99 Mich. App. 521 | Mich. Ct. App. | 1980
Lead Opinion
In 1975, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He was sentenced to three years probation, assessed payment of $540 in court costs and ordered to obey certain conditions. In 1977, he was accused of violating his probation. The Wayne County Circuit Court subsequently revoked his probation and sentenced him to 5 to 15 years imprisonment. Defendant now appeals as of right, claiming that the court reversibly erred by accepting his plea of guilty to violation of probation without advising him of his right to a contested hearing and without obtaining an admission that he had violated his probation.
A trial judge need not specifically inform a defendant of his right to a contested probation hearing if the defendant is informed of this right through other means, Le., through a bench warrant. See People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979), People v Darrell, 72 Mich App 710; 250 NW2d 751 (1976). When a defendant is informed of this alternative to pleading guilty, is fully represented by counsel and admits his probation violation, we are satisfied that his procedural due process rights have been adequately protected. See Hooks, supra, Darrell, supra.
In the instant case, defendant was informed of his right to a contested probation violation hearing
After carefully considering the record below, we conclude that defendant’s due process contention must fail.
Affirmed.
Dissenting Opinion
(dissenting). I would reverse and remand.
Defendant appeals as of right an order revoking his probation and sentencing him to 5 to 15 years imprisonment. His sole argument on appeal is that the trial court erred in accepting his guilty plea without advising him of his due process right to a contested hearing and without obtaining an admission from him that he had in fact violated probation.
While a defendant, accused of violating his probation, is not entitled to the full panoply of rights under the "guilty plea” rule, GCR 1963, 785.7, he does have the right to a contested hearing before pleading guilty. People v Hardin, 70 Mich App 204, 206-207; 245 NW2d 566 (1976), construing Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973).
Certain panels of this Court have disagreed regarding what must appear on the record to satisfy this requirement. It is now clear that the
In the instant case, defendant was served with an order to show cause why the probation order should not be revoked and terminated. However, that document did not inform defendant of his right to a contested hearing. Nor is it clear that defendant was served with a copy of the bench warrant which noted his right to a "violation hearing”.
Further, although defendant was represented by counsel at the probation revocation hearing on March 1, 1978, and the sentencing hearing on March 10, 1978, on neither occasion did the judge inform defendant of his right to a contested hearing before pleading guilty.
Nor did defendant admit the substance of the probation violations at either time. According to the bench warrant, there were three violations:
"1. Contrary to the provision #1 of the Order of Probation which states that 'the probationer shall not, during the term of his probation, violate any criminal*526 law or ordinance of any state or of the United States or any of their subdivisions,’ he has violated this in that on January 5, 1977, he was found guilty of Larceny under $100 under St. Clair Shores Municipal Court Docket No. 354144.
"2. Contrary to provision #3 which states that, 'he shall report to the probation officer as often and in such manner as the latter may require,’ he was failed * * * to report in June, July, and August of 1977.
"3. Contrary to provision #5 which states that, 'he shall pay Court costs in the amount of $540.00 at the rate of $15.00 per month,’ he has failed to pay $15.00 per month, he has paid nothing to date.”
At the probation revocation hearing defendant’s counsel stated that defendant did not actually contest these violations but that the reason he had not reported to his probation officer for three months was he was in the army at that time. Additionally, at the sentencing hearing, the following colloquy occurred between the trial judge and defendant:
"DEFENDANT PRATTO: Well, your honor, that larceny thing was something about gas siphoning. Somebody siphoned gas from the neighbor’s car and I was working next door at the time it happened and there was nobody else around so the police got me, that larceny under $100.00.
"THE COURT: But you were convicted, were you not?
"DEFENDANT PRATTO: I just said, they told me they would take the $25.00 that I put up for bond and that was that, and I said, 'okay, I will give you $25.00’.
"THE COURT: But you pled guilty?
"DEFENDANT PRATTO: Yes, your Honor.”
Since the facts recited above give no indication that defendant was aware of his right to a contested hearing or that he admitted all the charges, I would vacate the sentence and remand to the trial court for a new hearing.
