City of Detroit v. Del Rio

• Decision Date: 02 April 1968
• Docket Number: No. 1,Docket No. 2761,1
• Citation: 10 Mich.App. 617,157 N.W.2d 324
• Parties: People of the CITY OF DETROIT, Plaintiff-Appellee, v. James DEL RIO, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 324

157 N.W.2d 324

10 Mich.App. 617

People of the CITY OF DETROIT, Plaintiff-Appellee, v. James DEL RIO, Defendant-Appellant.

Docket No. 2761.

Court of Appeals of Michigan, Division No. 1.

April 2, 1968.

J. Leonard Hyman, by Philip Green, Detroit, for appellant.

Robert Reese, Corp. Counsel, Detroit, for appellee.

Before BURNS, P.J., and HOLBROOK and PETERSON, ^* JJ.

PETERSON, Judge.

Defendant was convicted in recorder's court of the city of Detroit of violating section 38--7--6 of the Detroit municipal code by entering an intersection against a red light, and was placed on probation for six months. A condition of probation prohibited him from operating a motor vehicle during the probationary term. It is of this condition that defendant complains, contending that the recorder's court is without power to make such an order, or that, if the power exists, the entry of the order was an abuse of discretion.

So far as is here pertinent, the ordinance in question is identical to section 612 of the Michigan vehicle code, C.L.S.1961, § 257.612, as amended by P.A.1966, No. 237 (Stat.Ann.1968 Cum.Supp. § 9.2312). Punishment under the ordinance may be by fine or jail or both. ¹

In this setting, the power to enter probation orders under chapter 11 of the code of criminal procedure, C.L.1948 and C.L.S.1961, § 771.1 et seq. (Stat.Ann.1954 Rev. and Stat.Ann.1968 Cum.Supp. § 28.1131 et seq.), has been established. Both People v. Goldman (1923), 221 Mich. 646, 192 N.W. 546, and People v. Sarnoff (1942), 302 Mich. 266, 4 N.W.2d 544, 140 A.L.R. 1206, affirm the existence of such power, the former involving a violation of the Detroit traffic ordinance, the latter a violation of the Detroit building code. ²

Section of the probation chapter of the code of criminal procedure, C.L.S.1961, § 771.3 (Stat.Ann.1968 Cum.Supp. § 28.1133), deals with conditions of probation. Some conditions are specified as mandatory in every probationary case. Other conditions are expressly permitted where found appropriate in the discretion of the trial judge. In addition, it is provided that:

'The court may impose such other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper.'

It would serve no useful purpose to attempt to catalogue what may be 'other lawful conditions of probation.' The Court is not disposed to attempt what the legislature avoided, and it is clear that considerable latitude is intended for the trial judge in imposing the conditions he may deem pertinent to the offense and appropriate to the rehabilitation of the offender. ³

In the former category, the act itself provides one example, that of restitution. Sarnoff, supra, approved another, the requirement that the defendant supply the omission which constituted the offense, Viz., making building repairs necessary to comply with the Detroit building code. In the latter category is the host of possible conditions dealing with the offender himself, which are intended for his guidance and rehabilitation. Such conditions deal with his conduct, habits, and behavioral needs. Often the two categories coincide, e.g., a program of restitution may be pertinent to the offense of theft and at the same time be instrumental in helping the offender acquire a sense of responsibility as to his act and as to his financial affairs. Similarly, a probation condition prohibiting, or imposing limitations on, the operation of a motor vehicle could be pertinent to a variety of offenses, not necessarily limited to the vehicle code and like ordinances, and may also be a useful device in imposing controls upon a particular offender. So viewed, the probationary condition in the instant case would not appear to be beyond the discretion vested in the trial judge by the statute.

Defendant contends, however, that even if the statute is so construed, power to impose this specific condition has been preempted by the provisions of section 317 et seq. of the Michigan vehicle code, C.L.S.1961, 1961, § 257.317 et seq. (Stat.Ann.1960 Rev. § 9.2017 et seq.), providing for the revocation or suspension of drivers' licenses through several different procedures and following various specified events. The establishment by the legislature of these procedures is said to be intended to fix the exclusive procedure for revocation and suspension of licenses. The vehicle code does not so provide in so many words, and appellant cites no authority for this proposition. We think it clear, in any event, that the purposes of the statute were not intended to be identical with those contemplated by the code of criminal procedure. Thus, while suspension or revocation under the vehicle code may well have a chastening effect, the purpose of those procedures is traffic safety.

'In the first place, the revocation of an operator's license * * * is not a criminal penalty * * * and it is not a punishment for the offense. Rather, the conviction of certain offenses is declared to show--conclusively, to be sure, unless called into question under section 20 ⁴--the unfitness of the offender to operate a motor vehicle on the public streets and highways,' In re Probasco (1934), 269 Mich. 453, 457, 257 N.W. 861, 862.

The purposes of the code of criminal procedure, on the other hand, may coincide with the public aim of traffic safety but not necessarily so, and the Court finds nothing in the vehicle code designed to subordinate the purposes and powers of the courts under the code of criminal procedure to the purposes of the vehicle code.

It is the contention of the defendant, however, that imposition of the condition amounted to an abuse of discretion. Defendant argues that the offense was of a relatively...