People v. Pickett

• Decision Date: 19 March 1974
• Docket Number: No. 8,8
• Citation: 391 Mich. 305,215 N.W.2d 695
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William PICKETT, Defendant-Appellant. 391 Mich. 305, 215 N.W.2d 695
• Court: Michigan Supreme Court

Page 695

215 N.W.2d 695

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William PICKETT, Defendant-Appellant.

No. 8.

391 Mich. 305, 215 N.W.2d 695

Supreme Court of Michigan.

March 19, 1974.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Department, Thomas M. Khalil, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Carl Ziemba, Detroit, for defendant-appellant.

Before the Entire Bench.

WILLIAMS, Justice.

This is a case of first impression in this Court.

The issue is: At what point is there an appeal as of right where there has been probation after conviction and the violation of that probation. More specifically, is there an appeal as of right:

(1) When a defendant is placed on probation after conviction?

(2) When a defendant is given a penalty when he has been found to have violated his probation?

An additional issue, if there is an appeal as of right at the time of penalty after probation violation, what are the parameters of that appeal--does it cover everything from the commission of the orginal crime? does it cover only the commission of the probation violation and thereafter?

As not infrequently, not only is there a strictly legal problem involved, there are also very practical problems involved for the defendant, the prosecution and the court. Practically if the defendant is given probation after conviction, he is not too much concerned about an appeal of right at that time. He faces no immediate prospect of imprisonment, and that is what matters to him. Actually, there are very, very few appeals as of right sought at this time. ¹ On the other hand, with the prison doors about to swing open for him after determination of a probation violation, the defendant very often is concerned about an appeal as of right. The prosecution and the courts have an administration of justice problem if there is an appeal as of right after determination of a probation violation, if that means that the defendant may rake up alleged errors going back to the original conviction and beyond that to arrest, etc. Since a period of years may very well be involved, the problems of finding witnesses in our mobile society, the state of their memory, the availability of records and exhibits, etc., are very real and very significant.

We hold that there is an appeal as of right both after the original conviction and the granting of probation and also after determination of violation of probation and imposition of penalty, the appeal in each case being limited to the matters surrounding the immediate violation involved, i.e., after original conviction to those matters relating to the original crime, after probation violation to those matters relating to the probation violation.

I--FACTS

Defendant, originally charged with robbery armed, pled guilty on May 17, 1971, to assault with intent to rob being armed. On June 7, 1971, he was placed on three years of probation. He did not appeal this conviction.

On September 20, 1972, the trial judge found that defendant had violated the terms of his probation by not reporting to his probation officer and failing to pay court costs which had been made a part of his probation. Probation was revoked, and defendant was sentenced from 3 to 15 years. On October 11, 1972, defendant petitioned for counsel as an indigent and counsel was appointed on January 4, 1973.

Defendant then sought an appeal as of right to the Court of Appeals, and filed a claim of appeal on January 30, 1973. This claim was dismissed on order of the Court of Appeals relying on Calhoun v. Macomb Circuit Judge, 15 Mich.App. 416, 423, 166 N.W.2d 657, 661 (1968), which held 'The time for appeal as of right . . . ends sixty days after the conviction is first executed . . . by a tenative sentence of probation.' We granted leave on June 28, 1973. 389 Mich. 813.

II--AUTHORITY FOR APPEAL AS OF RIGHT

Const.1963, art. 1, § 20 states in pertinent part:

'In every criminal prosecution, the accused shall have . . . an appeal as a matter of right; . . .'

This was a new right given to defendants in criminal prosecutions. ² As such, it was given careful consideration by the delegates to the Constitutional Convention. One question which arose was whether the language 'an appeal' meant One appeal. The committee comment to this section closed as follows:

'We desire to grant the status of a categorical constitutional right to At least one appeal in a criminal case. We do not intend to restrict the legislature in its power to provide by law for additional appeals.' 1 Official Record, Constitutional Convention 1961, p. 469. (Emphasis added.)

