State v. Allen
| Decision Date | 22 November 1967 |
| Citation | 235 A.2d 529 |
| Parties | STATE of Maine v. Charles Rodney ALLEN. |
| Court | Maine Supreme Court |
Warren E. Winslow, Asst. County Atty., Portland, for appellant.
Franklin F. Stearns, Jr., Portland, for appellee.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.
On appeal from revocation of probation.
Appellant was found guilty of aggravated assault at the September Term 1965 of the Superior Court for Cumberland County, was sentenced to a jail term of 6 months, which sentence was suspended and probation was extended for a period of two years. The receipt in open court of the written statement of conditions of probation was acknowledged by appellant, which conditions requiring 'strict observance,' were in the usual form, including maintenance of 'good behavior,' and 'abstinence' from the use of intoxicants.
At the March Term 1966, the Probation and Parole Board filed a motion dated February 28, 1966, under the provisions of 34 M.R.S.A. § 1633, for revocation of the probation, alleging reasonable belief that the appellant had violated the conditions of his probation and complaining, in two counts, of violation by disorderly conduct at two specified places and dates. 1 The court appointed counsel to represent him.
The matter was heard March 3, 1966, with an Assistant County Attorney for the State, and testimony recorded. A witness called by the Probation Department in support of the first count was excused as reluctant, and the allegation was not established.
Count two, upon which violation was found, appellant offering no evidence, developed the following undisputed facts. On December 12, 1965 at Pleasant Mountain Ski Development Corporation premises (Lodge), where a 'company' party was being held, appellant and one M had differences, the detail of which is unknown, but there is evidence to justify a finding that M's wife or a friend was involved and that following her outcry, the men confronted one another. As a result, M either pushed or struck appellant so that he 'fell to the floor.' The incident attracted the attention of the manager of the premises and another employee, both of whom went to the scene. Appellant came off the floor in a combative mood, refused to leave the lodge at the request of the manager, and violently resisted his expulsion, kicking, striking and using obscene language, during which the Lodge employee was kicked. There was evidence that the appellant had been drinking.
Upon facts found and recorded by the presiding Justice, a violation of probation was ruled and it was ordered that probationer execute the original sentence.
The appeal claims error in the factual finding of violation.
In brief and argument, although not recorded as a point of appeal, appellant urged that the accusations expressed in the State's motion for revocation of probation and the resultant hearing thereon and proof thereof failed to meet constitutional requirements. Appellant equates the accusation of violation with a criminal charge. Inasmuch as the State responded to this issue, and this is the first case coming to us grounded upon revocation of probation in which the issue is raised, we shall consider the contentions.
The power to suspend execution of sentence imposed upon one convicted of a criminal offense, to grant probation and to subsequently revoke it, is largely a statutory matter, state or federal. Our 34 M.R.S.A. § 1631 provides for suspension of execution of sentence and extension of probation. Section 1632 provides that such probationer remains under the jurisdiction of the court and is committed to the custody and control of the Probation and Parole Board. Each probation officer has authority to arrest and hold the probationer in custody for a reasonable time in order to file a motion under the following section. Section 1633 reads in pertinent part as follows:
The extent to which a hearing is a procedural step requisite to a valid revocation of such conditional liberty, is a question of statutory construction.
Among the views supporting the conclusion that there is no constitutional right to (notice and) hearing before revocation of probation or parole, 2 our view as applied to revocation of parole has been expressed in Mottram v. State of Maine et al., Me., 232 A.2d 809. The hearing which 'due process' requires under a motion for revocation of probation is that required by Section 1633. The statute construed in Mottram provided that the Parole Board 34 M.R.S.A. § 1675. Here the statute to be construed provides that 'after hearing' the court may revoke probation. The philosophy of probation and parole is the same. In that respect the rationale of Mottram governs.
The violation of probationary conditions is not an offense in itself. The proceeding is not a criminal proceeding. 21 Am.Jur., 2d § 568. The purpose of the hearing is to seek a determination of whether the conditional liberty granted by probation should be terminated or continued. The termination of probation results in the execution of a subsisting sentence in confinement.
At this point as between parole and probation procedure there is one distinction. The Parole Board is an administrative body under the Executive Branch of the government and revocation of parole is an administrative function, Mottram at 232 A.2d (15-16) page 817, exercised by a balance of society interest on the one hand and possibility of rehabilitation of the parolee on the other, from which no appeal is provided. The parolee has left the supervision of the judicial branch of our government. The probationer has remained under the supervision of the court system and the revocation is a judicial function exercised in terms of judicial discretion 3 based upon weighing the same interests, which discretion is reversible only upon clear showing of abuse. Young v. Carignan, 152 Me. 332, 337, 129 A.2d 216.
While we have never been called upon to declare that an indigent probationer, when confronted with complaint for violation (sentence having been imposed and suspended), 4 is entitled to court...
To continue reading
Request your trial
-
Dow v. State
...his awareness that the Law Court did review orders of revocation of probation through the process of direct appeal. State v. Allen, 1967, Me., 235 A.2d 529; State v. Oliver, 1968, Me., 247 A.2d 122; State v. Smith, 1969, Me., 256 A.2d 580 and State v. Russo, 1969, Me., 260 A.2d 140. But he ......
-
State v. Caron
...of a criminal offense, to grant probation and subsequently to revoke it after hearing is a statutory matter. See, State v. Allen, 1967, Me., 235 A.2d 529, 530, 531. It is recognized that the statutory proceeding is 'sui generis-judicial rather than administrative and by no means inconsequen......
-
State v. Ouellette
...may prevent an injury from being done by all proper means, but, when done, you cannot take redress into your own hands.” State v. Allen, 235 A.2d 529, 532 (Me.1967) (quotation marks omitted). 3. If only nondeadly force self-defense is generated by the evidence, but the jurors find that the ......
-
Skidgell v. State
...called upon to examine our probation statute and the procedures followed in several hearings on revocation of probation. In State v. Allen, Me., 235 A.2d 529 (1967); State v. Oliver, Me., 247 A.2d 122 (1968); and State v. Russo, Me., 260 A.2d 140 (1969) we recognized a probationer's right t......