On November 29, 1974, defendant was placed on 2 years probation after pleading guilty to attempted receiving and concealing stolen property over the value of $100. MCLA 750.535, MCLA 750.92; MSA 28.803, MSA 28.287. On March 6, 1975, the police executed an authorized search warrant at 2557 Fairview in Detroit where they found defendant and confiscated certain items. As a result of this search, on April 24, 1975, a warrant was issued for defendant’s arrest for violation of the controlled substances act. At the arraignment on this charge on June 10, 1975, a preliminary exam was set for June 18, 1975.
A notice of probation violation and warrant were issued on June 17, 1975. At the June 19, 1975 arraignment on this warrant, a probation revocation hearing was set for June 25, 1975. Between June 19 and November 7, 1975, defense counsel was granted two continuances. On November 7, 1975, when the hearing was finally held, the court found defendant had violated the terms of his probation and revoked it. Defendant was then sentenced to 1-1/2 to 2-1/2 years in prison on the original attempted receiving and concealing stolen property conviction. Defendant appeals from the order revoking his probation. We affirm.
Three issues are raised oh appeal. Defendant *384 first contends that the delay between the incident violating probation, the notice of violation and the hearing constituted a denial of due process since the authorities failed to act with "due diligence”. The event violating probation occurred March 6, 1975; the notice of probation violation and warrant were issued on June 17, 1975; and the revocation hearing took place on November 7, 1975.
This Court has held that a warrant for an alleged probation violation must be executed with due diligence and that failure on the part of the authorities to proceed with due diligence results in a waiver of the violation.
People v Henry,
The 5-month delay between the notice of probation violation on June 17 and the revocation hearing on November 7 was attributable to defendant or was for his benefit. This undermines the validity of defendant’s claim as to lack of due diligence during the 5-month period.
People v Collins,
To ascertain whether the authorities exercised due diligence between the incident allegedly violating probation and the issuing of the probation violation notice, we consider it appropriate to refer to the guidelines established by our Supreme Court in the speedy trial cases. In People v Collins, supra, the Court cited the factors to be taken into account in deciding whether a defendant has been deprived of his right to a speedy trial, three of which are relevant here: length of delay, reason for delay and prejudice to the defendant.
The delay from the date of the incident to
*385
arraignment on the probation violation notice was 3-1/2 months. This Court has, in various circumstances, approved delays of from 6 months,
People v Henry, supra,
to 3 years,
People v Diamond,
Defendant’s second assertion is that he was denied due process because he did not receive a preliminary probable cause hearing in the matter of his probation revocation. The due process standards of
Morrissey v Brewer,
*386
In addition, since defendant was free on bond and alleges no prejudice as a result of the delay, we find no due process violation.
Cf. United States v Sciuto,
531 F2d 842 (CA 7, 1976), and
Callison v Department of Corrections,
Finally, this Court observed in
People v Leroy Jackson, Jr., supra,
that several jurisdictions have held there are certain situations in which a preliminary hearing for probation revocation need not be held although due process standards will still be met.
Defendant’s last claim of error is that there were not sufficient verified facts presented at his probation revocation hearing from which the court could find that he had violated his probation order. The notice of probation violation issued June 17, 1975, stated:
"3. That the conditions of probation were as follows:
"(1) Probationer shall not violate any criminal law of the State of Michigan or any ordinance of any municipality of the State.
*387 "4. That BUFORD MILLER has violated the terms of his probation as follows:
"Defendant has been arrested on a charge of V.C.S.A. —Docket #75-03056; Examination will be 6-18-75. On 3-6-75 Wayne County Metropolitan Narcotics officers executed a search warrant at 2557 Fairview. This premise is occupied by the defendant, Buford Miller. Found in the private residence was defendant Miller, as well as narcotics paraphernalia and narcotics.”
In a probation revocation hearing the standard of proof to be applied is a preponderance of the evidence.
People v Billy Williams,
There is difficulty with the officer’s testimony as to the amount of heroin found on the premises in light of the subsequent motion for dismissal of the controlled substances charge which stated that the amount of heroin found was .04 grams, not .4 grams as the officer testified at the hearing. This difficulty is compounded by the action of the trial *388 court in cutting off defense counsel’s cross-examination of the officer concerning heroin found on the premises.
However, any error committed by the trial court in this matter is not reversible. Based on the other evidence presented at the hearing, we conclude that there was sufficient support for the trial judge to find by a preponderance of the evidence that the items found were narcotics paraphernalia which belonged to defendant and that because of such possession he had violated his probation order.
Affirmed.