Belcher, Matter of
| Decision Date | 15 August 1985 |
| Docket Number | Docket No. 74758 |
| Citation | 143 Mich.App. 68,371 N.W.2d 474 |
| Parties | In the Matter of Daryl BELCHER. PEOPLE of the State of Michigan, Petitioner-Appellee, v. Daryl BELCHER, Respondent-Appellant. 143 Mich.App. 68, 371 N.W.2d 474 |
| Court | Court of Appeal of Michigan — District of US |
[143 MICHAPP 69] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Solicitor Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief, Appellate Asst. Pros. Atty., and Thomas M. Chambers, Asst. Pros. Atty., for appellee.
Juvenile Defender Office by William E. Ladd, Detroit, for respondent-appellant.
Before CYNAR, P.J., and KELLY and EVANS *, JJ.
In a proceeding in the juvenile division of probate court on January 31, 1983, respondent pled guilty to breaking and entering a place of business with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Pursuant to M.C.L. Sec. 712A.18(1)(b); M.S.A. Sec. 27.3178(598.18)(1)(b), the probate court placed respondent on probation in the home of respondent's mother. A condition of the [143 MICHAPP 70] probation imposed was that respondent not violate any criminal law. On June 23, 1983, a petition for rehearing of the probate court's order of disposition was filed. The petition charged that respondent had violated the conditions of probation by, among other things, committing a breaking and entering of an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and an assault with intent to commit an unarmed robbery, M.C.L. Sec. 750.88; M.S.A. Sec. 28.283. A referee found that respondent had violated the terms of his probation by committing those crimes, and the probate court affirmed those findings on review. Both the referee and the probate court indicated that they were applying a "preponderance of the evidence" standard. The probate court revoked respondent's probation and entered an order of disposition pursuant to M.C.L. Sec. 712A.18(1)(e); M.S.A. Sec. 27.3178(598.18)(1)(e), committing respondent to the Department of Social Services for placement. Respondent appeals as of right.
Respondent argues that the Juvenile Court Rules prohibit revocation of probation unless a violation of the conditions of probation is proved beyond a reasonable doubt. JCR 8.3 (now MCR 5.908[C] ), required proof beyond a reasonable doubt in the adjudicative phase of a case involving an offense by a child, but imposed no such requirement in the dispositional phase. In the Matter of Sharman Scruggs, 134 Mich.App. 617, 621-622, 350 N.W.2d 916 (1984), explained that a probation violation hearing is dispositional rather than adjudicative, because the original decision to place the child on probation rather than to impose some other sanction was dispositional rather than adjudicative. The Court noted that a finding that the child violated the conditions of probation carried different consequences than a finding of guilt on a [143 MICHAPP 71] substantive charge. Scruggs shows that respondent's arguments concerning the Juvenile Court Rules are without merit.
Respondent also argues that due process prohibits revocation of juvenile probation unless a violation of the conditions of probation is proven beyond a reasonable doubt. Although proceedings in juvenile court need not conform with all the requirements of a criminal trial, essential requirements of due process and fair treatment must be met. In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 1445-1446, 18 L.Ed.2d 527 (1967). Proof beyond a reasonable doubt is an essential requirement of due process and fair treatment in the adjudicative phase of a proceeding in which a juvenile is charged with an act which would be a crime if committed by an adult and faces possible confinement in a state institution. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), however, the court explained that, although an adult probationer is entitled to a hearing at which certain minimum requirements of due process are observed before probation is revoked, a probationer is not entitled to all of the protections of a criminal trial, because the probationer has already been convicted of a crime. It is well settled in Michigan that the standard of proof in adult probation revocation proceedings is proof by a preponderance of the evidence. See People v. Billy Williams, 66 Mich.App. 67, 71, 238 N.W.2d 407 (1975); People v. Miller, 77 Mich.App. 381, 387, 258 N.W.2d 235 (1977); People v. Rocha (After Remand), 99 Mich.App. 654, 656-657, 299 N.W.2d 16 (1980); People v. Buckner, 103 Mich.App. 301, 303, 302 N.W.2d 848 (1980); People v. Tebedo, 107 Mich.App. 316, 320-321, 309 N.W.2d 250 (1981); and People v. McEntyre, 127 [143 MICHAPP 72] Mich.App. 731, 733, 339 N.W.2d 538 (1983). The status of a juvenile probationer is analogous to that of an adult probationer, and we see no reason to impose a higher burden of proof in juvenile probation revocation proceedings than in adult probation revocation proceedings.
Cases from other jurisdictions reaching similar conclusions include In re Maricopa County Juvenile Action # J-72918-S, 111 Ariz. 135, 524 P.2d 1310 (1974); In re Sneed, 72 Ill.2d 326, 21 Ill.Dec. 194, 381 N.E.2d 272 (1978); In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972); In the Matter of TLW, 578 P.2d 360 (Okla Crim, 1978); State ex rel. Gillard v. Cook, 528 S.W.2d 545 (Tenn, 1975), and In re Welfare of Ames, 16 Wash.App. 239, 554 P.2d 1084 (1976). Many of the cases from other jurisdictions in which proof beyond a reasonable doubt has been required are distinguishable, because they involve state statutes significantly different from those of Michigan. In People in Interest of CB, 196 Colo. 362, 585 P.2d 281 (1978), the court agreed that juvenile probation revocation proceedings were analogous to adult probation revocation proceedings but required the higher standard of proof because Colorado statutes require proof beyond a reasonable doubt for revocation of adult probation. In TSI v. State, 139 Ga.App. 775, 229 S.E.2d 553 (1976), the court...
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