and a probation officer to that effect.
The judgment of conviction, however, shows that on July 14, 1983, petitioner
was convicted of motor vehicle theft and placed on five years' probation.
On the face of this document, the original period of probation expired in
1988.  By any measure, the document is insufficient to show that
petitioner's sentence was unexpired at the time of the conduct that gave
rise to the extradition request.
     The papers go further, however, and show that petitioner was sentenced
to a two-year period of community control from September 2, 1988.  We infer,
although nothing in the documents states this directly, that the additional
sentence was imposed for violation of the terms of the probation imposed in
1983.  This interpretation is reinforced by the fact that the community
control sentence was imposed for the same acts of automobile theft as the
1983 sentence.  In any event, the documents show that petitioner's sentence
did not expire until September 1, 1990. (FN3) They do not, however, help the
State.  All of the alleged acts of probation violation occurred after
September 1, 1990.  Thus, the documents show that petitioner's sentence had
expired when the alleged violation of probation occurred.
     We recognize that the Governor's warrant is prima facie evidence that
the constitutional and statutory requirements for extradition have been met.
See Michigan v. Doran, 439 U.S. 282, 289 (1978).  We also recognize that
legal questions about the computation of petitioner's sentence are for the
demanding state to resolve.  See State ex rel. Reddin v. Meekma, 102 Wis. 2d
358, 364, 306 N.W.2d 664, 667 (1981) (question of whether parole term is
tolled while petitioner was serving prison term in Wisconsin must be
resolved in demanding state), cert. denied, 454 U.S. 902 (1981).  Once the
State puts in evidence the supporting documents, however, we must examine
them for sufficiency to determine whether they support or rebut the prima
facie case.  See Potts v. State, 378 So. 2d 264, 266 (Ala. Crim. App.),
cert. denied, 378 So. 2d 267 (Ala. 1979).  Here, they rebut that case
because they establish, if anything, an expired sentence.  The State has
offered no legal theory under which the sentence could be found to be in
effect when the alleged violations of probation occurred.  It is possible
that the discrepancies could be explained by further documents from Florida,
but that state failed to supply them.  Accordingly, the requisition
documents fail to meet the minimum requirements of 13 V.S.A. { 4943.
     The judgment of the superior court is reversed and the writ of habeas
corpus is granted, releasing Eugene Ladd from the Chittenden Community
Correctional Center in South Burlington, Vermont.  The mandate shall issue
forthwith.

                                        FOR THE COURT:




                                        Associate Justice





FN1.    The file also contains an arrest sheet.  It shows charges against
petitioner in 1984, 1987 and June of 1988, including two violation-of-
probation charges.  Presumably, the violation-of-probation charges led to
the imposition of community control on September 2, 1988.  The only charge
during the two-year period of community control is a violation of parole in
New York.
     Petitioner was charged with retail theft in January, 1991, and this
charge is alleged to be one of the violations of petitioner's probation.
Florida has not sought extradition for the charge itself, and there is no
indication whether he has been tried on this charge.

FN2.    "Community control" is defined as "a form of intensive, supervised
custody in the community, including surveillance on weekends and holidays,
administered by officers with restricted caseloads."  Fla. Stat. Ann. {
948.001(1) (1985).  Although community control is a more severe sanction
than probation, see White v. State, 465 So. 2d 627, 627 (Fla. Dist. Ct. App.
1985), we see little difference between an extradition request based on a
violation of community control and one based on a violation of probation.
For the sake of brevity, we will refer to the present case as involving an
alleged violation of probation.

FN3.    As noted earlier, one of the documents describes the community
control sentence as beginning on September 2, 1991.  This document was
obviously prepared on the basis of the parole officer's affidavit and was
intended to read September 2, 1988.  The date error is of no significance.
State ex rel. Doherty v. Duggan, 300 Minn. 528, 529, 218 N.W.2d 759, 760
(Minn. 1974).  The document is of no added help to the State.