239 N.W.2d 431 | Mich. Ct. App. | 1976
PEOPLE
v.
SMITH
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. *640 Derengoski, Solicitor General, Harvey A. Koselka, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Lee W. Atkinson, Special Assistant Attorney General), for the people.
Dennis H. Benson, Assistant State Appellate Defender, for defendant.
Before: ALLEN, P.J., and BRONSON and R.M. MAHER, JJ.
PER CURIAM.
On September 24, 1970, defendant was sentenced to a term of 90 days in jail and 5 years probation, following his conviction for larceny from the person. MCLA 750.357; MSA 28.589. On December 21, 1973, defendant's probation was revoked and he was sentenced to a term of from 2 to 10 years in prison.
The United States Supreme Court decided in Morrissey v Brewer, 408 U.S. 471; 92 S. Ct. 2593; 33 L. Ed. 2d 484 (1972), as applied to probation revocation proceedings in Gagnon v Scarpelli, 411 U.S. 778; 93 S. Ct. 1756; 36 L. Ed. 2d 656 (1973), the minimum due process requirements for a probation revocation hearing:
"They include (a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body * * *; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation]." Morrissey v Brewer, supra, 408 US at 489. (Emphasis supplied.)
*641 Defendant, in the present case, was not afforded an opportunity to confront and cross-examine adverse witnesses at his revocation hearing. He was merely questioned by the trial judge who had no personal knowledge of any facts showing violation of probation. Since we are unable to find either an express waiver of defendant's right to confront and cross-examine adverse witnesses on this record or good cause stated by the trial court for not allowing confrontation, the order revoking probation is set aside, the sentence vacated and defendant remanded to the custody of the trial court without prejudice on the part of the court to conduct a proper hearing. Furthermore, we suggest that, in the event defendant's probation is again revoked, his presentence report be updated, in order to insure accurate information at sentencing. See People v Malkowski, 385 Mich. 244, 249; 188 NW2d 559 (1971).