PEOPLE v TEBEDO
Docket No. 48534
107 MICH APP 316
June 17, 1981
Submitted February 5, 1981, at Lansing.
- The only thing established at defendant‘s probation revocation hearing was that defendant had been convicted of armed robbery committed while he was on probation. No testimony was taken to establish the facts underlying the armed robbery charge nor did defendant admit to participating in an armed robbery. Without an independent finding of defendant‘s involvement in the armed robbery, the probation revocation has no basis on which to stand. Reversal of defendant‘s conviction on
the armed robbery charge also requires reversal of the probation revocation based on that conviction. - Defendant‘s motion to disqualify the judge from hеaring the motion to set aside the probation revocation should have been granted and, if such proceedings are again instituted and disqualification is sought, it should be granted.
The revocation of defendant‘s probation is reversed and the sentence imposed thereon is vacated.
BEASLEY, J., concurred in the result but wrote separately to clarify that he normally would not support disqualification of a judge just because the defendant has previously directed a racial slur at him, which the judge denies having heard. In this case, however, he concurs in the decision to disqualify only because the judge involved chose to disqualify himself from hearing the retrial of the armed robbery charge.
OPINION OF THE COURT
- CRIMINAL LAW — PROBATION REVOCATION — STANDARD OF PROOF.
The standard of proof in a probation revocation hearing is less than in a regular criminal trial; where revocation is sought on the basis of a subsequеnt violation of the criminal law, there must be proof sufficient to allow the court to find by the preponderance of the evidence that the defendant committed the new offense.
- CRIMINAL LAW — PROBATION REVOCATION.
Probation should not be revoked on the basis of a new offense unless each elemеnt of the offense is proven by a preponderance of the evidence.
- CRIMINAL LAW — PROBATION REVOCATION — SEQUENCE OF PROCEEDINGS — BURDEN OF PROOF — PREPONDERANCE OF EVIDENCE — REASONABLE DOUBT.
A probation revocation hearing which is held prior to trial on a criminal offense which is the basis for the revocation is not rendered invalid by being held before the trial on the new charges, even if the defendant is subsequently acquitted of the charges, because the burden of proof at the revocation hearing is only that of a preponderance of the evidence, not proof beyond a reasonable doubt.
- CRIMINAL LAW — PROBATION REVOCATION — REVERSAL OF UNDERLYING OFFENSE.
The subsequent reversal of a conviction of a criminal offense would not require vacation of a probation revocation which was
based on that offense if the testimony or the defendant‘s admissions at the revocation hearing were sufficient to establish by a preponderance of the evidenсe that the defendant committed the offense. - CRIMINAL LAW — PROBATION REVOCATION.
The subsequent reversal of a criminal conviction on which a probation revocation is based does not require reversal of the probation revocation if (1) at the revocation hearing defendant admitted facts sufficient to establish by a preponderance of the evidence that he committed the offense or (2) if testimony is presented at the revocation hearing which meets this same standard; however, if the only thing established at the hearing is that defendant was convicted of the offense, then reversal of that conviction requires reversal of the probation revocation as well.
- JUDGES — DISQUALIFICATION OF JUDGES — COURT RULES.
A judge who is disqualified from presiding at a hearing involving a defendant on the basis of bias or prejudice should be disqualified from presiding at any future proceedings involving that defendаnt as long as the bias or prejudice remains, regardless of whether the proceedings involve questions of fact or only issues of law (
GCR 1963, 912.2[2] ). - JUDGES — DISQUALIFICATION OF JUDGES — COURT RULES.
A motion to disqualify a trial judge should not be granted solely because the defendant directed a racial obscenity at the judge, which the judge subsequently denied having heard; however, where that judge disqualifies himself from one hearing on the basis of possible bias or prejudice against the defendant, he should also be disqualified from any further hearings against that defendant (
GCR 1963, 912.2[2] ).
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor Generаl, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Terrance P. Sheehan, for defendant on appeal.
