265 N.W.2d 128 | Mich. Ct. App. | 1978
PEOPLE
v.
RADNEY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and E. Gail Willhardt, Assistant Prosecuting Attorney, for the people.
John C. Mouradian, for defendant on appeal.
Before: BRONSON, P.J., and ALLEN and T.M. BURNS, JJ.
PER CURIAM.
Defendant was placed on probation after having pled guilty to attempted breaking and *305 entering with intent to commit larceny, MCLA 750.110; MSA 28.305, and attempted obtaining money under false pretenses, MCLA 750.218; MSA 28.415. No appeal was taken from those convictions. Subsequently, defendant's probation was revoked in both cases and defendant was sentenced to serve concurrent two to five year terms.
Most of the issues on appeal, as framed by defendant, have no application to the facts of this case. There were no "contested issues" below. See, People v Rial, 399 Mich. 431; 249 NW2d 114 (1976). However, defendant does state in his brief:
"The only information the Defendant had was that of a notice of violation and that he had a right to an attorney; he was also asked if he had any answer to the charge to which he replied `No'.
"The violation of probation hearing in this case amounts to merely giving a notice of violation to the Defendant and then revoking probation without any of the procedural safeguards necessary for due process."
We believe this adequately raises the questions of whether defendant was given timely notice of the charges he was to face at the hearing and whether he was adequately informed of his right to contest, rather than admit, the charges.
The record shows that defendant was served with notice of violations on June 29, 1976, and appeared before the court for arraignment on those charges on the same date. Defendant appeared without an attorney. A hearing was held "forthwith" resulting in immediate revocation of probation and sentencing.
The substance of the hearing is shown by this exchange:
"THE COURT: Among other things, evidently you *306 were ordered to go to Harbor Light, and you entered there and you left without permission.
"You have had another conviction, I understand, since you were placed on probation. You were convicted before Judge Brezner; is that right?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Each of those things would be a violation of your probation.
"Since you were convicted of a felony, Mr. Radney, you're entitled to have a lawyer represent you at the violation hearing, and if you are unable to pay for a lawyer, we will appoint a lawyer at public expense. Do you understand that?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Did you want a lawyer?
"THE DEFENDANT: No, I don't.
"THE COURT: Very well. Have you got any answer you want to make to these charges?
"THE DEFENDANT: No, your Honor, I don't."[1]
The only proof that there was a violation was the probation officer's statement to the court. Defendant made no comment in relation to the charged violations other than that noted above.
Our cases make it clear that the written notice of charged violations which is statutorily required, MCLA 771.4; MSA 28.1134, must be served sufficiently in advance of scheduled court proceedings so that defendant has a reasonable opportunity to prepare. People v Gulley, 66 Mich. App. 112; 238 NW2d 421 (1975), lv den, 396 Mich. 850 (1976), People v Bell, 67 Mich. App. 351; 241 NW2d 203 (1976), lv den, 397 Mich. 807 (1976), People v Gillman, 71 Mich. App. 374; 248 NW2d 553 (1976).
*307 In this case defendant received a written notice of violation on June 29, 1976, and the hearing was held forthwith. This was not timely service of the notice. However, because it could be considered that defendant waived timely service, we would not reverse on this ground alone. But see, People v Bell, supra, at 355 (opinion of DANHOF, P.J.).
A more fundamental error appears in this record. Before a defendant may validly waive a hearing on the charges and admit a violation of his probation it is necessary that he be informed of his right to a hearing and that there is an alternative to admitting the violations. People v Rial, supra, at 440 (LEVIN, J., concurring), People v Hardin, 70 Mich. App. 204; 245 NW2d 566 (1976), People v Allen, 71 Mich. App. 465; 248 NW2d 588 (1976), People v Michael Brown, 72 Mich. App. 7; 248 NW2d 695 (1976). That requirement has not been met on this record. Neither the form language on the notice of violations nor the court's mention of the word "hearing" in its colloquy with the defendant sufficiently apprises defendant of his right to contest the charges. People v Darrell, 72 Mich. App. 710, 714; 250 NW2d 751 (1976) (BRONSON, J., dissenting), People v Gaudett, 77 Mich. App. 496; 258 NW2d 535 (1977).
Defendant is entitled to another revocation hearing at which he is adequately informed of his right to contest the charges if he wishes to do so. We also note that this record does not show that defendant had, in fact, admitted the charged violations. Defendant stated only that he had no answer to the charges. This is not a sufficient indication that defendant wishes to waive his revocation hearing. People v Allen, supra, People v Coleman, 74 Mich. App. 498; 255 NW2d 203 (1977).
Reversed and remanded.
NOTES
[1] The prosecutor admits on appeal that the "conviction" referred to by the court at the revocation proceeding was, in fact, not a conviction but rather, a pending charge which has subsequently been dismissed.
