People v. Ritter

• Decision Date: 08 January 1991
• Docket Number: Docket No. 116685
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joel James RITTER, Defendant-Appellant. 186 Mich.App. 701, 464 N.W.2d 919
• Court: Court of Appeal of Michigan — District of US

Page 919

464 N.W.2d 919

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joel James RITTER, Defendant-Appellant.

Docket No. 116685.

186 Mich.App. 701, 464 N.W.2d 919

Court of Appeals of Michigan.

Submitted June 5, 1990, at Lansing.

Decided Jan. 8, 1991, at 9:30 a.m.

Released for Publication Feb. 11, 1991.

[186 MICHAPP 703] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Norman W. Donker, Pros. Atty., and John K. Bunce, Chief Asst. Pros. Atty., for People.

Jeanice Dagher-Margosian, Ann Arbor, for defendant.

Before SAWYER, P.J., and MICHAEL J. KELLY and MURPHY, JJ.

MURPHY, Judge.

Defendant appeals as of right from his conviction of probation violation, M.C.L. Sec. 771.1 et seq.; M.S.A. Sec. 28.1131 et seq. As a result of this conviction, the court revoked defendant's probation for his July 9, 1982, conviction, following a guilty plea, of unlawfully driving away an automobile, M.C.L. Sec. 750.413; M.S.A. Sec. 28.645, and sentenced [186 MICHAPP 704] him to a prison term of thirty to sixty months, with credit for 267 days served. We affirm.

On August 17, 1982, defendant was sentenced to 180 days in jail, three years' probation, and costs after pleading guilty to the charge of unlawfully driving away an automobile. On July 31, 1985, defendant pled guilty of a violation of an amended order of probation and, on August 28, 1985, his probation was extended for an additional two years, until August 13, 1987. Defendant also served an additional 130 days in jail.

On January 30, 1987, a petition and bench warrant for defendant's arrest were issued by the sentencing court. The petition alleged that defendant had violated the terms of his probation by failing to report to his probation officer in November and December 1986 and by failing to pay the court costs, attorney fees, and restitution previously ordered.

Defendant left the State of Michigan in July 1987 before his term of probation expired on August 13, 1987. On November 13, 1987, defendant was convicted of grand larceny in Charleston County, South Carolina. Defendant served eighty days in jail as a result of that conviction and was sentenced to one year of probation. Defendant apparently returned to Michigan some time in 1988, after serving the jail sentence, but before his probation in South Carolina was terminated.

On October 26, 1988, an amended petition and bench warrant were filed. The amended petition alleged the two counts of probation violation contained in the original petition, as well as two additional counts which charged that defendant was outside the State of Michigan on November 13, 1987, and that he was convicted of a felony in another state on that same date. Defendant was arraigned before the sentencing court on the four [186 MICHAPP 705] counts of probation violation on the same day the amended petition was filed.

After a hearing on December 6, 1988, the court found defendant guilty of all counts of probation violation. On January 6, 1989, the court revoked defendant's probation and sentenced him to prison for the underlying conviction.

On appeal, defendant contends that his sentence must be vacated because the sentencing court lacked jurisdiction to revoke his probation and, consequently, to impose sentence. According to defendant, when his probation term expired on August 13, 1987, the sentencing court lost its power to revoke his probation on the basis of the October 26, 1988, amended petition. We disagree.

M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134 provides in pertinent part:

It is the intent of the legislature that the granting of probation shall be a matter of grace conferring no vested right to its continuance. If during the period of probation it appears to the sentencing court's satisfaction that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke probation. All probation orders shall be revocable in any manner which the court which imposed probation shall consider applicable either for a violation or attempted violation of a condition of probation or for any other type of antisocial conduct or action on the part of the probationer which shall satisfy the court that revocation is proper in the public interest. [Emphasis supplied.]

Revocation of probation is not a part of a criminal prosecution. It deprives the defendant of only conditional liberty which is properly dependent on observance of the terms of the probation order, rather than the absolute liberty to which every [186 MICHAPP 706] citizen is entitled. The defendant is a probationer only because he has been convicted of a crime. He is not entitled to the full range of due process rights associated with a criminal trial. Due process requires only that the revocation proceedings be conducted in a fundamentally fair manner. Gagnon v. Scarpelli, 411 U.S. 778, 781, 789, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599-2600, 33 L.Ed.2d 484 (1972); People v. Gladdis, 77 Mich.App. 91, 96, 257 N.W.2d 749 (1977). The decision to revoke probation is a matter within the sentencing court's discretion. People v. Marks, 340 Mich. 495, 499-501, 65 N.W.2d 698 (1954).