During debate on this section, an amendment was offered which would have stricken the word 'an' before the word 'appeal' and replaced it with the word 'one.' One of the delegates spoke in opposition to the amendment:

'MR. HODGES: Speaking in opposition to the Madar amendment, I think we again find ourselves with the same problem. We would be limiting the legislature's right to set up further appeals if they want. We are not here in the bill of rights trying to set up limitation of rights but rather to give rights. We are setting a floor here by saying an appeal is a matter of right. If the legislature wants to give more than one later on, that's their prerogative. What we are interested in is giving an appeal as a matter of right.' 1 Official Record, Constitutional Convention 1961, p. 567. (Emphasis added.)

By a voice vote, the amendment was defeated. No attempt was made to constrain the legislature from broadening this right. The general right guaranteed by art. 1, § 20 of the Michigan Constitution, therefore, is 'at least one appeal.'

The legislature spoke to this right by enacting two statutes. 1968 P.A. 116, § 1 (M.C.L.A. § 600.308; M.S.A. § 27A.308) states:

'The court of appeals has jurisdiction on appeals from:

(1) All final judgments from the circuit courts, court of claims, and recorder's court, except judgments on ordinance violations in the traffic and ordinance division of recorder's court. Appeals from final judgments from all other courts and from convictions for ordinance violations in the traffic and ordinance division of recorder's court shall be taken to the circuit courts, upon which further review may be had only upon application for leave to appeal granted by the court of appeals.

(2) Such other judgments or interlocutory orders as the supreme court by rule may determine.'

1964 P.A. 281, § 309 (M.C.L.A. § 600.309; M.S.A. § 27A.309) states:

'All appeals to the court of appeals from final judgments or decisions permitted by this act shall be a matter of right. All other appeals from other judgments or orders to the court of appeals permitted by statute or supreme court rule shall be by right or by leave as provided by the statute or the rules promulgated by the supreme court.'

The constitutional guaranty is further effectuated by GCR 1963, 806.1 which reads in part:

'In all criminal and civil matters, an aggrieved party shall have a right to appeal from all final judgments or final orders from the Circuit Courts, Court of Claims and Recorder's Court, except judgments on ordinance violations in the Traffic and Ordinance Division of Recorder's Court. . . .'

The legislature and this Court have defined the constitutional authority to appeal as of right to lie from all final judgments, orders and decisions. The

question then is to apply this definition to the facts of

this case. III--IS IMPOSITION OF PENALTY AFTER

DETERMINATION OF PROBATION VIOLATION A

FINAL JUDGMENT, ORDER OF

DECISION?

The issue in this case arises from the attempt of the defendant to claim an appeal as of right from the imposition of a penalty following determination of violation of probation. As our analysis of the constitution, legislation and court rules indicates, whether the defendant at this point can appeal as of right depends upon whether the imposition of penalty after the determination of probation violation is a final judgment, order or decision.

Defendant argued that the imposition of imprisonment after violation of probation is the final judgment, order or decision. Defendant refers to People v. Fisher, 237 Mich. 504, 506, 212 N.W. 70 (1927). We quote therefrom as follows:

'. . . Under the statute, an order of probation is discretionary, tentative in nature and in no sense a final disposition, for power to sentence, in case of breach, is expressly reserved by the very law itself.

'An ultimate or final judgment is not reached in a criminal case, following conviction, until the court pronounces a sentence, which leaves nothing to be done but enforcement. In the case at bar, the order of probation was within the letter of the law, held sentence in abeyance, and defendant's violation of the terms and conditions imposed called for revocation of the order and exercise of the power of final judgment.'

The prosecution, on the other hand, argued that the order imposing probation is the final judgment, relying on Calhoun v. Macomb Circuit Judge, 15 Mich.App. 416, 422--423, 166 N.W.2d 657, 661 (1968). We quote from that decision as follows:

'Michigan cases like People v. Fisher (1927), 237 Mich. 504, 212 N.W. 70, and People v. Good (1938), 287 Mich. 110, 282 N.W. 920, contain language, written in another context, that an order of probation is not a sentence nor a final judgment. However, now that a constitutional right of appeal is involved and because a person placed on probation stands 'convicted' and suffers shame and other incidental consequences of that fact and always loses liberty and may be imprisoned (up to 6 months in jail or 1 year in camp), fined, required to pay restitution and costs and meet other conditions, we are persuaded by the reasoning of Korematsu and Nordstrom, supra, that under the Michigan statutes and court rules, the time for appeal as of right to review a criminal conviction ends sixty days after the conviction is first executed by a...