People v. Miller, Docket No. 28814

• Decision Date: 09 August 1977
• Docket Number: Docket No. 28814
• Citation: 77 Mich.App. 381,258 N.W.2d 235
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Buford MILLER, Defendant-Appellant. 77 Mich.App. 381, 258 N.W.2d 235
• Court: Court of Appeal of Michigan — District of US

Page 235

258 N.W.2d 235

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Buford MILLER, Defendant-Appellant.

Docket No. 28814.

77 Mich.App. 381, 258 N.W.2d 235

Court of Appeals of Michigan.

Aug. 9, 1977.

Released for Publication Oct. 17, 1977.

[77 MICHAPP 383] BeGole, Lukomski, Maddock & MacDonald by Lawrence B. MacDonald, Detroit, for defendant-appellant.

[77 MICHAPP 382] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., [77 MICHAPP 383] Robert A. Ruether, Asst. Pros. Atty., for plaintiff-appellee.

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

PER CURIAM.

On November 29, 1974, defendant was placed on 2 years probation after pleading guilty to attempted receiving and concealing stolen property over the value of $100. M.C.L.A. § 750.535, M.C.L.A. § 750.92; M.S.A. § 28.803, M.S.A. § 28.287. On March 6, 1975, the police executed an authorized search warrant at 2557 Fairview in Detroit where they found defendant and confiscated certain items. As a result of this search, on April 24, 1975, a warrant was issued for defendant's arrest for violation of the controlled substances act. At the arraignment on this charge on June 10, 1975, a preliminary exam was set for June 18, 1975.

A notice of probation violation and warrant were issued on June 17, 1975. At the June 19, 1975 arraignment on this warrant, a probation revocation hearing was set for June 25, 1975. Between June 19 and November 7, 1975, defense counsel was granted two continuances. On November 7, 1975, when the hearing was finally held, the court found defendant had violated the terms of his probation and revoked it. Defendant was then sentenced to 1 1/2 to 2 1/2 years in prison on the original attempted receiving and concealing stolen property conviction. Defendant appeals from the order revoking his probation. We affirm.

Three issues are raised on appeal. Defendant [77 MICHAPP 384] first contends that the delay between the incident violating probation, the notice of violation and the hearing constituted a denial of due process since the authorities failed to act with "due diligence". The event violating probation occurred March 6, 1975; the notice of probation violation and warrant were issued on June 17, 1975; and the revocation hearing took place on November 7, 1975.

This Court has held that a warrant for an alleged probation violation must be executed with due diligence and that failure on the part of the authorities to proceed with due diligence results in a waiver of the violation. People v. Henry, 66 Mich.App. 394, 239 N.W.2d 384 (1976), People v. Diamond, 59 Mich.App. 581, 229 N.W.2d 857 (1975). In the instant case, we cannot find a lack of due diligence on the part of the authorities.

The 5-month delay between the notice of probation violation on June 17 and the revocation hearing on November 7 was attributable to defendant or was for his benefit. This undermines the validity of defendant's claim as to lack of due diligence during the 5-month period. People v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972), People v. Butcher, 46 Mich.App. 40, 207 N.W.2d 430 (1973).

To ascertain whether the authorities exercised due diligence between the incident allegedly violating probation and the issuing of the probation violation notice, we consider it appropriate to refer to the guidelines established by our Supreme Court in the speedy trial cases. In People v. Collins, supra, the Court cited the factors to be taken into account in deciding whether a defendant has been deprived of his right to a speedy trial, three of which are relevant here: length of delay, reason for delay and prejudice to the defendant.

The delay from the date of the incident to [77 MICHAPP 385] arraignment on the probation violation notice was 3 1/2 months. This Court has, in various circumstances, approved delays of from 6 months, People v. Henry, supra, to 3 years, People v. Diamond, 70 Mich.App. 512, 245 N.W.2d 809 (1976). Because the warrant in the narcotics case was not issued until April 24, 1975 and the preliminary examination thereon set for June 18, 1975, it was not unreasonable to wait to issue the probation violation notice until June 17. Delaying the proceedings on the probation violation, which was based on the commission of another crime, until after the probable cause hearing for the other crime was not only reasonable but to defendant's benefit. Defendant alleges no prejudice from the delay. He was free on bond during the entire period. We are unable to conclude that the authorities did not exercise due diligence.

Defendant's second assertion is that he was denied due process because he did not receive a preliminary probable cause hearing in the matter of his probation revocation. The due process standards of 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), are satisfied by Michigan's single revocation hearing procedure if that hearing is held sufficiently close in time to the notice of probation violation. People v. Blakely, 62 Mich.App. 250, 233 N.W.2d 523 (1975), People v. Jackson, Jr., 63 Mich.App. 241, 234 N.W.2d 467 (1975), People v. Hardenbrook, 68 Mich.App. 640, 243 N.W.2d 705 (1976). Defendant's hearing, as originally scheduled, was sufficiently close in time to comport with due process standards. Subsequent delays were due solely to adjournments requested by defense counsel.

[77 MICHAPP 386] In addition, since defendant was free on bond and alleges no prejudice as a result of the delay, we find no due process violation. Cf. United States v. Sciuto, 531 F.2d 842 (CA 7, 1976), and Callison v. Department of Corrections, 56 Mich.App. 260, 223 N.W.2d 738 (1974).

Finally, this Court observed in People v. Leroy Jackson, Jr., supra, that several jurisdictions have held there are certain situations in which a preliminary hearing for probation revocation need not be held although due process standards will still be met. 63 Mich.App. at 245-246, fn. 7, 234 N.W.2d 467. One of these situations occurs when the conduct which constitutes a prima facie probation violation is also an...