People v. Tebedo, Docket No. 48534

• Decision Date: 17 June 1981
• Docket Number: Docket No. 48534
• Citation: 309 N.W.2d 250,107 Mich.App. 316
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary M. TEBEDO, Defendant-Appellant. 107 Mich.App. 316, 309 N.W.2d 250
• Court: Court of Appeal of Michigan — District of US

Page 250

309 N.W.2d 250

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary M. TEBEDO, Defendant-Appellant.

Docket No. 48534.

107 Mich.App. 316, 309 N.W.2d 250

Court of Appeals of Michigan.

June 17, 1981.

[107 MICHAPP 318] Donald A. Kuebler, Flint, for plaintiff-appellee.

Terrance P. Sheehan, Flint, for defendant-appellant.

Before DANHOF, C. J., and MAHER and BEASLEY, JJ.

[107 MICHAPP 319] PER CURIAM.

On December 17, 1973, defendant pled guilty to a charge of assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284. He was subsequently sentenced to three years probation, with the first year to be spent in the county jail. While on probation, defendant was charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He was convicted at a jury trial and sentenced to a prison term of from 30 to 40 years. After the armed robbery conviction, defendant was charged with violating his probation. Defendant was charged with violation of the statutory term prohibiting him from violating any criminal law of the State of Michigan. The formal charges stated both that defendant had committed the armed robbery and had been convicted thereof. On April 27, 1976, defendant was found in violation of his probation, based solely on his admission that he had been convicted of the armed robbery charge. Defendant did not admit to having been involved in an armed robbery nor were any witnesses presented to substantiate the charge. The trial court then revoked defendant's probation and sentenced him to a prison term of from 261/2 to 40 years on the assault with intent to rob while armed conviction.

Meanwhile, defendant appealed his armed robbery conviction and this Court reversed, holding that certain statements made by the defendant should have been suppressed as the fruits of an illegal arrest. People v. Tebedo, 81 Mich.App. 535, 265 N.W.2d 406 (1978). The case was remanded for a new trial which has been adjourned on several occasions pending the outcome of the instant appeal. As a result of the reversal of his armed robbery conviction defendant moved to set aside his guilty plea to the probation violation charge. [107 MICHAPP 320] This motion was denied and defendant now appeals by leave granted on June 9, 1980.

On appeal, defendant argues that the trial court erred in refusing to set aside the finding that he had violated his probation where the conviction on which that finding was based was subsequently reversed. This question has not been extensively discussed in this state. People v. Biondo, 76 Mich.App. 155, 256 N.W.2d 60 (1977), lv. den. 402 Mich. 835 (1977), appears factually similar. In Biondo, defendant was convicted of breaking and entering a business establishment while on probation from a prior conviction. As a result of the breaking and entering conviction, his probation was revoked. Defendant's appeal to this Court involved both the breaking and entering conviction and the probation revocation. Discussing the breaking and entering conviction first, the Court reversed on the basis of improper prosecutorial argument. The Court then added, without additional discussion: "The reversal of the breaking and entering conviction of necessity means that the resulting probation violation conviction is set aside". Id., 160.

Biondo appears to stand for the proposition that when a defendant is found in violation of his probation on the basis of a conviction for a substantive criminal offense and that conviction is subsequently reversed, the defendant is entitled to have the probation revocation reversed as well. Analysis of other probation revocation cases reveals, however, that this is not always the case. The standard of proof in a probation revocation hearing is less than in a regular criminal trial. When revocation is sought on the basis of a subsequent violation of the criminal law, there must be proof sufficient to allow the court to find by the preponderance of the evidence that defendant committed[107 MICHAPP 321] the new offense. People v. Buckner, 103 Mich.App. 301, 302 N.W.2d 848 (1980); People v. Billy Williams, 66 Mich.App. 67, 238 N.W.2d 407 (1975). There must be sufficient proof on each element of the offense. People v. Pippin, 316 Mich. 191, 25 N.W.2d 164 (1946). Because the standard of proof is lower than the reasonable doubt standard employed in a criminal trial, probation may be revoked before the trial on the substantive offense, and a decision to revoke probation will be valid even if the defendant is ultimately acquitted of the substantive crime. People v. Morgan, 85 Mich.App. 353, 271 N.W.2d 233 (1978). See People v. McDonald, 97 Mich.App. 425, 296 N.W.2d 53 (1980); People v. Nesbitt, 86 Mich.App. 128, 136, 272 N.W.2d 210 (1978), and People v. Baines, 83 Mich.App. 570, 269 N.W.2d 228 (1978), lv. den. 408 Mich. 861 (1980). For the same reasons, the subsequent reversal of a conviction on a criminal offense would not require vacation of a probation revocation which was based on that offense if the testimony or the defendant's admissions at the revocation hearing were sufficient to establish by a preponderance of the evidence that the defendant committed the offense.

In the instant case, no testimony was taken to establish the facts underlying the armed robbery charge. Nor did defendant admit to participating in an armed robbery. The only thing defendant admitted was that he had been convicted by a jury of armed robbery. Based on this admission, the trial court revoked defendant's probation "because he was convicted of Armed Robbery on March the 18th, 1976, in Genesee County, Michigan". Certainly, probation may be revoked on the basis of the fact that a defendant has been convicted of a subsequent criminal offense. Evidence of the conviction[107 MICHAPP 322] actually supplies greater proof...