Before: DANHOF, C.J., and R. M. MAHER and BEASLEY, JJ.
Meanwhile, defendant appealed his armed robbery conviction and this Court reversed, holding that certain statements made by the defendant should have been suppressed as the fruits of an illegal arrest. People v. Tebedo, 81 Mich App 535; 265 NW2d 406 (1978). The case was remanded for a new trial which has been adjourned on several occasions pending the outcome of the instant appeal. As a result of the reversal of his armed robbery conviction defendant moved to set aside his guilty plea to the probation violation charge.
On appeal, defendant argues that the trial court erred in refusing to set aside the finding that he had violated his probation where the conviction on which that finding was based was subsequently reversed. This question has not been extensively discussed in this state. People v. Biondo, 76 Mich App 155; 256 NW2d 60 (1977), lv den 402 Mich 835 (1977), appears factually similar. In Biondo, defendant was convicted of breaking and entering a business establishment while on probation from a prior conviction. As a result of the breaking and entering conviction, his probation was revoked. Defendant‘s aрpeal to this Court involved both the breaking and entering conviction and the probation revocation. Discussing the breaking and entering conviction first, the Court reversed on the basis of improper prosecutorial argument. The Court then added, without additional discussion: “The reversal of the breaking and entering conviction of necessity means that the resulting probation violation conviction is set aside“. Id., 160.
Biondo appears to stand for the proposition that when a defendant is found in violation of his probation on the basis of a conviction for a substantivе criminal offense and that conviction is subsequently reversed, the defendant is entitled to have the probation revocation reversed as well. Analysis of other probation revocation cases reveals, however, that this is not always the case. The standard of proof in a probation revocation hearing is less than in a regular criminal trial. When revocation is sought on the basis of a subsequent violation of the criminal law, there must be proof sufficient to allow the court to find by the preponderance of the evidence that defеndant com-
In the instant case, no testimony was taken to establish the facts underlying the armed robbery charge. Nor did defendant admit to participating in an armed robbery. The only thing defendant admitted was that he had been convicted by a jury of armed robbery. Based on this admission, the trial court revoked defendant‘s probation “because he was convicted of Armed Robbery on March the 18th, 1976, in Genesee County, Michigan“. Certainly, probation may be revoked on the basis of the fact that a defendant has been convicted of a subsequent criminal offense. Evidence of the con-
To summarize, the subsequent reversal of a criminal conviction on which a probation revocation is based does not require reversal of the probation revocation if (1) at the revocation hearing defendant admitted facts sufficient to establish by a preponderance of the evidence that he committed the offense, or (2) if testimony is presented at the revocation hearing which meets this same standard. If the only thing established at the hearing is that defendant was convicted of the offense, then reversal of that conviction requires reversal of the probation revocation as well.
Because the prosecution may seek to reinstitute probation revocation proceedings against the defendant on the basis of conduct occurring during the probationary period, we will briefly address one further issue raised by the parties. After this Court‘s reversal of defendant‘s armed robbery con-
The revocation of defendant‘s probation is reversed and the sentence imposed thereon is vaсated.
Reversed.
BEASLEY, J. (concurring). I concur in the result reached by the majority but write regarding defendant‘s motion to disqualify the trial judge.
In 1974, this defendant attempted to escape from custody in the courtroom immediately following sentence1 by Judge Ollie B. Bivins of the Genesee County Circuit Court. At a subsequent hearing, defendаnt and two other witnesses testified that during this escape attempt defendant
I write to indicate that I would not permit a litigant to accomplish disqualification of a trial judge under this type of circumstаnce. However, in this case, the trial judge subsequently, at a 1978 disqualification hearing, chose to grant a motion to disqualify himself from hearing a nonjury retrial2 of this defendant.
Only because the trial judge involved chose to disqualify himself from hearing the retrial do I concur in this decision to disqualify him from a further probation revocation hearing, if there is one.