Scruggs, Matter of, Docket No. 71254

• Decision Date: 12 July 1984
• Docket Number: Docket No. 71254
• Citation: 350 N.W.2d 916,134 Mich.App. 617
• Parties: In the Matter of Sharman SCRUGGS, a Minor. STATE of Michigan, Petitioner-Appellee, v. Sharman SCRUGGS, Respondent-Appellant. 134 Mich.App. 617, 350 N.W.2d 916
• Court: Court of Appeal of Michigan — District of US

Page 916

350 N.W.2d 916

In the Matter of Sharman SCRUGGS, a Minor.

STATE of Michigan, Petitioner-Appellee, v. Sharman SCRUGGS, Respondent-Appellant.

Docket No. 71254.

134 Mich.App. 617, 350 N.W.2d 916

Court of Appeals of Michigan.

Submitted Jan. 20, 1984.

Decided May 14, 1984.

Released for Publication July 12, 1984.

[134 MICHAPP 617] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief Appellate Asst. Pros. Atty., Civil and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for petitioner-appellee.

[134 MICHAPP 618] Patricia Slomski, Detroit, for respondent-appellant.

Before SHEPHERD, P.J., and J.H. GILLIS and WARSHAWSKY, ^* JJ.

SHEPHERD, Presiding Judge.

Appellant was placed on probation by the juvenile court on July 29, 1982, after being found to have committed larceny from a person, M.C.L. Sec. 750.357; M.S.A. Sec. 28.589. On April 26, 1983, appellant's probation was revoked upon a finding that he had committed the offense of felonious assault, and he was committed to the custody of the state Department of Social Services. Appellant now appeals his probation revocation as of right.

Appellant first argues that he was entitled to an adjudicative hearing or trial on the issue of his guilt or innocence, a right he was denied. Furthermore, argues appellant, a juvenile has a right to a jury trial in a probation revocation proceeding. We find our resolution of the first issue to be determinative of the second, and affirm the juvenile court's revocation of appellant's probation.

Proceedings in juvenile court are of two general types: adjudicative and dispositional. JCR 1969, 8.1 and 8.3 describe the two types of proceedings.

"(a) Adjudicative Phase. The adjudicative phase determines whether the child comes within the court's jurisdiction under MCLA 712A.1 et seq.; MSA 27.3178(598.1) et seq., as alleged in the petition. There is a right to jury trial.

"(b) Dispositional Phase. The dispositional phase determines measures to be taken by the court with respect to the child and adults properly within its jurisdiction if the court has determined at the adjudicative phase that the child comes within the statute. There is no right to jury trial." JCR 8.1.

[134 MICHAPP 619] The admissibility of evidence and the standard of proof vary according to the type of proceeding involved.

"Evidence.

"(a) Adjudicative Phase. Absent a valid plea in confession, only competent, relevant, and material evidence is admissible at the adjudicative phase. In a case involving an offense by a child, the rules of evidence for a criminal proceeding and the standard of proof beyond a reasonable doubt apply. In a case involving an offense against a child, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of the evidence apply.

"(b) Dispositional Phase. In the dispositional phase only relevant and material evidence may be considered. Clear and convincing evidence is required to terminate parental rights." JCR 8.3.

Appellant argues that, in a proceeding charging probation violation, a juvenile is entitled to both phases of proceedings: an adjudicative hearing on the issue of guilt and a dispositional hearing for sentencing. This issue is not resolved in the juvenile code. The only reference to a petition for revocation of probation is contained in the juvenile code at M.C.L. Sec. 712A.15; M.S.A. Sec. 27.3178(598.15), a reference which provides no guidance with regard to the nature of the proceeding itself.

JCR 9.2, however, provides as follows:

".2 Procedures. In a hearing on a probation violation * * * the same procedure as for an original petition must be followed, except that there is no right to jury trial."

M.C.L. Sec. 712A.21; M.S.A. Sec. 27.3178(598.21), while it makes no mention of probation revocation, provides for a rehearing

[134 MICHAPP 620] "At any time while the child is under the jurisdiction of the court * * * upon all matters coming within the provisions of this chapter * * * The rehearing shall be conducted in accordance with the provisions of this chapter relative to the conduct of original hearings. At any time the court may enter an order for supplemental disposition as long as the child remains under the jurisdiction of the court."

While not relying on the language of M.C.L. Sec. 712A.21, appellant interprets the language of JCR 9.2, calling for the same procedure in a hearing on probation violation as is employed in an original petition, to mean that probation revocation hearings are to be divided into adjudicative and dispositional phases. In support of his position, appellant points to the commentary to JCR 9.2 contained in the Michigan Juvenile Court Procedure Sourcebook (1970 ed) pp 30-31. The notes to the rule read in part:

"Rule 9.2 is included as a means of clarifying an area of question with regard to procedures followed upon violation of probation or 'parole'. While 'revocation of probation' is referred to in the Code (Sec. 15) no procedure is specified. The summary procedure in the Criminal Code (MCL 48 771.4; MSA 28.1134) was considered for incorporation by reference provided an appropriate order establishing authority to so proceed had been originally entered. However, this was felt by the committee too loose a practice, and procedure as in the original proceedings is provided, excepting only the right to a jury."

Since the drafters of the rule rejected the standards for criminal probation revocation hearings, appellant argues, they must have intended that juveniles be entitled to adjudicative hearings for violation of probation, with all protections inherent[134 MICHAPP 621] therein other than trial by jury, including proof beyond a reasonable doubt and application of the more restrictive rules of evidence. Appellant supports this interpretation by arguing that while in adult probation revocation cases a defendant can only be sentenced in accordance with the original offense, in juvenile cases a minor may receive the most restrictive disposition possible without the safeguards included in a trial. This, argues appellant, denies juveniles due process of law. We cannot agree.

At the adjudicative phase, the juvenile court determines whether a child comes within the jurisdiction of the court. Clearly, where a juvenile is before the court for having violated terms of the probation upon which he was placed by that same court, jurisdiction has already been determined and the adjudicative phase is no longer necessary. In the Matter of Oakes, 53 Mich.App. 629, 632, 220 N.W.2d 188 (1974). While we agree that juveniles are entitled to due process of law, see In Re Winship,...