Calhoun v. Macomb County Circuit Judge

• Decision Date: 31 December 1968
• Docket Number: No. 2,Docket No. 4400,2
• Citation: 166 N.W.2d 657,15 Mich.App. 416
• Parties: Memory A. CALHOUN, Plaintiff, v. MACOMB COUNTY CIRCUIT JUDGE, Defendant
• Court: Court of Appeal of Michigan — District of US

Page 657

166 N.W.2d 657

15 Mich.App. 416

Memory A. CALHOUN, Plaintiff, v. MACOMB COUNTY CIRCUIT JUDGE, Defendant.

Docket No. 4400 Court of Appeals of Michigan, Division No. 2.

Dec. 31, 1968

Released for Publication April 16, 1969.

Memory A. Calhoun in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Don L. Milbourn, Asst. Pros. Atty., Macomb County, Mt. Clemens, for defendant.

Before KAVANAGH, P.J., and McGREGOR and ELLIOTT, ^* JJ.

ELLIOTT, Judge.

Plaintiff seeks a writ ¹ of superintending control to compel the trial court to appoint appellate counsel and provide a free trial transcript. He was tried and convicted of forgery in 1965. After a presentence investigation ², he was placed on two years' probation ³. At that time he was advised by the court of his right to timely appeal ⁴. Eighteen months later, shortly after conviction and sentence of another felony in another court, he had a probation violation hearing, and his probation order was revoked and he was sentenced to imprisonment ⁵

The trial court denied his motion for counsel and transcript, filed within 60 days of his sentence of imprisonment, because the time for appeal as of right and the right, if indigent, of counsel to review his conviction had ended 60 days after he was placed on probation. We agree; an order of probation is a tentative and amendable sentence and a final judgment of conviction.

The issues involved were recently considered by the Court of Appeals of Illinois in People v. Nordstrom ⁶

'There has long been confusion as to whether and when an appeal will lie if probation is granted. Prior to the adoption of the present Criminal Code, it was thought that the granting or denying of probation to an accused rested solely in the discretion of the trial court. * * * that upon the entry of an order for probation, the cause stood continued in the trial court during the probationary period and a reviewing court was without jurisdiction to hear any phase of the matter * * * and that the defendant had waived his right to appeal a conviction if he accepted probation. * * * Such views were finally put to rest in 1965 * * *. Presently an appeal will lie from the original judgment of conviction after probation is granted, and from an order revoking probation, if perfected according to the provisions of applicable statutes and court rules. The issues are separate and independent. An accused should not be coerced into waiving an appeal by accepting probation.

As to when the time for an appeal starts to run, there likewise has been uncertainty. In the absence of a statute providing otherwise, an appeal will lie only from a final judgment. * * * I n criminal cases, the sentence, in the legal sense, is usually treated as synonymous with final judgment. * * * In Illinois, it has been the practice, both prior to the adoption of the Code * * * and under the Code * * * to grant probation before sentence is imposed. If the defendant is admitted to probation, sentence is not then imposed.

This has lead to the contention that if probation is granted there is no final judgment from which an appeal will lie and, hence, the period for appealing a conviction cannot start to run until sentence is imposed. In Toyosaburo Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943), the Supreme Court considered the question. Previously in Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204 (1937), it had decided that an appeal would lie where sentence had been imposed but was suspended, and the defendant placed on probation. There was language in Berman, however, which indicated that the court accepted the proposition that in a criminal case the sentence was the final judgment, and thus by implication, the opinion suggested that an appeal would not lie if probation were granted prior to the imposition of a sentence.

In Korematsu, probation was granted prior to the imposition of sentence; and the court held that the judgment of guilt was equally final when the imposition of the sentence itself was suspended and the defendant placed on probation. The court noted that the probationary surveillance is the same whether or not sentence is imposed; that in either case the granting of probation follows a finding of guilt and is an authorized mode of mild and ambulatory punishment intended as a reforming discipline; that whether or not sentence is imposed in the granting of probation, the liberty of one 'judicially determined to have committed an offense' is abridged in the public interest; and that probation is intended to be a means to restore offenders who are good social risks to society and to afford the unfortunate another opportunity by clemency. The court concluded, 319 U.S. on page 435, 63 S.Ct. on page 1126, quoting in part from its prior decision in Berman, as follows:

"In criminal cases, as well as civil, the judgment is final for the purpose of appeal 'when it terminates the litigation * * * on the merits' and 'leaves nothing to be done but to enforce by execution what has been determined." * * * Here litigation 'on the merits' of the charge against the defendant has not only ended in a determination of guilt, but it has been followed by the institution of the disciplinary measures which the court has determined to be necessary for the protection of the public.'

For a judgment to be final and appealable, it must terminate the litigation between the parties on the merits of the cause. It need not dispose of all the issues presented by the pleadings, but it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or some definite part thereof. * * * Certainly the judgment of guilty terminates the cause on the merits, and it is a final adjudication that the offense charged in the indictment was, in fact, committed by the defendant. If an accused is found guilty or enters a plea of guilty and is granted probation, the execution of the judgment is the continuance of the probation. We hold that the judgment of guilty is a final judgment and the time within which to perfect an appeal therefrom is not extended to such time as when the probation may be revoked.'

The foregoing language is from the Court of Appeals decision; the Supreme Court of Illinois affirmed but noted that:

'* * * the finality of a judgment of guilty without the imposition of sentence has been in the past a subject of semantic controversy * * *.'

The Supreme Court of Illinois further noted that its new code resolved the question in 'accordance with prevailing legal opinion.' The same result is also reached in other states by statute ⁷; and the proposed Michigan Revised Criminal Code provides ⁸

'When a person is convicted of any offense, the court * * * may sentence him to a period of probation * * * The sentence is tentative to the extent that it may be altered or revoked * * * but for all other purposes it is a final judgment of conviction.'

By permitting review of a conviction by appeal as of right although the convict was placed on probation, the innocent can correct an unjust conviction and obtain a new trial while witnesses are available; and, most likely he can choose and hire his lawyer. The 1963 Constitution added the right of appeal in a criminal case; Art. I, § 20 now provides, in part:

'In every criminal prosecution, the accused shall have the right * * * to have an appeal as a matter of right.'

Statistics ⁹ indicate that about 75% Of all offenders With no previous record are placed on probation by the circuit courts for all crimes except the most serious; so, unless the conviction and...