*1 v Ritter PEOPLE v RITTER 1990, 5, Lansing. at Decided June No. 116685. Submitted Docket 8, 1991, January 9:30 a.m. at pled guilty Court of unlaw- the Midland Circuit J. Ritter Joel court, driving away David Scott fully an automobile. The years’ DeWitt, J., days jail, to three him sentenced 31, 1985, July pled probation, the defendant costs. On and violating on guilty an order of and J., court, Clulo, 28, 1985, August Paul J. ordered days jail and extended an defendant to serve additional 30, 1987, 13, January until 1987. On for the defendant’s arrest were and bench Clulo, by Judge alleging of the terms of the violation issued probation by failing officer in Novem- to a failing previ- pay the costs ber and December 1987, and, July ously state in ordered. The defendant left the 1987, 13, grand larceny in was convicted of he November Carolina, serving jail sentence in South After South Carolina. in 1988. On some time defendant returned 1988, 26, petition and bench warrant were October an amended 30, 1987, containing two as the the same counts well as two additional counts as 13, 1987, on November the defendant was outside state felony of a in another state on same that he was convicted arraigned The on those four counts on date. defendant was and, hearing following a on December Clulo, court, J., guilty of found the defendant Paul violation, revoked the defendant’s all the counts of January 6, thirty him to and sentenced underlying sixty imprisonment The offense. months’ jurisdic- appealed, contending that the court lacked impose probation and sentence. tion to revoke his Appeals Court of held:_ References 2d, Criminal Law Am Jur §§ term, after, expiration revoke or Power of court modify probation violations committed term. 13 ALR4th 1240. properly The trial revoked the defendant’s pending because revocation were when the normal of his would have and because the *2 probation period probation- was tolled when he absconded from ary supervision. charged petition All conduct the in during probation period proper occurred the and was a basis for revocation. sentencing jurisdiction 1. A court retains to revoke a defen- probation probation dant’s proceedings if revocation are com- probation period menced pending within the and are it when expires. Here, original petition against the bench warrant alleging probation the defendant violation of the terms of his were issued more than seven months before the defendant’s probation expired. sentencing 2. A court is authorized statute to revoke a probation where the decision to is revoke based during period. probationary violations which occur the The jurisdiction probation trial had court to revoke the defendant’s in 1988. October requirement 3. is There that a defendant of receive notice proceedings probation period expires revocation before a jurisdiction. only requirement order for a court to retain The is diligence the warrant be executed with reasonable issuance. proceedings pending 4. Since revocation were when the de- probation period expired, petition properly fendant’s could allege be amended to of other violations order petition which occurred after the was filed. period upon absconding 5. A defendant’s of is tolled supervision. probation pe- from The defendant’s January riod was tolled from the issuance of the 30, 1987, until he was arrested October 1988. The violations petition in the amended occurred time period which his was tolled and were probation. reasons for revocation of his The amended timely it because was filed the term of the defen- dant’s Affirmed. Kelly, J., dissenting, Michael stated the amendment process due was violative of and, consequence, lack notice as a the court had no
jurisdiction probationary period over the defendant after the ended on 1987. and warrant 26,1988, too were late. op Opinion the Court — — — Due Revocation Probation Probation 1. Criminal Law Process. proceedings requires only revocation process Due manner; probationer fundamentally is fair in a be conducted rights range process associated of due to the full not entitled a criminal trial. — — Probation Revocation. Law Probation 2. Criminal sentencing a defendant’s to revoke court retains A are commenced probation if expires. pending are when within the — — Probation Revocation. Law Probation 3. Criminal probation and a warrant for to revoke The issuance of where, during justified probationer’s arrest probable sentencing finds that cause exists (MCR probationer has violated to believe that 6.445[A]). — — Law Probation Probation Revocation. Criminal probationer absconds A is tolled when *3 therefore, proba- supervision; of from violations time in which the of tion which occur proba- of is tolled are reasons for revocation tion; petition alleging of a violation of terms probation. timely the tolled term of where Kelley, Attorney Gay General, Frank J. Secor Hardy, General, Donker, Solicitor W. Norman Prosecuting Attorney, Bunce, K. Chief and John Prosecuting Attorney, people. Assistant for the Dagher-Margosian, Jeanice for the defendant. Kelly Sawyer, P.J., Before: and Michael Murphy, JJ. appeals right from J. Defendant as of
Murphy, probation violation, his conviction MCL 771.1 et seq.; seq. 28.1131 MSA et As a result of this conviction, the court revoked defendant’s following July 9, 1982, conviction, tion for his guilty plea, unlawfully driving away of 750.413; an automo- bile, 28.645, MSA and sentenced Opinion of the Court thirty sixty prison months, him to a days served. We affirm. credit for August 1982, 17, defendant was sentenced On days jail, years’ and costs in three charge unlawfully pleading guilty to the after July driving away an On automobile. pled guilty of a violation an August 1985, and, 28, his
order probation two for an additional was extended years, 13, 1987. Defendant also until days jail. in an additional served January 30, 1987, war- and bench On by issued arrest were rant sentencing for defendant’s alleged that defen- court. The probation by the terms of his dant had violated failing in his officer Novem- failing pay the December 1986 and ber and previ- attorney fees, costs, and restitution ously ordered. Michigan July left the State of
Defendant probation expired on Au- term of 1987 before his gust 13, 1987. November On grand larceny in Charleston convicted of eighty County, Defendant served South Carolina. jail days and was as a result of that conviction year to one sentenced apparently some time
returned to serving jail sentence, but before probation in South Carolina was terminated. an amended
On October filed. The amended warrant were bench alleged probation violation con- the two counts of *4 original petition, as well as two in the tained counts which additional Michigan on November the State of
was outside felony in of a that he was convicted same date. Defendant state on that another arraigned sentencing four court on the the before Opinion op the Court violation on the same probation day counts filed. amended 6, 1988, the court hearing After a on December probation found defendant of all counts guilty 6, 1989, the court revoked violation. On prison him to probation sentenced for the conviction. underlying that his sentence appeal,
On contends sentencing must vacated court and, revoke his lacked impose According sentence. consequently, defendant, when his lost its sentencing
power to revoke his on the basis of the 26,1988, disagree. petition. We 771.4; MSA 28.1134 provides pertinent part: legislature grant- It is intent
ing ring grace confer- shall be a matter If right no vested to its continuance. appears to the sentenc- ing probationer court’s satisfaction that again engage in an offensive or criminal likely good requires public course of conduct or that the may revoke revocation of All orders shall be revocable any imposed in probation manner which court which applicable shall either for a consider attempted or violation of a condition of violation probation duct or action on the any type or for other of antisocial con- probationer part of the satisfy the court revocation is which shall public [Emphasis supplied.] in the interest. part of a crimi- Revocation of is not deprives only It the defendant of prosecution. nal properly dependent which is liberty conditional order, of the terms of the observance liberty every than the absolute rather *5 App 701 186 Mich 706 Opinion of the Court probationer is a The defendant citizen is entitled. of a crime. He he has been convicted because only range process the full of due entitled process Due a criminal trial. rights associated with proceedings be the revocation requires only Gag fair manner. fundamentally in a conducted Scarpelli, 778, 781, 789; 93 S Ct non v 411 US Morrissey Brewer, v (1973); 1756; 36 L 2d 656 Ed 484 2593; 33 L Ed 2d 471, 480; 92 S Ct 408 US People Gladdis, v 91, 96; 257 (1972); App Mich (1977). to revoke The decision NW2d discre sentencing court’s is a matter within People Marks, v 495, 499-501; 65 340 Mich tion. (1954). NW2d against original petition bench terms of his of the alleging violation sentencing court on issued by were months before more than seven courts expired.
defendant’s
sentencing court
held that
traditionally
have
to revoke a defendant’s
retains
are com-
if
tion
pend-
and are
probation period
within the
menced
Hodges,
People
v
231 Mich
ing
expires.
