People v. Gladdis

• Decision Date: 19 July 1977
• Docket Number: Docket No. 29992
• Citation: 77 Mich.App. 91,257 N.W.2d 749
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Andre GLADDIS, Defendant-Appellant. 77 Mich.App. 91, 257 N.W.2d 749
• Court: Court of Appeal of Michigan — District of US

Page 749

257 N.W.2d 749

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Andre GLADDIS, Defendant-Appellant.

Docket No. 29992.

77 Mich.App. 91, 257 N.W.2d 749

Court of Appeals of Michigan.

July 19, 1977.

Released for Publication Oct. 5, 1977.

[77 MICHAPP 92] Raymond L. Miller, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and KAUFMAN and BORCHARD, ^* JJ.

PER CURIAM.

On March 24, 1975, defendant pled guilty in Detroit Recorder's Court to attempt to carry a pistol in a motor vehicle and was sentenced to 2 years on probation. On March 25, 1976, defendant was bound over for trial in Detroit Recorder's Court on two charges of delivery of heroin. He waived preliminary examination on a third such charge. On April 14, 1976, a notice of probation violation was filed and on April 16, 1976, a warrant for the violation was issued.

Defendant was arraigned on the probation violation warrant on May 17, 1976, bond was set at $10,000 and a hearing scheduled for May 20, 1976. On May 20, 1976, the hearing was adjourned at the prosecutor's request, until July 20, 1976, because the complaining witness, a state police officer, was in the hospital in a body cast as the result of an accident and was unable to testify. Throughout this time, defendant remained incarcerated.

On July 20, 1976, when the probation revocation [77 MICHAPP 93] hearing was held, the officer testified that on three separate dates defendant delivered heroin to him. Defendant's probation was revoked and on August 4, 1976, he was sentenced to 20 to 30 months in prison on the original conviction for attempt to carry a pistol in/motor vehicle. He was given 79 days credit for time served since the arraignment on the probation violation warrant. Defendant appeals as of right from the order revoking his probation.

Defendant contends that he was deprived of due process because the court failed to hold a preliminary hearing to determine whether there was probable cause to believe that a probation violation had occurred. Such a hearing, defendant claims, is mandated by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

This Court has held several times that the due process requirements of Morrissey, supra, and Gagnon, supra, are satisfied by Michigan's single revocation hearing procedure if that hearing is held sufficiently close in time to the notice of the probation violation. People v. Blakely, 62 Mich.App. 250, 233 N.W.2d 523 (1975), People v. Jackson, 63 Mich.App. 241, 234 N.W.2d 467 (1975), People v. Hardenbrook, 68 Mich.App. 640, 243 N.W.2d 705 (1976).

In People v. Jackson, supra, at 245-246, fn 7, the Court also observed that several jurisdictions have held that there do exist certain situations in which a preliminary hearing need not be conducted. Following the rationale that Morrissey and Gagnon were not intended "to create an inflexible structure" for revocation procedures, Morrissey v. Brewer, supra, 408 U.S. at 490, [77 MICHAPP 94] 92 S.Ct. at 2604, 33 L.Ed.2d at 499, and that such procedures were not intended "to foreclose the States from * * * developing other creative solutions to the practical difficulties of the Morrissey requirements", Gagnon v. Scarpelli, supra, 411 U.S. at 782, fn 5, 93 S.Ct. at 1760, 36 L.Ed.2d 662, various jurisdictions have not required preliminary hearings (1) when the probationer has been convicted of a new crime, In re Law, 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621 (1973); (2) when the preliminary examination on a new crime serves the dual purpose of determining probable cause for the commission of the crime and the violation of probation, People v. Buford, 42 Cal.App.3d 975, 117 Cal.Rptr. 333 (1974); and (3) when no prejudice is shown to the probationer because of the lack of a preliminary revocation hearing. State v. Morales, 120 N.J.Super. 197, 293 A.2d 672 (1972), cert. den. 62 N.J. 77, 299 A.2d 75 (1972), Lambur v. Chew, 356 F.Supp. 751 (E.D.Va.1973).

The California Supreme Court in In re Law, supra, remarked that when the conduct which constitutes a prima facie probation violation is also an independently charged new felony, the procedures afforded through the holding of a preliminary hearing are inclusive of or can be made to conform to the Morrissey requirements. But, the court stated, "(d)ue process would further require * * * that a (probationer) have fair notice of the nature and effect of a hearing intended to serve such a dual purpose".

In the present case, probable cause determinations were made on the heroin charges before defendant's arraignment on the probation violation warrant. A merger of the probable cause hearing on the new felony and the preliminary revocation hearing would have appropriately satisfied[77 MICHAPP 95] the due process requirements of Morrissey, as In re Law, supra, suggests, had the defendant been given notice of the nature and effect of a hearing intended to serve such a dual purpose.

Though no notice was given, petitioner is not entitled to relief by reason of the failure to hold a probable cause hearing unless he was prejudiced thereby. Cf. Callison v. Dept. of Corrections, 56 Mich.App. 260, 223 N.W.2d 738 (1974). In Michigan, the rule in effect is that the question of reversal is controlled by...