222 N.W.2d 64 | Mich. Ct. App. | 1974
PEOPLE
v.
DONALD MOORE
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, *140 Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Lewis, White, Lee, Clay & Graves, P.C., for defendant on appeal.
Before: BASHARA, P.J., and DANHOF and CHURCHILL,[*] JJ.
PER CURIAM.
On February 20, 1970 defendant pled guilty to assault with intent to rob being armed, MCLA 750.89; MSA 28.284, and he was sentenced to five years probation. On January 16, 1973, defendant was convicted of larceny, MCLA 750.356; MSA 28.588. A probation revocation hearing was held on March 12, 1973. Defendant pled guilty to violation of probation and he was sentenced to three to ten years in prison. Defendant filed a claim of appeal from the judgment and sentence of March 12, 1973.
Defendant raises three issues, two of which concern allegations of error in the original guilty plea proceeding. Those two issues are not properly before this Court. The Michigan Supreme Court has recently decided in People v Pickett, 391 Mich. 305, 316; 215 NW2d 695, 701 (1974):
"that an appeal as of right is available either after conviction and imposition of probation or after determination of probation violation and prison sentence."
However, the scope of the second appeal is limited in that
"the appeal as of right following determination of probation violation and sentence must necessarily be limited *141 to those matters relating to the probation violation and the hearing thereon."
Therefore, those matters concerning the guilty plea proceeding are not appealable as of right at this time. GCR 1963, 803.1.
The third issue raised by the defendant involves matters relating to the probation violation hearing and is, therefore, appealable as of right under the holding of Pickett, supra.
Defendant argues that at the probation revocation hearing he was not given a written copy of the charges against him, and that he was not informed of his right to produce witnesses in his behalf. This argument is not factually supportable. Although the hearing transcript does not refer to the written charge, the lower court record indicates that on March 9, 1973, two days before he pled guilty to violating his probation, defendant was served with a copy of a notice of violation of probation. People v Springer, 17 Mich. App. 406; 169 NW2d 507 (1969). The record also discloses that during the hearing, at which he was represented by counsel, defendant was adequately informed of his right to present a defense to the charge.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