when
People Wakefield, v
(1925);
656;
If only in the absurd conse- result can vant statute *6 any quence terms the who violates that defendant long impunity probation may so do so with his manages apprehension until the to evade as he expires. probation statutory period of maximum Legislature intended the conceive We cannot 771.4; MCL not construe a result and will such require the it. We must construe 28.1134 to MSA unjust sensibly absurd or in order to avoid statute App 355; 437 Meadows, 175 Mich v results. (1989); People Adams, 34 Mich v Otis 405 NW2d App (1971).1 546, 555; 192 NW2d adopt statute Rather, a construction we context of the the overall best harmonizes sought probation to be the end statutes App People Gilbert, 764; 279 88 Mich achieved. (1979). has no A convicted defendant NW2d probation right if of his in the continuance vested 771.4; MSA its conditions. he violates supra, Marks, 500. The statutes 28.1134; punished probably for serious will be It is true that the defendant violations, regardless or the of the occurrence criminal outcome ture tion itself. The However, Legisla proceeding. the of a violating proba clearly punish for his to a defendant intended revoking probation underlying that the reason bargain by complying part the to fulfill his has failed Nevertheless, probationary has received the benefit order. he the being prison. for the fact that the If it were not any position probation, to commit not be in a he would was on violations of probation, in nature or more technical his whether contemplate that a defendant It is absurd to criminal offenses. serious violating probation merely he escape penalty may the probationary to in the it so late commits revoke such as completed. importantly, in a case More cannot be this, wilfully himself from the removed where the defendant supervision probationary and then committed other court’s contrary violations, escape penalty allowing would be without him imposing probation. purposes of the Opinion op the Court sentencing range confer court a broad upon power handling aspects all discretionary presents per- process. limiting suasive reason for the court’s discretion revocation, the area of nor do we discern Therefore, such a reason. we conclude that MCL 771.4; MSA 28.1134 must be construed to autho- sentencing rize the court to revoke a defendant’s requirement limited only by the decision to revoke be based on violations which period. occur the probationary 6.445(A), Our conclusion is reinforced MCR sentencing which authorizes to issue a appear upon summons or an arrest warrant "finding probable cause to believe that a Thus, probation.” tioner has violated a condition of may logically statutory phrase we construe appears "[i]f sentencing require court’s satisfaction” only that during find *7 probable that cause exists to believe that the in probation has violated his order justify probation issuance of a to revoke and a warrant for the defendant’s arrest. As dis- above, against cussed a was filed defen- dant on for violations of the probation order which occurred November and Therefore, December 1986. we that conclude the trial court had to revoke defendant’s 1988 probation despite the fact that his had 1987.2_ 2 Hodges, supra, Under the traditional rule set forth in both the filing violation and the must occur probation period. present require the the ments of that the defendant could commit a serious Because case meets the rule, validity, except say we need not discuss its that potential Conceivably, for absurd results exists here as well. a violation so near the end probation period of his that there would be no time to commence Thus, period expired. proceedings before the the defendant revocation People 709 v Ritter op Opinion the Court sug
Furthermore,
not,
there is
as defendant
requirement
gests,
executed,
the
a
that
warrant be
words,
of
notice
in other
that a defendant receive
proceedings,
period
the
of
the revocation
before
probation expires in order
the court to retain
required only
jurisdiction.
the
This
has
that
Court
diligence
with
executed
reasonable
be
App
People Hanson,
v
178 Mich
after issuance.
507;
(1989); People Diamond, 59
v
Therefore, could allege amended to other violations of the order which occurred after the was filed. Next, we must address whether violations in the amended oc- probation expired. curred after argues Defendant pired that because his ex- express 13, 1987, and there is no statutory tolling provision absconding proba- being tioners, the added counts of outside the state being on November and of convicted of a felony in another state on November allege pro- both conduct which occurred after his expired. disagree. bation We Michigan courts have not addressed the issue of tolling probation during a defen- dant’s unauthorized absence from the court’s su- pervision. general Nevertheless, that, we note as a statutory periods rule, limitation do not run in during periods favor of a defendant in which he is "fugitive justice.” from If done with the intent to prosecution, flight avoid detection or from the jurisdiction or concealment of oneself within the may operate in order to evade arrest to toll Law, § 203, CJS, limitation. Criminal
pp By token, 247-248. the same it has running been held that of a period ceases when deemed fugitive and a warrant cannot be executed because himself, the defendant has concealed has fled the jurisdiction, serving imposed by or is a sentence p CJS, Law, another court. 24 § 1557, Criminal *9 711 v Opinion of the Court notes, Michigan probation As stat- defendant seq., seq.; et MCL 771.1 et utes, MSA 28.1131 provision proba- express tolling contain no period pro- from tion when absconds that, However, al- we note supervision. bation seq., 3651 et though 18 the federal USC act, no tolling provision, also federal contains of period courts held that a defendant’s have from is tolled when he removes himself through wrong- supervision his own Fisher, 895 States United ful inaction. action or Martin, States v (CA United 5, 1990); 786 F2d 208 v Work- (CA United States 10, 1986); F2d 975 man, Nicholas v (CA 4, 1980); F2d States, (CA 9, United 1976); 527 F2d 1962), Gerson, (CA 6, United States v F2d 430 case, period In of ceases such a until run from the time a is issued court’s su- time the defendant is returned supra. Martin, pervision.
