State v. Ferree

• Decision Date: 29 December 1980
• Docket Number: No. 43323,43323
• Citation: 207 Neb. 593,299 N.W.2d 777
• Parties: STATE of Nebraska, Appellee, v. David Paul FERREE, Appellant.
• Court: Nebraska Supreme Court

Page 777

299 N.W.2d 777

207 Neb. 593

STATE of Nebraska, Appellee, v. David Paul FERREE, Appellant.

No. 43323.

Supreme Court of Nebraska.

Dec. 29, 1980.

Syllabus by the Court

1. Probation and Parole: Right to Hearing: Due Process. A probationer is entitled to a preliminary hearing at or near the place of the alleged violation of probation or the arrest.

2. Probation and Parole: Right to Hearing: Due Process. At the preliminary hearing, the probationer is entitled to notice of the alleged violations of probation, an opportunity to appear and present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing.

3. Probation and Parole: Right to Hearing: Due Process. Where evidence produced at the preliminary hearing does not support charges made in the State's amended complaint, the defendant must be given a second preliminary hearing on the new charges.

4. Probation and Parole: Right to Hearing: Due Process: Waiver. A probationer does not waive his right to a preliminary hearing because he fails to request one.

James W. Symonds of Cronin, Hannon & Symonds, O'Neill, for appellant.

Paul L. Douglas, Atty. Gen., and Terry R. Schaaf, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, WHITE, and HASTINGS, JJ.

WHITE, Justice.

This is an appeal from the District Court for Holt County, Nebraska. The court found that the appellant, David Paul Ferree, had violated his probation and sentenced him to a term of not less than 2 nor more than 4 years in the Nebraska Penal and Correctional Complex for the crime of burglary.

On December 16, 1977, appellant had pleaded guilty to a charge of burglary and, on April 12, 1978, appellant had been sentenced to probation for a term of 4 years. In July 1978, appellant was charged with violation of his probation and, in September, he was found guilty and sentenced to 90 days in the Holt County jail and his probation was extended. In September 1978, appellant was again charged with violation of probation by setting a fire in the wastebasket in his jail cell. On October 18, 1978, at a preliminary hearing, the hearing officer found that probable cause existed to believe that appellant had violated his probation. At trial on December 15, 1978, appellant was sentenced to 1 year and 3 months probation. Among other provisions, his probation was conditioned on his refraining from unlawful conduct, making written reports to his probation officer, notifying his probation officer or the court of any change in his place of address or employment, and remaining within the jurisdiction of the court.

On March 7, 1979, the Holt County attorney filed a complaint charging that between January 9, 1979, and February 26, 1979, appellant had violated his probation by conveying false information to his probation officer concerning his place of residence and employment. On March 8, 1979, a warrant was issued and appellant was arrested and returned to Holt County on January 25, 1980. At the time of his arrest, appellant was still incarcerated in the Nebraska Penal and Correctional Complex. He had been sentenced to 11/2 to 3 years for theft by unlawful taking by the District Court for Douglas County after pleading guilty to that charge on January 18, 1980.

On January 28, 1980, appellant was given a preliminary hearing in Holt County. The court determined that probable cause existed and set a final hearing date. On January 29, 1980, the State amended its complaint and, on February 8, 1980, appellant was found guilty of violating his probation.

Appellant assigns as error the following: (1) The District Court's failure to dismiss the original complaint after the preliminary hearing; and (2) The District Court's failure to dismiss the amended complaint. Appellant alleges in his brief that he was not given a preliminary hearing that complied with the requirements established in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Morrissey established that a parolee is entitled to a preliminary hearing at or near the place of the alleged violation of parole or the arrest. In 1973, The U. S. Supreme Court extended those same requirements to persons charged with violation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Appellant contends his preliminary hearing was not held at or reasonably near the place of the alleged violation or arrest as required. This contention is without merit. At the time of his arrest, appellant was incarcerated and not at liberty to gather witnesses or evidence. The record of his probation proceedings was in the exclusive possession of the District Court for Holt County and appellant "has alleged no demonstrative prejudice, and we can perceive none." Kartman v. Parratt, 535 F.2d 450, 457 (8th Cir. 1976).

Appellant also contends that he was not given a preliminary hearing on the charges of which he was later convicted. A probationer is entitled to two hearings, "one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his (probation), and the other a somewhat more comprehensive hearing...