State v. Baylis
| Decision Date | 03 August 1976 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 27 Ariz.App. 222,553 P.2d 675 |
| Parties | STATE of Arizona, Appellee, v. Vince Tyrone BAYLIS, Appellant. 1352. |
| Court | Arizona Court of Appeals |
The singular issue raised on this appeal from revocation of appellant's probation is whether appellant received a proper hearing establishing a violation of the probation.
In the original action, appellant pled guilty to theft of a motor vehicle, a felony. On July 1, 1974, the trial court suspended the imposition of sentence for three years. On April 14, 1975, a petition to revoke appellant's probation was filed. As a result of the petition, appellant was arrested on May 4, 1975. He was arraigned on May 6, and received a purported 'preliminary hearing on revocation of probation' on May 23, at which time he denied that he had violated his probation. No evidence was presented at this hearing to establish the violation. On June 6, a 'final revocation hearing' was held. The state presented testimony by appellant's probation officer that appellant had violated the terms of his probation. On the basis of this testimony, the court found that appellant had violated his probation. The court then immediately held a second hearing and revoked appellant's probation sentencing him to not less than two nor more than four years in the Arizona State Prison.
Appellant correctly contends that under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Settle, 20 Ariz.App. 283, 512 P.2d 46 (1973); and Rule 27.7, Arizona Rules of Criminal Procedure (1973), a probationer is entitled to three judicial proceedings before his probation can be revoked. First, upon a probationer's arrest, he is to be taken without unreasonable delay before a judge who shall advise him of his right to counsel, and inform him that any statement he makes prior to the hearing may be used against him. The judge shall then set the date of the revocation hearing, and make a release determination. Second, a 'violation' hearing is required at which time the probationer shall admit or deny the violation. If he does not admit it, the violation must be established by a preponderance of evidence. Third, he is entitled to a disposition hearing, at which he is allowed to present in mitigation and to confront and cross-examine any adverse witnesses. It is at the conclusion of the third hearing that the judge may revoke, modify or continue probation.
In this case, appellant contends that the second or violation hearing was not properly conducted because no competent evidence was presented to establish the violation. The state responds that because the petition to revoke probation was before the trial court at the May 23 hearing, the court had sufficient evidence to establish the violation, and therefore the hearing was properly conducted.
The state's argument, however, is incorrect for three reasons. First, the allegation in the petition to revoke stated:
'There is probable cause to believe the defendant has violated the following terms and conditions of his probation: Term #1, by failing to appear for arraignment on a Petty Theft charge with a Prior on April 8, 1975; Term #2, by moving to an unknown address without approval or notification of the Adult Probation Department; Term #3, by failing to report in person and in writing as directed; Term #4, by failing to co-operate as directed; Term #6, by failing to remain employed or enrolled as a student as ordered.'
Before probation can be revoked, the state must establish the violation of probation by a Preponderance of evidence. Ariz.R.Crim.P. 27.7(c)(3) (1973 Rules). 1 However, the petition to revoke here only alleged that there was Probable cause to believe that appellant violated probation. Therefore, even assuming that the petition is competent evidence, it does not provide sufficient evidence to establish a violation by a preponderance of evidence.
Second, we do not feel that the petition to revoke in the current case constituted 'reliable hearsay' as defined by State v. Brown, 23 Ariz.App. 225, 532 P.2d 167 (1975). The petition only stated that the probation officer 'is informed and has reason to believe' that the violations existed. There was no indication of the basis for the officer's belief or even that it was based on first hand knowledge. Without some indication of the bais for the information, we cannot say that the petition to revoke was reliable.
In fact, the hearing conducted by the court on June 6 showed that the petition did not contain reliable information. The court found that the state failed to prove that appellant violated terms 1, 4 and 6 as alleged in the petition. Therefore, not only is the petition not reliable on its face, but subsequent testimony showed significant portions of it to be unreliable.
Third, the petition to revoke was never offered or received into evidence. The trial court made no findings as to its reliability or admissibility. In fact, no determination was made that the state had established the violation by a preponderance of the evidence. Therefore, we cannot say that the May 23 hearing satisfied the violation hearing requirements set forth by Gagnon v. Scarpelli, supra and State v. Settle, supra.
However, although the May 23 hearing did not establish a violation and therefore did not satisfy the due process requirements of Gagnon and Settle, we feel that the hearing conducted on June 6 did, and that the errors committed on May 23 were corrected by the later hearing. At the June 6 hearing, the probation officer testified regarding the alleged probation violations and was cross-examined by appellant's counsel. Appellant was given the opportunity to present evidence and to make a statement, but declined to do so. Nor did he request a continuance in order to obtain evidence or claim on appeal that he was prejudiced by the procedure used. On the basis of the probation officer's testimony, the trial court specifically found that appellant had violated his probation.
The trial court then asked both counsel whether there was any legal reason why the proceeding should not go forward. They assured the court that there was none. The court then asked appellant and his counsel whether they had anything to say. Appellant made a brief statement but did not present any evidence. After the statement, the court revoked appellant's probation, and sentenced him to not less than two nor more than four years in the Arizona State Prison.
We must decide whether appellant's constitutional right of due process was violated by the failure of the trial court to conduct the two hearings on separate days. Preliminarily, although the 1975 Rules of Criminal Procedure provide that the third or disposition hearing must be held not less than seven days after the second or violation hearing, the 1973 rules (which were in effect at the time of appellant's hearing) contained no such requirement. Both Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and State v. Settle, supra, expressly stated that the courts did not wish to create inflexible rules.
The California courts have ruled that the violation and disposition hearings...
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