Lead Opinion
This is an appeal of right from a plea of guilty to larceny from an automobile. MCLA 750.356a; MSA 28.588(1). Defendant was sentenced to 180 days in jail, 160 immediately and 20 days when directed. No credit was given for the 14 days she had served at the time of sentence and she was placed on 5 years probation.
The main thrust of appellant’s argument is that the conditions of probation are onerously unreasonable. Her counsel on appeal attacked them with a vigor and intensity which bespoke deep conviction. She characterized them as impossible of performance, impermissibly vague and constitutionally infirm as violative of due рrocess.
Before addressing ourselves to the multiple assignments of error, we must again make clear that we are not a sentence review board.
We are not empowered to substitute our judgment for that of the trial judge on lawful conditions of probation [People v Higgins,
In the sequence of assignments of error, the first is thus phrased in appellant’s brief:
'!Appellant’s plea of guilty to larceny from an automobile was coerced by the threat of prosecution on a charge for which probable cause to bind her over did not exist and appellant is therefore entitled to a new trial.”
This is in a sense a two-pronged argument that is developed as follows. There was insufficient evidence adduced at the preliminary examination to justify binding appellant over on the original charge of unlawfully driving away a motor vehicle. MCLA 750.413; MSA 28.645. Having thus been improperly bound over and thereafter tendering a plea of guilty to the offense of larceny from an
We find no jurisdictional infirmity. We follow the well-established rule that a plea of guilty waives all nonjurisdictional defects. People v Potts,
The second question presented is:
"Where the trial judge failed to inform appellant that probation as a sentence can cоntain severe restrictions and conditions which if violated can result in a maximum sentence greater than that prescribed by statute, was appellant’s plea not understandingly made and must her conviction be reversed?”
Discussion of this issue is fruitless. There is no case law directly in point cited. We can find none independently. If this requirement is to be written
Third, appellant asserts that:
"Appellant’s guilty plea was not understandingly and voluntarily made where the trial judge elicited from the appellant facts of the offense charged before advising her of the constitutional rights she was waiving by entering her plea. ”
People v Snyder,
Issue 4 concerning the failure to grant jailtime credit was disposed of earlier. It was error, mandating remand for resentencing or correction at the appellate level. We stated the reason for our choice.
Assignment of error number 5 is concerned with
Assignment of error 6 challenges what is denominated the "blanket search and seizure” provision in the order of probation.
"That the person of probationer, аnd any and all premises and vehicles, owned or occupied by said probationer, shall be open to search at any and all times by the probation officer and by any law enforcement officers without a search warrant therefor.”
We strike it down. Probation is a matter of grace and rejectable, we think, at the option of the probationer. But it is not a Bill of Attainder
Probation or parоle is certainly no more stigmatic than incarceration. Thus if there be any
"It could not be seriously urged that the search and seizure made by the officers without defendant’s consent or without a search warrant could not, nor likely would not, evеn have been attempted, had defendant been at liberty and his automobile been parked on his own premises. Defendant was not stripped of his civil rights and his constitutional safeguards merely because he was serving a sentence in the county jail for an unrelated misdemeanor. It would be a dangerous rule of law and an invitation to circumvent the constitutional guaranty against unreasonable search and seizure were the citizen convicted of a misdemeanor and in jail, possibly in default of payment of a fine, to be stripped of all his civil liberties.” People v Carr,370 Mich 251 , 255;121 NW2d 449 (1963).
If this means standard forms must be revised or a portion thereof x’d out, so be it. Better that, than police state powers over all probationers. We readily concede that there is much authority to the contrary. Our research has uncovered many cаses from other jurisdictions which sustained the same imposition of consent to warrantless searches and seizures as were here imposed.
Assignment of error 7 would strike down the joint as well as individual liability of appellant for the whole of the restitution ordered by the trial court. Such is not the settled law.
We rely on our own statute and a well-reasoned California opinion squarely in point. That statute reads in pertinent part:
"The court may impose such other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper * * * ”. MCLA 771.3; MSA 28.1133.
In People v Flores, 197 Cal App 2d 611, 616-617; 17 Cal Rptr 382, 385 (1961), the. Court stated:
"Lastly, complaint is made as to the conditions of probation. The trial judge recited in the probation order that defendant and Elizabeth Barron were jointly and individually responsible for restitution to the county in the sum of $1,685 and that defendant’s share thereof was established at $842.50. But, in case Elizabeth defaulted in the payment of any portion required of her to repay under the probation order (which orders appear to be reciprocal), defendant shall become liable for such portion, payable $25 per month through the probatiоn*268 officer, and that defendant assume full financial support for his minor child.
"Defendant argues that he should be liable for only his one-half of the total, at the most, and not be held liable for his codefendant’s one-half or for her omissions. The court concluded that the total loss by theft by both defendants, acting in concert, amounted to $1,685. The jury did not find the exact amount taken, but found it to be in excess of $200. It appears to us that the full amount ordered repaid has evidentiary support. Prosser on Torts (2d ed 1955) § 45, p. 225, holds:
" 'Where two or more persons act in concert, it is well settled both in criminal and in civil cases that each will be liable for the entire result.’
"See also Gray v Sutherland, 124 Cal App 2d 280, 290;268 P2d 754 [1954]; Reid v Robinson, 64 Cal App 46, 58;220 P 676 [1923]. Restitution or reparation as a condition of probation is expressly authorized by statute (Pen Code, § 1203.1) and is sanctioned by case authority (People v Marin, 147 Cal App 2d 625, 626;305 P2d 659 [1957]).
"If the facts and circumstancеs indicate any error in the amount of restitution ordered or an injustice appears, the trial judge, upon proper application for modification of the terms of probation, is authorized to modify his original order. (People v Marin, supra.)”
The next assignment of error raised by defendant pertains to a condition of probation that she "remain in her home continuously from 9:00 p.m. each evening until 5:00 a.m. the following morning”. The defendant has launched a full-scale attack on this curfew provision contending among other things that it is violative of her constitutional guarantee of equal protection and due process. A 9 jp.m. to 5 a.m. curfew is pretty strong medicine for a young woman 25 years of age with no previous record. It is doubtful in our view that such an iron-clad 7-day curfew for 5 years would
We have examined with care the other assignments of error (9 through 11). We see no reason to discuss them at any length. Number 9 seems to us to be an argument however enlightened and progressive that is essentially a matter of policy.
Issue 11 has been disposed of by the Supreme Court in its recent opinion in People v Milton,
Now as to assignment of error number 10 defendant asserts that she was denied her constitutional right to due process and effective assistance of counsel because of the inclusion in the presentence report of inaccurate information pertaining to prior criminal involvement which trial counsel erroneously did not refute.
The judgment is affirmed in part, reversed in part and remanded to the trial judge for further consideration and possible action. That part of the order relating to warrantless searches is specifically vacated and held for naught.
Notes
MCLA 769.11b; MSA 28.1083(2), mandates that defendant be given credit for the time she served in jail prior to sentencing.
The plea-transсript discloses that the trial judge carefully explained to defendant, prior to accepting the proffered plea of guilty, that she could be sentenced to serve as much as 5 years in prison or that a fine in a specified amount could be imposed. In particular we note that he specifically informed defendant that: "It could be probation, it could be the entire 5 years in state’s prison or something in between.”
We have examined cases such as People v George,
Note also that this Court in People v Martinez,
"The trial court under the applicable statute was empowered to terminate the probation based upon violation of the probation orders for any type of antisocial conduct when the court is satisfied that revocation would be in the public interest.”
In 18 USCA 3651 of the Federal probation statutes it is provided that the court having jurisdiction may "suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best”. Thus it has been held that initial granting of probation and the terms
The applicable constitutional provisions relative to searches and seizures are found in the US Const, Am IV, and Const 1963, art 1, §11-
US Const, art I, § 10, proscribes any state passing a Bill of Attainder. See also Const 1963, art 1, § 10.
For case authority generally upholding similar sеarch and seizure provisions as imposed on parolees or probationers, see inter alia: State v Mitchell, 22 NC App 663;
In connection with the contention that defendant’s sentence is oppressive and an abuse of discretion we note the following conditions of probation which have been imposed and sustained by other courts: That the defendant not associate with a particular person, Willis v United States,
Pertinent to this issue also is the comment by the Court in Berra v United States, supra fn 4, 221 F2d at 598, where it was observed:
"It seems rather anomalous to us that a person should complain of such an order of probation when it was within the lawful authority of the trial court to have given a sentence of * * * years [of] imprisonment and * * * fine * * * ”.
Concurrence Opinion
(concurring in part, dissenting in part). I concur in Judge O’Hara’s opinion with the exception of his invalidation of the probation supervision condition discussed as defendant’s sixth issue and referred to as the "blanket search and seizure” provision. As to this part of the opinion I must dissent. There appears to be no authority in support of the conclusion reached by the majority; and, more importantly, the provision is a legitimatе and necessary instrument to assist in the regulation of a probationer’s activities.
As the majority readily concedes, there is much authority contrary to the position they have taken. Diligent research has disclosed no reported cases in agreement, and the majority has cited none in their opinion. The only decision discussed by the
Comparing one on probation or parole to one who is incarcerated to arrive at the conclusion that the rights of the former should be no less than those of the latter is to grossly misconceive the nature and purpose of the two forms of punishment. As recognized by the majority, probation is "rejectable”; that is, optional and essentially voluntary. Imprisonment is not. The probationer or parolee is given a choice. The prisoner is not. Thus, as the Supreme Court stated in People v Carr, supra, a person does not lose his civil rights while incarcerated because he has not given his consent. A probationer or parolee has given his consent in return for more lenient treatment.
The leading case in this area, mentioned in the footnote in the majority opinion, is People v Mason, 5 Cal 3d 759; 97 Cal Rptr 302;
"We have heretofore suggested, however, that persons conditionally released to society, such as parolees, may have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities 'rea*272 sonable’ which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands. (Citations omitted.) Thus, a probationer who has been granted the privilege of probation on condition that he submit at any time to a warrant-less search may have no reasonable expectation of traditional Fourth Amendment protection.” 5 Cal 3d at 764-765;488 P2d at 633 .
As mеntioned by the majority, consent to warrantless searches on the. part of probationers or parolees has been sustained in State v Mitchell, 22 NC App 663;
. Probation requires supervision and guidance to avoid the repetition of past mistakes. To be effective, the supervision cannot be restricted by the limitations on governmental scrutiny which the Constitution guarantees to law-abiding citizens. Therefore, I would not vacate that part of the probation order relating to warrantless searches.