We hold that a defendant’s also he from probationary tion is tolled when absconds con- supervision. To conclude otherwise would be An statutes. trary purpose allowed should absconding wrongful noncompliance with the his benefit from case, In defen- order. this terms supervision dant from the absconded to his officer by failing A his ar- 1986. and warrant October 30, 1987. Defendant rest were issued on left in 1987 and July admitted that he the state in serv- 1988 after returned to sometime in ing jail sentence South Carolina. to the and returned apparently
was arrested in 1988. sometime October We supervision court’s was conclude that defendant’s Janu- the warrant tolled from the issuance of Michael J. Kelly, Dissent ary 30, 1987, until he was arrested Consequently, violations occurred the time were, which his therefore, was tolled and reasons for revocation defen- probation. analysis, Moreover, dant’s under this timely the amended the term of defendant’s See *10 supra, Fisher, 212, n 7. argues
Last, defendant that because MCL 28.1133(l)(a) 771.3(l)(a); prohibits only MSA viola- "any state,” tion of criminal law of this he could properly violating be convicted of felony on the basis of a conviction South Caro- ignored apparently lina. Defendant has (4) subsection statute, of the same which authorizes impose any to it deems other lawful conditions of
necessary proper. proba- or Defendant’s prohibited expressly "any tion order violation of any criminal law of state or of the United States.” Therefore, this claim is without merit. summary,
In we conclude that the trial court properly revoked defendant’s because pending revocation were when the normal term of defendant’s have would and because defendant’s probation- tion was tolled when he absconded from supervision. ary Therefore, all conduct the amended occurred and was a basis revocation. Affirmed.
Sawyer, P.J., concurred. (dissenting). appears J. J. It Kelly, Michael question proceed- that the boils down to whether a ing revocation can be considered "pending” where the defendant has not been People Kelly, Michael J. Dissent proceeding. notified or otherwise
served prosecutor argues are at all orders 771.2(2); MSA under times 28.1132(2) amendable require- parte with an ex basis opportu- given or notice that defendant ment regarding nity the amendment. to be heard 576, 579; 370 NW2d Kendall, 142 Mich v (1985). proceedings, says ex even pending proceedings, parte must be juris- probation, loses otherwise operative says, Here, defendant diction. amendment, 1988, 26, was filed October which second revocation for the was the basis which not issued it was not valid because had ended term of within agree I 1987. would position. about confusion
There is some based, which the October peti- in fact two there were and this is prepared petition, Janu- and dated The first tions. ary (1) specifies failure to two violations: (2) attorney pay fees, report, costs, failure *11 on the based The bench warrant restitution. and petition served, it is not clear never and first from warrant petition and bench where this the record date-stamped
languished. as It was not county having until clerk with the been petition and 26, But this not the 1988. is October upon is based. the revocation warrant which bench pre- petition warrant and bench amended pared 26, 1988, was served and issued October not have been defendant, it could of course but 26, That amended October served before specifies four viola- bench warrant and leaving being operative the State of tions, one Michigan, predicated on the November as felony It the act of is in South Carolina. conviction App Mich by Michael J. Kelly, Dissent leaving Michigan upon any the State of tolling depend. tolling analysis should To hold that triggered by report in and failure to November implicate process December of 1986 would due reporting considerations. Not would extend holding tion ad infinitum. I do not see how such a challenge could survive a on the Fourteenth based Amendment to the United States Constitution and 1, § 17 art Constitution. dispute
There is no that defendant never arraigned served with or on the bench warrant majority 30, dated 1987. The decides that probation by failing defendant absconded probationary and that therefore his sentence was simply by typing fact, tolled not and signing of the unserved bench warrant dated Janu- ary 30, 1987. The creation of that warrant does figure in either or lower court’s this process. it, Court’s deliberation We note but no- depend where it. The critical document is the for revocation of document) (one bench warrant issued and served arraignment 1988, 26, October and the on the same date. Jackson,
I would
follow
(1988),
280;
I would reverse.