State v. Devoe, 2788

Citation560 P.2d 12
Decision Date16 February 1977
Docket NumberNo. 2788,2788
PartiesSTATE of Alaska, Appellant, v. Leslie DEVOE, Appellee.
CourtAlaska Supreme Court

Jane F. Kauvar, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellant.

Marlin D. Smith, Johnson, Christenson, Shamberg & Link, Inc., Fairbanks, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

OPINION

BURKE, Justice.

Appellee Leslie DeVoe is currently on probation, under the supervision of the Department of Health and Social Services, following his conviction on a charge of attempted robbery. By a judgment entered on December 20, 1974, DeVoe was sentenced to three and one-half years of imprisonment, with two and one-half years suspended, and placed on probation during such period of suspension. One of the conditions of DeVoe's probation was that he obey all municipal, state, and federal laws. 1

On November 12, 1975, the State of Alaska filed a petition to revoke DeVoe's probation. The petition alleged, among other things, that while on probation DeVoe had violated the laws of the State of Alaska by commiting the crime of receiving and concealing stolen property. 2

A hearing on the petition was held in the superior court on December 4, 1975. At the hearing the state presented evidence in support of the petition. At the conclusion of the hearing the judge, the Honorable Waren W. Taylor, announced that he would withhold any decision on the matter, anticipating that there would be a jury trial on the charge of receiving and concealing stolen property.

On December 18, 1975, the State of Alaska requested that Judge Taylor rule on the merits of the petition, after informing him that it had decided not to seek a separate indictment on the new charge. Thereafter, on December 26, 1975, Judge Taylor entered an order denying the petition. The record makes it clear that the sole basis for the denial was the fact that there had been no indictment and conviction for the additional crime of receiving and concealing stolen property. This appeal, by the State, followed.

I.

The first question that we must consider is whether the state has the right to appeal in this case. We conclude that it does.

Generally, an appeal to this court is a matter of right. This is so by virtue of the provisions of AS 22.05.010. 3 The legislature however, in enacting that statute, saw fit to limit the state's right to appeal in criminal cases. 4 In such cases, apart from its right to appeal a sentence on the ground that it is too lenient, 5 the state can appeal only to test the sufficiency of the indictment or information. The state's right to appeal in this case therefore depends upon the characterization given to the proceedings in the court below.

In Trumbly v. State, 515 P.2d 707, 709 (Alaska 1970), we clearly stated our view that '(a) probation revocation hearing is not a criminal proceeding.' 6 Although recognizing that such proceedings are necessarily an outgrowth of a criminal case, 7 we have never been persuaded to modify this view 8 and will not do so now. Therefore, we hold that the state has the right to appeal in this case. Since the order appealed from was not entered in a criminal case, the statutory limitation on the state's right of appeal is not applicable. 9

II.

In reaching his decision Judge Taylor relied heavily on the suggestion contained in Section 5.3 of the American Bar Association Standards Relating to Probation (Approved Draft, 1970). That section provides in part:

A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge.

In his memorandum of decision Judge Taylor said:

Where charges have been dismissed or effectively withdrawn before trial, as in this case, the court is convinced that to proceed further on the same charges of probation violation could minimize the usual constitutional safeguards attendant in jury trials on the merits of such charges. It may result in relaxation of the rules of evidence and a lesser burden of proof and it would result in the absence of a jury of the defendant's peers. The court concludes further consideration of the charges which were pending against the defendant would result in undue unfairness and would not serve the ends of justice. Therefore, the petition is denied.

These views, while certainly having respectable support, are contrary to the well established law of Alaska. In Snyder v. State, 496 P.2d 62 (Alaska 1972), we were confronted with essentially the same issue as presented here. In that case appellant's probation was revoked after the superior court found that he had committed an unprovoked assault and battery while on probation. There, a petition to revoke probation was filed alleging the new criminal act, but no separate charges were brought by the state. On appeal, Snyder asserted that it was an abuse of the trial court's discretion to revoke his probation for the commission of an additional crime, in the absence of formal charges and a conviction. Noting that the overwhelming weight of authority is to the contrary, we rejected his argument, saying: 'We decline to adopt such a unique position.' 10 We chose, instead, to adopt the standard first announced in territorial days in United States v. Feller, 156 F.Supp. 107, 17 Alaska 417 (1957), where the court said:

We are confronted with a further question herein. Where the grounds for the revocation of the sentence is based upon the violation of conditions of the probation which amount, in themselves, to a crime, is it necessary before a hearing on the revocation of the suspended sentence may be held that the probationer must be tried and convicted of the crime alleged? Summary hearings upon the revocation of a suspended sentence have been upheld. What is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the Court has not been abused; and that the facts revealed at the hearing satisfy the Court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice. (Citations omitted)

The trial judge who imposed the sentence has certainly broad discretionary powers to revoke probation, and the probationer may not complain if he has been given ample opportunity to appear before the Court imposing the sentence, and he has been permitted to combat the accusation or charges against him and there has been no abuse of discretion on the part of the Court. (Citations omitted). 11

Today, we reaffirm the views expressed in Snyder v. State and hold that Judge Taylor erred in ruling that conviction was required before DeVoe's probation could be revoked. The law of Alaska contains no such requirement. We are further compelled to hold that Judge Taylor's denial of the petition, solely because the state had elected not to charge and convict DeVoe in a separate criminal proceedings, was a clear abuse of discretion.

Our decision should not be taken as an expression of any opinion on our part that actual revocation of DeVoe's probation is required. It simply reflects our conclusion that the trial judge imposed an improper burden on the state. It remains for the superior court to decide whether the evidence establishes that DeVoe violated the conditions of his probation and, if so, the appropriate disposition. 12

Conformity to reasonable and lawful conditions of probation is, of course, a prerequisite to the continuation of probationary status. 13 Probation can be revoked only for good cause. 14 In Trumbly v. State, 515 P.2d 707 (Alaska 1973) we held that this

. . . requires the trial judge to find that continuation of probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation. 15

However, we further stated:

Revocation should follow violation of a condition of probation when that violation indicates that the corrective aims of probation cannot be achieved. (footnote omitted) 16

REVERSED and REMANDED for further proceedings in conformity with this opinion.

RABINOWITZ, Justice, concurring.

Although I am in agreement with the court's conclusion that a probationer's conditional liberty may be revoked for criminal conduct without the necessity of formal charges an conviction, I think a facet of the superior court's ruling in the case at bar is deserving of discussion.

The state has significant interests in pursuing probation revocation proceedings either separately or in addition to separate criminal proceedings. 1 Nevertheless, in circumstances in which the state makes the decision to hold a revocation hearing prior to initiation of criminal proceedings, the possibility of a future criminal trial has an important impact upon the probationer's decision whether or not to testify and whether or not to present a defense at the revocation proceeding. Consideration of such factors led the American Bar Association to recommend that:

A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge. However, upon a showing of probable cause that another crime has been committed by the probationer, the probation court should have discretionary authority to detain the probationer without bail pending a determination of the new criminal charge. 2

This position has been adopted by the American Law Institute 3 and, at least arguably, by several state legislatures. 4

When the probation revocation proceeding is based upon alleged criminal conduct as to which the probationer's innocence or guilt remains to be adjudicated in a criminal proceeding, there is the possibility of dilution of the probationer's privilege against self-incrimination, since at the criminal trial the prosecutor may be able to use evidence which the probationer presented in the probation revocation proceeding. Thus,...

To continue reading

Request your trial
2 cases
  • Commonwealth v. Negron
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 6, 2004
    ...proceedings. 3. Other jurisdictions permit the State to appeal from an adverse probation revocation decision, see State v. DeVoe, 560 P.2d 12, 13-15 (Alaska 1977); State v. Huckeba, 258 Ga. App. 627, 632-635 (2002). Contrast State v. Blackman, 488 So. 2d 644 (Fla. Dist. Ct. App. 1986) (neit......
  • Esguerra v. State
    • United States
    • Alaska Court of Appeals
    • August 18, 2023
    ...solution.[2] Several years later, in McCracken v. Corey, the supreme court had occasion to offer a solution to the problem identified by the DeVoe concurrence. McCracken, the defendant faced a parole revocation and a criminal charge based on the same alleged conduct.[3] The supreme court no......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT