Knobel v. State

• Decision Date: 29 March 1978
• Docket Number: No. 4841,4841
• Citation: 576 P.2d 941
• Parties: Bill KNOBEL, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 941

576 P.2d 941

Bill KNOBEL, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4841.

Supreme Court of Wyoming.

March 29, 1978.

Wyatt R. Skaggs, Natrona County Public Defender, Casper, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellant seeks a reversal of an order revoking his probation and a remand to the lower court for further proceedings.

Appellant was sentenced on April 1, 1976, to a term of not less than two nor more than four years by the district court in Natrona County. The court, however, suspended the execution of this sentence and placed appellant on probation for a term of two years, subject to certain conditions. Thereafter, and on June 15, a petition was filed by the county attorney, seeking revocation of the probation, which was thereafter denied. Another petition for revocation was then filed by the same office on March 11, 1977. The district judge found, based upon said petition, that good cause existed for the issuance of a warrant and required that a copy of the petition be served upon appellant along with such warrant. The warrant was issued and served upon appellant on April 5, and on April 13 his bond was reduced and he was released. The motion was set for hearing on May 25. Appellant moved to dismiss this proceeding on May 24, alleging that it was based upon grounds which had been held insufficient for revocation in the earlier proceeding; that no preliminary hearing had been had upon the matter as required by then § 7-331.1(a), W.S.1957, 1975 Cum.Supp. (now § 7-13-409, W.S.1977), and in further reliance upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; and that therefore the district court had no jurisdiction in this proceeding. The court overruled this motion, finding no violation of defendant's rights by virtue of the double jeopardy claim; that the proceeding to revoke was brought by the county attorney's office and not the Wyoming State Department of Probation and Parole; and that defendant had been provided with procedural due process. Appellant in this appeal pursues only the question of denial of due process, as phrased by his brief in this manner:

"THE APPELLANT WAS DENIED DUE PROCESS OF LAW IN VIOLATION OF THE UNITED STATES CONSTITUTION AND THE WYOMING STATUTES FOR DENIAL OF A PRELIMINARY OR PROBABLE CAUSE HEARING PRIOR TO THE FINAL REVOCATION HEARING."

Although the Morrissey case involves a proceeding to revoke a parole and Gagnon involves the revocation of probation, as in this case, the United States Supreme Court in Gagnon, relying heavily upon Morrissey approved the same rules as being applicable to both such type proceedings; and no further mention of this distinction appears necessary.

It is not uncommon to project holdings or decisions of the United States Supreme Court far beyond the boundaries of the case in which such statements were made, and it is our view that appellant has engaged in this activity in his argument herein. This, however, necessitates an examination of both Gagnon and Morrissey as a preliminary to this disposal, and to determine if they dictate the result appellant contends. There is one most important factual distinction between these cases and the instant case. Both these decisions arise upon a factual background where an administrative body and not a judicial officer or court determined the question of the revocation of the parole or probation. This distinction is noted in many cases, including People v. Vickers, 105 Cal.Rptr. 305, 8 Cal.3d 451, 503 P.2d 1313, 1319, and Petition of Meidinger, 168 Mont. 7, 539 P.2d 1185, 1189.

There are passages in these cases which cannot be ignored in the disposal here. The court in Gagnon appeared to summarize that holding in this manner:

"We return to the facts of the present case. Because respondent was not afforded either a preliminary hearing or a final hearing the revocation of his probation did not meet the standards of due process prescribed in Morrissey, which we have here held applicable to probation revocations. * * * " (Emphasis supplied.)

The court in Morrissey definitely disclaimed any "thought to create an inflexible structure for parole revocation procedures," 92 S.Ct. at 2604, and suggested the application of only a few basic requirements, which is inconsistent with the argument that these cases or either of them make the so-called separate preliminary hearing a necessary element of due process when the revocation is a matter of judicial proceedings.

Morrissey and Gagnon do prescribe a minimal constitutional due process to which a probationer is entitled if his probation is to be properly revoked, but were directed particularly at states which require no hearings before such revocation, Singletary v. State, Fla.App., 290 So.2d 116, 120, certiorari dismissed 293 So.2d 361 (the Supreme Court of Florida expressly adopted the holding of this case in State v. Griffith, Fla., 331 So.2d 313, 315), and State v. Myers, 86 Wash.2d 419, 545 P.2d 538, 544. This is not the situation in the State of Wyoming, which by virtue of Rule 33(f), W.R.Cr.P., provides that probation shall not be revoked except after hearing with the presence of the defendant, and with his having notice of the grounds of such action and his release upon bond. The required hearing under said rule in itself provides an inherent sort of fairness which is not achieved through administrative procedures, Petition of Meidinger, supra.

The factual posture of this case negatives any lack of due process. Appellant's...