People v. Higgins

• Decision Date: 24 March 1970
• Docket Number: No. 2,Docket No. 6127,2
• Citation: 177 N.W.2d 716,22 Mich.App. 479
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earle B. HIGGINS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 716

177 N.W.2d 716

22 Mich.App. 479

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earle B. HIGGINS, Defendant-Appellant.

Docket No. 6127.

Court of Appeals of Michigan, Division No. 2.

March 24, 1970.

Released for Publication June 26, 1970.

Sheldon Otis, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and T. M. BURNS and DANHOF, JJ.

BURNS, Judge.

On March 18, 1968, defendant entered a plea of guilty in the Washtenaw County Circuit Court to the charge of breaking and entering an occupied dwelling.* After a presentence investigation was completed and a report submitted, the trial judge sentenced the defendant on August 9, 1968 to five years probation. Besides the usual conditions of probation, the trial judge imposed as an additional condition of probation that defendant was not permitted to play either college or professional basketball during term of probation without trial the court's consent.

Defendant on appeal asserts that this condition is invalid.

The defendant, a college basketball player of no small ability, is in school on an athletic scholarship which he would lose if he were not permitted to play. The people assert that since the trial court gave its permission for the defendant to play ball for his college, some seven months after the probation order, the question is now moot. We do not find it thus since such play as well as any possible professional offer is contingent on the court's approval. Neither do we find that the defendant's agreement to abide by such a probation provision waives his right to appeal and challenge the legality of the provision, as the people suggest. The defendant could understandably have believed that if he did not accept the probationary terms set down by the trial judge, the offer of probation would be revoked and he would be sent to jail. See O'Hara v. People (1879), 41 Mich. 623, 624, 3 N.W. 161. Compare People v. Mulier (1968), 12 Mich.App. 28, 162 N.W.2d 292.

Although the trial court need not have granted probation in this, or any other case, once he decides to order probation rather than imprisonment the conditions he imposes on such probation must be lawful. M.C.L.A. § 771.3 (Stat.Ann.1969 Cum.Supp. § 28.1133). See People v. Becker (1957), 349 Mich. 476, 84 N.W.2d 833; People v. Baum (1930), 251 Mich. 187, 231 N.W. 95; People v. Smith (1930), 252 Mich. 4, 232 N.W. 397.

This Court said in City of Detroit v. Del Rio (1968), 10 Mich.App. 617, 620, 157 N.W.2d 324, 325:

'It would serve no useful purpose to attempt to catalogue what may be 'other lawful conditions of probation.' The Court is not disposed to attempt what the legislature avoided, and it is clear that considerable latitude is intended for the trial judge in imposing the conditions he may deem pertinent to the offense and appropriate to the rehabilitation of the offender.'

The trial judge stated no reason for the restriction, nor have the people explained how this restriction might be related to the defendant's rehabilitation. On the other hand, the defendant has persuasively shown that the restriction on playing basketball is more likely to impede than to promote his rehabilitation. As no rational reason has been suggested in justification and as it appears that the restriction is more likely to impede rehabilitation than promote it, we conclude that it is not a 'lawful provision' within the meaning of the statute.

Consequently, we reverse the trial court to the extent of this illegal provision, numbered twelve on the probation order.

Reversed.

DANHOF, Judge (dissenting).

My dissent is not predicated upon any dispute with what the majority has written in regard to the law, but rather because it does not fit the instant case.

An examination of the record discloses that at the time the defendant entered his plea of guilty to the charge of breaking and entering an occupied dwelling he was in violation of a previous probation order entered by a court in the State of Wyoming. At the time of his conviction the defendant was attending Eastern Michigan University on an athletic scholarship and undoubtedly this had some influence on the trial court in again granting the defendant probation. The trial judge placed defendant on 5 years probation and stated as one of the conditions of the probation 'No varsity or professional basketball during probation unless permitted by the Court.' Thereafter upon petition by the defendant the trial judge amended the previous order of probation and allowed the defendant to participate in basketball at Eastern Michigan University. By granting this amendment the trial judge showed more than a passing interest in the rehabilitation of the defendant but still was trying to impress upon him the seriousness of his past behavior.

The defendant has appealed alleging that the original prohibition against basketball constituted cruel and unusual punishment in violation of the 8th Amendment of the United States Constitution and Const.1963, art. 1, § 16. This argument is so palpably without merit that it does not warrant further discussion.

The legislature has announced as a State policy that probation is a matter of...