State v. MalbroughState v. Malbrough
- Reporters:
- , ,
- Before:
- Parks
Defendant Randall Malbrough was granted probation following a jury conviction for burglary. One condition of his probation was that he abide by the laws of the State of Kansas. Defendant was subsequently charged with aggravated battery on October 24, 1979. The following day, the county attorney filed a motion for the revocation of Malbrough’s probation. No arrest warrant was sought nor was the defendant detained; however, he was notified of the motion for revocation at his first appearance on the battery complaint.
At the revocation hearing, the State presented three witnesses whose names were endorsed on the complaint. Defendant testified at the hearing and attempted to introduce the out-of-court statement of an absent witness, Scott Noll. The court refused to admit the statement and ¡Found that the defendant had violated the conditions of his probation by committing the crime of battery. Defendant’s probation was revoked on November 5, 1979, and he was committed to custody in the Jefferson County jail pending the outcome of the aggravated battery complaint. Defendant appeals from the order revoking his probation.
The State argues that this appeal is moot because subsequent to the revocation hearing the defendant was convicted of battery in a jury trial. It is true that evidence of a criminal conviction while on probation is sufficient to support revocation
(State v. Rasler,
216 Kan. 292, Syl. ¶ 2, 532 P.2d 1077 [1975]), but the revocation must
Defendant contends that he was denied due process of law by the trial court’s failure to hold a preliminary hearing to determine the existence of probable cause. He relies upon Gagnon v. Scarpelli, 411 U.S. 778, 36 L.Ed.2d 656, 93 S.Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972), which prescribe a two-stage procedure for parole and probation revocation: a preliminary hearing to determine whether there is probable cause to believe the terms of release were violated, and a subsequent final hearing on the merits. In both of these cases the probationer was held in custody prior to the revocation hearing. We agree with the view expressed by the Seventh Circuit that the reason for requiring a preliminary hearing was that the conditional liberty of a probationer or parolee, like the more complete liberty of others, cannot constitutionally be infringed without probable cause. United States v. Sciuto, 531 F.2d 842, 846 (7th Cir. 1976). When the probationer is not held in custody to await the revocation hearing, the requirement of a preliminary hearing is eliminated. Curtis v. State,_ Ind. App__, 370 N.E.2d 385 (1977).
In the present case, the trial court was not required to hold a preliminary hearing because Malbrough was not held in custody or detained to await the hearing on the merits. Additionally, there is nothing in the record to suggest that the failure to hold a preliminary hearing deprived defendant of notice or any other components of due process. On the contrary, defendant was present and represented by counsel, evidence was introduced on his behalf, and he was afforded the opportunity to meet the accusations against him. Therefore, we conclude that defendant was not denied due process by the court’s failure to hold a preliminary hearing.
Defendant next complains that the scheduling of his revocation hearing infringed on his right to prepare a defense because it was held before his statutory right to see statements and reports held by the prosecutor was effective.
Defendant also contends that he was denied procedural due process because the county attorney’s office is without authority to initiate revocation proceedings. Defendant asserts that
Finally, defendant argues that the court’s exclusion of the statement of defense witness Scott Noll was reversible error. Defendant claims that the statement is exculpatory; however, its recounting differed from that of the State’s witnesses only in minor respects. Even if it was error to exclude the statement, it does not necessarily require a reversal unless it appears to have been so prejudicial as to deprive defendant of a fair hearing. Where, as here, the evidence is overwhelming that a violation of defendant’s probation had occurred and it can be said that the statement could not have affected the result of the hearing, such exclusion is harmless error.
State v. Hamilton,
222 Kan. 341, Syl. ¶ 5, 564 P.2d 536 (1977);
Affirmed.