The original petition and bench warrant against defendant alleging violation of the terms of his probation were issued by the sentencing court on January 30, 1987, more than seven months before defendant's probation expired. Michigan courts have traditionally held that the sentencing court retains jurisdiction to revoke a defendant's probation if probation revocation proceedings are commenced within the probation period and are pending when it expires. People v. Hodges, 231 Mich. 656, 204 N.W. 801 (1925); People v. Wakefield, 46 Mich.App. 97, 207 N.W.2d 461 (1973).

Nevertheless, defendant urges us to construe M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134 as limiting the time in which the sentencing court has power to revoke probation to the maximum five-year probation period authorized by M.C.L. Sec. 771.2(1); M.S.A. Sec. 28.1132(1). Defendant argues that because the statute does not expressly provide for tolling of the period of probation upon violation or for revocation after the probation period expires, all monitoring and management of a defendant is confined to the statutory five-year period. Accordingly, defendant concludes that the court had no power to [186 MICHAPP 707] revoke his probation after the maximum five-year period expired on August 13, 1988. Again, we disagree.

If adopted, defendant's interpretation of the relevant statute can only result in the absurd consequence that any defendant who violates the terms of his probation may do so with impunity so long as he manages to evade apprehension until the maximum statutory period of probation expires. We cannot conceive that the Legislature intended such a result and will not construe M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134 to require it. We must construe the statute sensibly in order to avoid absurd or unjust results. People v. Meadows, 175 Mich.App. 355, 437 N.W.2d 405 (1989); People v. Otis Adams, 34 Mich.App. 546, 555 192 N.W.2d 19 (1971). ¹

Rather, we adopt a construction of the statute which best harmonizes the overall context of the probation statutes and the end sought to be achieved. People v. Gilbert, 88 Mich.App. 764, 279 N.W.2d 546 (1979). A convicted defendant has no vested right in the continuance of his probation if he violates its conditions. M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134; Marks, supra, 340 Mich. at 500, 65 N.W.2d 698. The probation statutes [186 MICHAPP 708] confer upon the sentencing court a broad range of discretionary power in handling all aspects of the probationary process. Defendant presents no persuasive reason for limiting the court's discretion in the area of probation revocation, nor do we discern such a reason. Therefore, we conclude that M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134 must be construed to authorize the sentencing court to revoke a defendant's probation, limited only by the requirement that the decision to revoke be based on violations which occur during the probationary period.

Our conclusion is reinforced by MCR 6.445(A), which authorizes the sentencing court to issue a summons to appear or an arrest warrant upon "finding probable cause to believe that a probationer has violated a condition of probation." Thus, we may logically construe the statutory phrase "[i]f during the period of probation it appears to the sentencing court's satisfaction" to require only that during the probation period the court find that probable cause exists to believe that the defendant has violated his probation in order to justify issuance of a petition to revoke probation and a warrant for the defendant's arrest. As discussed above, a petition was filed against defendant on January 30, 1987, for violations of the probation order which occurred in November and December 1986. Therefore, we conclude that the trial court had jurisdiction to revoke defendant's probation in October 1988 despite the fact that his probation had expired on August 13, 1987. ²

[186 MICHAPP 709] Furthermore, there is not, as defendant suggests, a requirement that the warrant be executed, in other words, that a defendant receive notice of the revocation proceedings, before the period of probation expires in order for the court to retain jurisdiction. This Court has required only that the warrant be executed with reasonable diligence after issuance. People v. Hanson, 178 Mich.App. 507, 444 N.W.2d 175 (1989); People v. Diamond, 59 Mich.App. 581, 585-587, 229 N.W.2d 857 (1975), aff'd after remand 70 Mich.App. 512, 245 N.W.2d 809 (1976). Obviously, the question of reasonableness depends on the circumstances of the case. In the present case, because defendant makes no claim that the authorities were not diligent in executing the warrant, we need not make a finding with regard to this...