Defendant appeals the order of the Detroit Recorder’s Court revoking his probation, alleging that the court employed an erroneоus standard of proof for violation of probation and that one condition of probation violated the equal protection clаuse. 1 We find his appeal without merit and affirm the order of revocation.
On October 22, 1972, defendant pled guilty to a charge of unlawfully taking and using an automobile. 2 He was placed on 2 years probation by Judge Joseph Maher of Detroit Recorder’s Court. A probation order, issued November 17, 1972, inсluded a number of conditions of probation, those of most immediate concern being:
"1. That probationer shall serve first 6 months of probation period in Detroit House of Correction.[ 3 ] 2. That probationer shall pay the costs as follows: $150 * * *
"All costs and restitution are payable thirty (30) days priоr to expiration date of this order unless otherwise noted. * * *
“General Conditions of Probation:
*70 "A. Probationer shall not violate any criminal law of the State of Michigan or any ordinance of any municipality of the State, nor attempt to do so, nor make any preparation leading to the same.”
On June 1, 1973, a notice of probation violation issued, 4 stating:
"(1) On December 23, 1972, prоbationer escaped from the Detroit House of Corrections, no contact since that time.
"(2) Probationer has paid nothing on his $150.00 money assessment in the form of court costs.”
At the probation revocation hearing, August 9, 1974, defendant, with counsel present, admitted that he left Detroit House of Correction without permission after serving about 30 days. The court held that defendant violated his probation.
Although Michigan courts have never explicitly stated the standard of proof required in a probation revocation hearing,
5
the general rule appears to be that violation of a condition of probation need only be shown by a preponderance of the evidence.
6
The rationale for this standard is that a probation revocation hearing is not a part of a criminal prosecution and, thus, the state need not provide the full panoply оf rights due a criminal defendant.
Cf., Morrissey v Brewer,
This standard of proof is to be applied whether the probation violation charged is deemed a criminal oifense or the failure to fulfill a condition of the probation order. 7 Thus defendant’s conduct, be it dubbed a criminal escape, or a failure to fulfill the condition of six months in the Detroit House of Correction, is to be judged by the preponderance of the evidence standard.
The sole question on review of the finding of violation of probation is whether the trial judge could find by a preponderance of the evidence that the probation order had been violated.
Cf., Flat Hots Co, Inc, v Peschke Packing Co,
Here, whеre the defendant, in the presence of counsel, admitted having left the Detroit House of Correction without permission, the judge could clearly determine that the prosecutor had proven his charge and there were verified facts to support the revocation.
The secоnd issue, concerning the probation condition requiring the payment of costs,
8
raises equal
*72
protection concerns. In particular, the defendant clаims that the imposition of costs has invidious results in that poor probationers may have probation revoked more often than wealthier probationers. An equal protection argument very similar— concerning revocation of probation for failure to reimburse attorney’s fees — wаs apparently unresolved in
Fuller v Oregon,
In Michigan,
People v Gallagher,
Defendant contends that there was no inquiry of his ability to pay. However, it was incumbent upon defendant or his counsel to raise below the issue of inability to pay to gain the protection of the equal protection doctrine. We can find in the record no objection voiced to the requirement of costs.
9
Without giving the judge an opportunity to consider inability to pay, defendant cannot successfully
*73
appeal on this issue.
People v Double,
There is, however, an issue concerning the probation condition of payment of costs that troubles us. The probation order required that the $150 be paid "thirty days priоr to the expiration date of this order”. The expiration of the order was at the end of the two-year-probation period, November 17, 1974. Thе notice of violation was issued June 1, 1973 and the hearing was August 9, 1974, both dates being prior to the due date of the costs. The probation condition of рayment of costs was therefore not violated as of the notice date or the hearing date. Defendant has not appealed on this issue, but we are concerned nonetheless. If the trial judge considered nonpayment of costs and gave significant import to an erroneоus finding that the condition was violated, we would be required to remand for a new revocation hearing. Our reading of the hearing transcript, however, convinces us that the judge relied almost exclusively on the escape from the Detroit House of Correction as the reason for revocation. Consideration of the alleged violation for nonpayment of costs, while erroneous, was harmless in this case.
The order of revocation of probation is affirmed.
Notes
US Const, Am XIV; Const 1963, art 1, § 2.
MCLA 750.414; MSA 28.646.
A condition of six months residеnce in the Detroit House of Correction is a permissible probation condition by MCLA 771.3; MSA 28.1133.
Written notice of specific probation violation charges is necessary.
E.g., People v Collins,
People v Pippin,
See, e.g., United States v D’Amato,
429 F2d 1284, 1286 (CA 3, 1970),
People v Sax,
71 Ill App 2d 433;
People v Pippin, supra,
n 5, concerns an alleged violation of probation by the attempted commission of a criminal act. The cаse requires that all elements of the crime, or attempted crime, be shown but does not require a beyond reasonable doubt standard of proof. Rather, the court merely requires "a finding that the defendant violated a criminal law”.
This challenge is
not
based on reimbursement of attorney’s fees, a challenge involving more complicated right to counsel questions. US Const, Am VI Const 1963, art 1, § 13.
Compare State ex rel Brundage v Eide,
83 Wash 2d 676;
In fact, the defendant told the court that he was self-employed. Moreovеr, at the end of the hearing, the judge informed the defendant that if he were financially unable to afford counsel for appeal, the court would appoint counsel.