State v. Bonza
| Decision Date | 15 August 1944 |
| Docket Number | 6691 |
| Court | Utah Supreme Court |
| Parties | STATE v. BONZA |
Appeal from District Court, Seventh District, Carbon County; F. W KELLER, Judge.
Abe Bonza was convicted of second-degree burglary, but he was placed on probation. From a judgment revoking the probation and ordering defendant committed to prison, the defendant appeals.
Affirmed.
E LeROY SHIELDS, of Salt Lake City, for appellant.
GROVER A. GILES, Atty. Gen., and HERBERT F. SMART, Asst. Atty. Gen for respondent.
OPINION
Appellant was convicted of second degree burglary in the district court of Carbon County in November, 1941. He was sentenced to serve an indeterminate term in the state prison, but the court suspended the execution of sentence for a period of two years and placed him on probation upon the following conditions: (1) That he make restitution in the sum of $ 125 to the victims of his crime; (2) that he refrain from intoxication; (3) that he sign an agreement with the Adult Probation and Parole Board to cooperate with said board, obey its regulations and also obey the laws of the State and of the United States.
Defendant paid the $ 125 to the victims of his crime, but within the two year probation period an affidavit was filed in the court in which he had been convicted reciting that he had subsequently been convicted of the crime of petit larceny and also had burglarized a certain described building in Tooele County in March, 1943. He was promptly cited into court on an order to show cause why probation should not be canceled and an order of commitment issued. Following a hearing during which he objected to the introduction of evidence, the court found that he had violated the terms of his probation by commission of a burglary subsequent to the date of his conviction. Probation was revoked and he was ordered committed to prison, from which order he appeals.
Defendant's first assignment may be shortly dealt with. He assigns as error the admission in evidence of a form of agreement with the parole board for the reason such form was not competent proof that he ever signed such an agreement. Though it were error to admit such exhibit in evidence, no prejudice to appellant resulted therefrom. His probation was revoked because, as the court found, he committed a burglary during the probationary period, not because he failed to sign or in respects other than the violation of the law failed to comply with such agreement.
Appellant's primary attack on the judgment of revocation is to the effect that the court erred in finding that he violated one of the conditions of probation by commission of another burglary, for the reason that he was not formally charged with such subsequent burglary in a separate proceeding nor found guilty by a jury. He contends that if he had been charged with such crime and acquitted by a jury, no basis could have existed for an order to show cause why probation should not be revoked; and that an adjudication of the claim in this proceeding that he committed another burglary is in effect the denial of a trial by jury. He argues that before he can be adjudged to have committed the subsequent burglary, he must first be formally charged in a separate and independent case. He does not go so far as to urge that if he had violated one of the probation terms or conditions by habitually indulging in intoxicants or for failure to make restitution, he would be entitled to a jury trial nor that the court would be powerless to revoke probation merely because the violation did not happen to constitute an independent criminal offense.
If the position of appellant were tenable, then probation might be revoked for some minor infraction which does not amount to a criminal offense, but if the infraction consisted of a crime for which he might be separately prosecuted, the court would be powerless to revoke probation until defendant were first convicted of such subsequent crime. If he were not prosecuted for such subsequent crime committed in some other district, under the theory of appellant, regardless of the amount of evidence available to secure a conviction, his probation could not be revoked, and since the offense happened to have been committed in another county the district court in which he was convicted and placed on probation would be powerless to act.
Appellant's argument disregards the plain language of the governing statute. 105-36-17, U. C. A. 1943, provides:
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