People v. Buckner, Docket No. 49143
| Decision Date | 19 December 1980 |
| Docket Number | Docket No. 49143 |
| Citation | 103 Mich.App. 301,302 N.W.2d 848 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myrick BUCKNER, Defendant-Appellant. 103 Mich.App. 301, 302 N.W.2d 848 |
| Court | Court of Appeal of Michigan — District of US |
[103 MICHAPP 302] Lawrence Baron, Detroit, for defendant-appellant.
Michael F. Bakaian, Detroit, for plaintiff-appellee.
Before CAVANAGH, P. J., and WALSH and RILEY, JJ.
Defendant appeals from an order of probation revocation. We reverse and remand for a new hearing.
Defendant's probation was revoked on the evidence that after being placed on probation he had been twice arrested, once on a charge of unlawfully driving away an automobile, M.C.L. § 750.413; M.S.A. § 28.645, and once on charges of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and felony firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2). There was no testimony or other evidence relating to the events which precipitated these arrests.
[103 MICHAPP 303] A conviction on the charges for which a defendant was arrested is not a prerequisite to a finding of probation violation based on the arrests. Because of the different standards of proof required for a criminal conviction and a probation revocation, probation may be revoked even if a defendant is acquitted on the charges for which he was arrested. People v. Nesbitt, 86 Mich.App. 128, 136, 272 N.W.2d 210 (1978). But probation may not be revoked solely on the basis that the probationer was arrested. There must be verified facts in the record, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), from which the court can find by a preponderance of the evidence, People v. Billy Williams, 66 Mich.App. 67, 238 N.W.2d 407 (1975), that the violation was committed. We find no such evidence in this record.
The people contend that since defendant was subsequently convicted, on his plea of nolo contendere, of the offense of unlawfully driving away an automobile, no remand is necessary. We disagree. Although defendant's conviction of UDAA constitutes a violation of probation, his sentence for probation violation was based on an assumption that he was guilty of armed robbery, felony-firearm and UDAA. Since the findings of the court on remand relating to the armed robbery charges and the felony-firearm charges may alter his sentence, the defendant has a right to a new hearing. People v. Bell, 67 Mich.App. 351, 241 N.W.2d 203 (1976). Moreover, at the new hearing the...
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