People v. Blakely, Docket No. 19643

• Decision Date: 23 June 1975
• Docket Number: No. 1,Docket No. 19643,1
• Citation: 233 N.W.2d 523,62 Mich.App. 250
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred BLAKELY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 523

233 N.W.2d 523

62 Mich.App. 250

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred BLAKELY, Defendant-Appellant.

Docket No. 19643.

Court of Appeals of Michigan, Division No. 1.

June 23, 1975.

Released for Publication Oct. 6, 1975.

Sol Plafkin and Rose Mary C. Robinson, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Appellate Chief, Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and QUINN and MAHER, JJ.

MAHER, Judge.

Defendant pled guilty to the crime of larceny under $100, M.C.L.A. § 750.356; M.S.A. § 28.588, on May 15, 1973. He was sentenced to one year probation with payment of $50 in costs.

On December 13, 1973, defendant's probation officer filed a notice of probation violation which alleged the following:

'* * * That Fred Blakely has violated the terms of his probation as follows:

'1. Defendant last reported September 6, 1973.

'2. He has paid nothing to date toward court assessments.

'3. Last home call 11--5--73 writer left card in door. Defendant has failed to respond to contact made.

'4. There is also a capias issued by Judge Henry Heading for failing to appear in court on the charge of larceny under $100, Docket No. 73--54412.'

The notice requested that a warrant be issued for defendant's arrest pending a hearing and a warrant was approved on December 17, 1973.

Defendant was arrested and arraigned on the warrant for violation of probation on January 7, 1974. Defendant indicated that he was attempting to enter the armed forces and, at his request, the hearing on the probation violation was adjourned until February 7, 1974 in order for defendant to pursue that option. Defendant was released on personal bond.

A hearing was held on February 7, 1974. A court aide from the department of probation was called to testify. However, on cross-examination by defense counsel, it was determined that she had not prepared the probation violation report and the hearing was recessed until February 25, 1974, in order to have defendant's probation officer brought into court. A $1,500 surety bond was set.

Defendant was unable to post the bond. However, through a habeas corpus proceeding, defendant was able to have it reduced. Defendant was released on February 8, 1974, after posting a $1,000 personal bond.

A full hearing, at which defendant was represented by counsel, was held on February 25, 1974. Defendant's aunt, with whom defendant was living, testified that they never received any notices from the probation department. She stated that defendant's failure of the literacy test prevented him from joining the army but that defendant had a good chance of getting into a job corps program. Defendant's probation officer testified that defendant neither reported to him nor paid court costs as required by the terms of his probation and that a capias had been issued on a new charge of larceny. The judge found defendant in violation of probation and sentenced him to 90 days in the Detroit House of Correction. Defendant served 50 days of his sentence before being granted personal bond pending this appeal.

A probationer is entitled to a preliminary hearing 'to determine whether there is probable cause or reasonable ground to believe that the arrested (probationer) has committed acts that would constitute a violation of (probation) conditions'. Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972), as applied to probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

'* * * (T)he (probationer) should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a (probation) violation. The notice should state what (probation) violations have been alleged. At the hearing the (probationer) may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the (probationer), a person who has given adverse information on which (probation) revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.

'The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the (probationer) and the substance of the documents or evidence given in support of (probation) revocation and of the (probationers) position. Based on the information before him, the officer should determine whether there is probable cause to hold the (probationer) for the final decision * * * on revocation. Such a determination would be sufficient to warrant the (probationer's) continued detention and return to the state correctional institution pending the final decision.' Morrissey v. Brewer, supra, 408 U.S. at 486--487, 92 S.Ct. at 2603.

The United States Supreme Court, however, was not establishing an inflexible structure for probation revocation procedures. Morrissey v. Brewer, supra, 408 U.S. 471, 487, 490, 92 S.Ct. 2593. Where the actual revocation hearing is held sufficiently close in time and place to the arrest, due process would appear to be satisfied. The reason for such a preliminary hearing is explained in Morrissey v. Brewer, supra, 408 U.S. at 485, 92 S.Ct. at 2602:

'There is typically a substantial time lag between the arrest and the eventual determination * * * whether (probation) should be revoked. Additionally, it may be that the (probationer) is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal...