166 N.W.2d 58 | Mich. Ct. App. | 1968
PEOPLE
v.
HERNANDEZ
Michigan Court of Appeals.
Maurice Black, for defendant on appeal.
PER CURIAM:
September 21, 1967, after a probation violation hearing, defendant's probation was revoked and he was sentenced to prison. Defendant was not represented by counsel at the revocation hearing; he was not advised of his right to counsel; nor was it determined whether or not *742 defendant desired counsel. On September 21, 1967, the law did not require that defendant be represented by counsel at a probation violation hearing nor that he be advised of his right to counsel. On the basis of Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336), defendant appeals and attacks the validity of the probation revocation and sentence.
Mempa, supra, was decided November 13, 1967, and it established that counsel must be afforded at a revocation-of-probation hearing that includes sentencing. McConnell v. Rhay (1968) 393 US 2 (89 S Ct 32, 21 L Ed 2d 2), decided October 14, 1968, made the Mempa doctrine retroactive.
Defendant's sentence is vacated and the cause is remanded to the trial court for a probation violation hearing with counsel present, unless defendant intelligently waives counsel for such hearing.
T.G. KAVANAGH, P.J., and QUINN and MILLER, JJ., concurred.
