People v. Varner
| Decision Date | 26 March 1973 |
| Docket Number | No. 25197,25197 |
| Citation | 508 P.2d 390,181 Colo. 146 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Francis VARNER, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly David A. Sorenson, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant appeals from an order revoking his probation. He contends that revocation of his probation was without notice and prior hearing, and therefore violated his constitutional right to due process and equal protection of the law. We affirm the order of the trial court.
On June 20, 1970, defendant entered a plea of nolo contendere to a charge of second-degree burglary and was granted probation for a period of three years. Subsequently, a petition for revocation of his probation was filed on the grounds that defendant had violated his probation, could not be apprehended in the state of Colorado and was presently in the state of Idaho. On February 22, 1971, an order was entered by the trial court forthwith revoking defendant's probation, authorizing the issuance of a warrant for the arrest and return of the defendant to Colorado. Defendant waived extradition and was returned to Colorado. Thereafter, on March 8, 1971, the district court held a hearing on revocation of defendant's probation. Defendant was represented by counsel at that hearing.
The undisputed testimony indicated that, previous to the Idaho violation, on November 25, 1970, defendant had left the state of Colorado without permission from his probation officer and in violation of his probation. Upon his return to Colorado, he was warned that future unauthorized trips would jeopardize his right to remain on probation. Thereafter, on February 10, 1971, the probation officer received a telephone call from the sheriff's department of Boise, Idaho, informing him that the defendant had been taken into custody in that state and had in his possession illicit drugs. The probation officer then filed the petition for revocation pursuant to which the court order was entered.
The defendant admitted at the hearing that he had gone to Idaho in violation of his probation and had been in possession of the illegal drugs. The court then revoked defendant's probation and sentenced him to the Colorado state penitentiary for a term of not less than three nor more than five years.
Defendant contends that the revocation of his probation as an absconder on February 22, 1971, without a hearing or any prior notice, violated his constitutional rights to due process and equal protection of the laws. In support of his argument he cites Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, in which the United States Supreme Court recently held that due process requires a defendant be given a hearing prior to revocation of parole, at which he shall be allowed to be heard in person, present evidence in his own behalf, and confront and examine adverse witnesses.
We agree with defendant that although Morrissey, supra, involved the revocation of parole, the principles it announced apply equally to the revocation of probation. See: People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313. We conclude, however, that he can claim no protection under Morrissey, since that decision was announced subsequent to the revocation of his probation here, and it applies only prospectively and not retrospectively. In Morrissey, the Supreme Court specifically held:
* * *' (Emphasis added.)
See also: Parker v. Cardwell, 32 Ohio App.2d 193, 289 N.E.2d 382; Rogers v Hurley, 486 S.W.2d 696 (Ky.1972); People v. Vickers, Supra.
Furthermore, it is clear that under the law applicable to defendant at the time his probation was revoked no constitutional...
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Wilson v. People
...allowed. Cf. Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. at 2604 (relating to parole revocation proceedings); People v. Varner, 181 Colo. 146, 149, 508 P.2d 390, 391 (1973) (the requirements set out in Morrissey v. Brewer apply equally to the revocation of probation; the probationer shal......
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Section 25 DUE PROCESS OF LAW.
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Chapter 8 - § 8.2 • MODIFICATION AND REVOCATION PROCEEDINGS
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