State v. Bell
| Decision Date | 15 June 1982 |
| Docket Number | No. 14084,14084 |
| Citation | 103 Idaho 255,646 P.2d 1026 |
| Parties | The STATE of Idaho, Plaintiff-Respondent, v. Kevin Earl BELL, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Brent T. Robinson, Rupert, for defendant-appellant.
David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.
This is an appeal from an order revoking probation and committing the appellant to the custody of the state board of correction. The appellant raises three issues on appeal. First, he contends that he was denied his right to procedural due process when the court considered conduct not charged as a violation of his probation, in deciding that the probation should be revoked. Next, he asserts that he was denied his right to effective assistance of counsel at the probation revocation hearing. Finally, he contends that the decision by the trial court to revoke his probation was an abuse of discretion and unwarranted by the factual record. We affirm the order of the district court.
Upon his plea of guilty to the offense of first degree burglary, the appellant was sentenced by the district court to the custody of the state board of correction, for an indeterminate period not to exceed five years. Following a period of retained jurisdiction under I.C. § 19-2601, the court suspended the balance of the sentence and placed the appellant on probation for two years. While on probation, the appellant was brought before the court three times for alleged probation violations. Twice his probation was reinstated. On the second occasion he was warned by the district judge that any further violation could have serious consequences.
The third proceeding-from which he now appeals-was concerned, substantially, with a repetition of the same type of violations considered in the second hearing. It involved allegations that, in contravention of his probation agreement, the appellant changed his residence without notification to or permission from his probation supervisor; that he failed to make periodic reports to the probation office; and that he failed to make personal contacts with his probation supervisor as required by his probation agreement. The report of violation submitted by the probation officer to the district court, in addition to specifying the alleged violations, informed the court that the appellant was being held in the county jail on a charge of driving while under the influence of intoxicating beverage. The report also informed the court that another similar charge was pending in a neighboring county. Neither of these pending charges, however, was specified as a ground for revoking the appellant's probation.
When the appellant appeared in court on this probation violation, the court reviewed the allegations with the appellant, and also discussed the pending DWI charges in detail with him. The appellant admitted he was in violation of his probation. At the conclusion of the hearing the court so found. The court noted that there had been previous violations which the court had not then deemed sufficient to revoke the probation. However, the court concluded on this occasion, that the probation should be revoked. The court then ordered that the appellant serve the balance of the five year sentence earlier imposed.
On appeal, the appellant first contends that the court improperly considered the pending DWI charges as a factor in determining that he was in violation of his probation. The appellant's contention is not supported by the record on appeal. Although in a sense the court "considered" the pending DWI charges by discussing those charges with the appellant in the course of the probation violation hearing, the finding of the court at the conclusion of that hearing, and the subsequent written order revoking the appellant's probation, do not show reliance upon those charges as grounds for revoking the probation.
The instant case is strikingly similar to State v. Mummert, 98 Idaho 452, 566 P.2d 1110 (1977). There the defendant Mummert had been placed on probation for the crime of forgery. One of the requirements of probation was that he comply with the rules of probation prescribed by the Board of Correction. One of those rules prohibited a probationer from either purchasing or operating a motor vehicle without prior permission. Mummert was cited into court upon an order to show cause why he should not be held in violation of his probation. At the hearing, he admitted he had both operated and purchased an automobile during the term of his probation, without permission.
In Mummert, the Supreme Court recognized that probation violation proceedings are concerned with two inquiries: is the probationer in violation of his probation, and if so, should the probation be revoked or continued? The court stated:
It is undisputed that appellant violated a valid condition of his probation when he purchased an automobile without first obtaining written permission. Upon finding that violation, the trial court then had to decide whether to revoke or to continue appellant's probation. By deciding to revoke, the court, in essence, concluded that in appellant's case probation was an ineffective means of rehabilitation and that imprisonment was required both to protect society and to enhance the ultimate rehabilitation of appellant. Appellant's refusal even to attempt compliance with the driving restrictions is indicative of his unwillingness to comply with his probationary conditions. Thus, even though his failure to seek permission before driving could not constitute a probation violation, it would be relevant to the issue of whether probation could be an effective means of rehabilitation in appellant's case....
98 Idaho at 454-455, 566 P.2d at 1112-13.
Particularly pertinent to the instant...
To continue reading
Request your trial
-
State v. Lafferty
...determining whether to revoke or continue the probation. State v. Tucker, 103 Idaho 885, 655 P.2d 92 (Ct.App.1982); State v. Bell, 103 Idaho 255, 646 P.2d 1026 (Ct.App.1982).3 In Oyler, the Idaho Supreme Court held that where the sentencing court finds it impossible for a particular probati......
-
Fouche v. Chrysler Motors Corp.
... ... E.g., Barlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1974). On the present state of the evidence, Fouche has made a factual showing from which legitimate inferences could be drawn that the seat belt and collapsible steering column ... ...
-
State v. Corder
...discretion, on appeal we will not disturb the district court's decision to revoke probation. State v. Case, supra; State v. Bell, 103 Idaho 255, 646 P.2d 1026 (Ct.App.1982). Our review of the record indicates that Corder has repeatedly demonstrated an unwillingness to adhere to the conditio......
-
State v. Hass
...not possibly perform the fundamental conditions of his probation. He contends that such a finding is required by State v. Bell, 103 Idaho 255, 646 P.2d 1026 (Ct.App.1982). We disagree. Our decision in Bell was not intended to create such a requirement. The court is only required under I.C. ......