People v. Carr, 26007

Citation185 Colo. 293,524 P.2d 301
Decision Date01 July 1974
Docket NumberNo. 26007,26007
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Debra A. CARR, Defendant-Appellant.
CourtSupreme Court of Colorado

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Kathy P. Bonham, Denver, for defendant-appellant.

GROVES, Justice.

In an earlier proceeding the defendant pleaded Nolo contendere to a charge of obtaining narcotic drugs by fraud and deceit. The defendant's sentence was suspended and she was placed on probation for five years.

In this case, after receiving testimony at a probation revocation hearing, the district court found (1) that the defendant had failed to pay supervision costs, (2) that the defendant had used narcotics, and (3) that the defendant had violated the laws of the State of Colorado, all in violation of conditions of the terms of her probation. The court then revoked the defendant's probation and sentenced her to an indeterminate term of imprisonment not to exceed two years. The defendant appeals the district court's revocation order.

I

The Attorney General asks that we dismiss the appeal, contending that probation revocation orders are reviewable only via Crim.P. 35(b) and not by direct appeal. We disagree.

C.A.R. 1 provides for the appealability of final judgments of the district court. In the past we have considered probation revocation orders appealable as final judgments, E.g., People v. Varner, Colo., 508 P.2d 390 (1973). The Attorney General argues that as of July 1, 1972, Colo. Sess.Laws 1972, ch. 44, § 39--12--101 at 253 prohibits any direct appeal of a probation revocation order. This statute provides that '(e)very person convicted of an offense under the statutes of this state shall have the right of appeal to review the proceedings resulting in conviction.' Assuming, Arguendo, that a probation revocation order is not a 'proceeding resulting in conviction,' a revocation order would not be appealable as a matter of right under section 39--12--101. However, there is nothing in the statute prohibiting a direct appeal of a probation revocation order under C.A.R. 1.

II

The defendant first challenges the constitutionality of Colo.Sess.Laws 1972, ch. 44, 39--11--206(3) at 246. Because this issue was not raised in the district court, we will not consider it on appeal. Valley v. People, 165 Colo. 555, 441 P.2d 14 (1968), cert. denied, 393 U.S. 925, 89 S.Ct. 256, 21 L.Ed.2d 260 (1968).

III

In the situation where an alleged violation of a condition of probation consists of an offense which is the subject of a pending criminal proceeding, the court has discretion to continue the probation revocation hearing until after the termination of the criminal proceeding. Colo.Sess.Laws 1972, ch. 44, 39--11--206(3) at 246. The defendant argues that the court abused its discretion in failing to continue the probation revocation hearing until after the termination of the criminal proceeding.

We agree that it would have been a better practice to continue the revocation hearing until after disposition of the criminal proceeding. See ABA, Standards Relating to Probation § 5.3 at 62--64 (1970); Small v. United States Board of Parole, 421 F.2d 1388 (10th Cir. 1970). Such a continuance would serve two purposes: (1) it would eliminate the danger of abuses occurring as a result of the informality of the revocation hearing; and (2) it would eliminate any possibility of the defendant being forced to compromise defendant's privilege against self-incrimination.

In this case, however, the defendant has not shown how the failure to continue the hearing prejudiced her. Therefore, we cannot conclude as a matter of law that there was an abuse of discretion.

IV

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), established that prior to a parole revocation hearing, the parolee has a right to be informed of the specific parole violations with which he is charged. In People v. Varner, Colo., 508 P.2d 390 (1973), we stated that the Morrissey principles apply equally to the revocation of probation. The defendant argues that she was denied due process because she was not informed of all the violations of the conditions of her probation that were considered at the hearing.

In this case the defendant was informed of three alleged violations of the conditions of her probation: (1) failure to pay supervision costs; (2) use and illegal possession of narcotics; and (3) an arrest for a new offense. She was not informed of any possible violation of the condition that she should not associate with any person having a criminal record. At the hearing the court Sua sponte elicited testimony from both of the People's witnesses concerning the defendant's association...

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28 cases
  • Dickerson v. State, 51079
    • United States
    • United States Court of Appeals (Georgia)
    • November 21, 1975
    ...... 'the danger of abuses occurring as a result of the informality of the revocation hearing.' People v. Carr, 524 P.2d 301, 303 (Colo.1974). Moreover, the possibility of having to undergo a criminal ......
  • Byrd v. People
    • United States
    • Supreme Court of Colorado
    • November 18, 2002
    ...... People v. Ray, 192 Colo. 391, 395, 560 P.2d 74, 76-77 (1977) (citing People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974) ); see also § 16-11-206(3), 6 C.R.S. (2002)("The court may .. continue the probation revocation hearing until ......
  • U.S. v. Bazzano, 81-1936
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 1983
    ......         The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual's liberty. Release of ...Evans, 77 Wis.2d 225, 252 N.W.2d 664 (1977). See also People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974). The Ninth Circuit in Ryan, supra, while declining to hold ......
  • Dail v. State, 11858
    • United States
    • Supreme Court of Nevada
    • May 15, 1980
    ...... People v. Coleman, 13 Cal.3d 867, 120 Cal.Rptr. 384, 390-94, 533 P.2d 1024, 1030-34 (Cal.1975). See Ryan ... See People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974); Borges v. State, 249 So.2d 513 (Fla.App.1971); State v. Ryan, ......
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