People v. Davis, 8
| Decision Date | 02 August 1974 |
| Docket Number | No. 8,8 |
| Citation | 392 Mich. 221,220 N.W.2d 452 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Odell DAVIS, Defendant-Appellant. 392 Mich. 221, 220 N.W.2d 452 |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Dominick P. Carnovale, Chief, Appellate Dept., Edward R. Wilson, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
Carl Ziemba, Detroit, for defendant-appellant.
Before the Entire Bench.
The dispositive issue in this case is whether the trial judge had authority to place defendant, who was convicted of armed robbery, on probation. The opinion will also speak to the due process requirements of a probation revocation hearing.
Defendant was found guilty by the court sitting without a jury of robbery armed on July 10, 1969. The court placed defendant on probation for a period of three years, the terms of which required defendant to serve the first six months in the Detroit House of Correction and to pay costs of $240 within a year after his sentence was completed and that he pay restitution in the amount of $100 during the first six months after release from Dehoco. Probation was imposed on August 7, 1969. On October 2, 1970, a warrant for probation violation was issued against defendant.
On April 26, 1972, defendant appeared in Recorder's Court for a hearing on violation of probation. The court offered to appoint a lawyer for defendant but he said he did not want a lawyer. The court stated that according to the October 2, 1970 Notice of Probation Violation the defendant had paid only $10.00 in court costs and nothing in restitution and that the judge had been informed that there was pending against the defendant a new charge of robbery armed in Recorder's Court. Defendant had received a copy of this Notice of Probation Violation the day before the hearing.
At the hearing the following exchange took place between the judge and the defendant:
'The Court: You understand what this is all about?
'The Defendant: Not really.
'The Court: I can't hear you.
'The Defendant: Not really.
'The Court: What is it you do not understand?
'The Court: Don't you remember when you were before me the last time and you were found guilty of armed robbery?
'The Defendant: Yes.
'The Court: How much did you send?
'The Defendant: I sent two hundred even.
'The Court: Have you got any proof of that?
'The Defendant: Just my wife and my brother.
'The Court: Have you got any money order stubs, anything like that, canceled checks?
'The Defendant: No.
'The Court: Who did you send it by?
'The Defendant: I sent it through the mail.
'The Court: In cash?
'The Defendant: Yes.
'The Court: Well, our records indicate that you paid only $10.00.
'The Court: So you are in violation of your probation. . . .' (Transcript of Probation Violation Hearing, pp. 3--4.)
The court found defendant guilty of violating his probation. Probation was revoked and defendant was committed to the State Corrections Commission for a period of not less than 7 1/2 years and not more than 15 years. The Court of Appeals denied leave November 24, 1972. We granted leave to appeal on March 15, 1973. 389 Mich 776.
The legislature has given a clear mandate to the trial bench on the granting of probation. M.C.L.A. § 771.1; M.S.A. § 28.1131 provides in part:
'In all prosecutions for crimes or misdemeanors, Except murder, treason, and Robbery while armed, where the defendant has been found guilty upon verdict or plea, and where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer. . . .' 1 (Emphasis added.)
This Court has recognized that the source of probation authority is legislative:
'The granting of probation in criminal cases is subject to he provisions of chapter 11 of the code of criminal procedure, Act No. 175, Pub.Acts 1927, as amended.' People v. Sutton, 322 Mich. 104, 108--109, 33 N.W.2d 681, 683 (1948).
'The authority of the court must be found in the statute.' People v. Marks, 340 Mich. 495, 498, 65 N.W.2d 698, 700 (1954).
Therefore the placing of defendant, convicted of armed robbery, on probation in this case was a void act as the judge had no statutory authority to do so. Indeed placing defendant on probation was a violation of the legislative mandate. It follows then that defendant could not really have violated his probation because in law that probation and its terms are non-existent. Thus the trial court had no jurisdiction to summon defendant before the court for the revocation of his probation. If the defendant had not been on probation, he would never have come before the court for a violation of the terms of probation which led to the imposition of the sentence.
Since the purported placing of defendant on probation was a nullity, the matter returns to the Status quo ante, or with the defendant being ready for sentencing. As a consequence the matter is reversed and remanded to Recorder's Court for sentencing.
We hold that the defense employed in this case may be raised only in future cases and in pending cases where defendants timely contested and are presently contesting being placed on probation in violation of M.C.L.A. § 771.1; M.S.A. § 28.1131.
As already noted, the case is reversed and remanded to Recorder's Court for sentencing.
We granted leave to appeal because we saw merit in the defendant's contention that the procedures followed in the revocation of his probation were not in accord with the statute and due process of law. The majority does not reach this issue but, rather, disposes of the case on another issue raised by defendant which, in my opinion, he has no standing to raise.
Sixty years ago the Legislature enacted that a person convicted of armed robbery may not be placed on probation. Yet in the intervening years the practice developed of imposing sentences other that to state prison.
In a recent year 43 of the 75 persons convicted of armed robbery were not sentenced to state prison. Odell Davis, in lieu of a sentence to state prison, was sentenced to serve 6 months in the county jail and placed on three-years probation.
The 43 persons not sentenced to state prison in that one year were sentenced by 8 judges in the Circuit Courts of Wayne, Oakland, Jackson, Genesee and Ingham Counties and by at least 7 Recorder's Court judges. We are informed that this was not an atypical year.
These judges who do not sentence some persons convicted of armed robbery to state prison would, no doubt, defend this practice not only in human and practical terms but on legal grounds as well. We ought not easily to assume that the literal meaning apparent to some of us is the only possible meaning.
On full adversary presentation we may, indeed, conclude that this diversion from the rigors of state prison is contrary to the statute, but we should not attempt to decide that question except at the instance of someone who may properly be heard to complain--a prosecuting attorney or the Attorney General. We should not so decide in a case where leave was granted for another reason; we should not reach out to decide this question although it may seem to be...
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