State v. Fry, 1663--II

• Decision Date: 18 May 1976
• Docket Number: No. 1663--II,1663--II
• Citation: 15 Wn.App. 499,550 P.2d 697
• Parties: The STATE of Washington, Respondent, v. Willam E. FRY, Appellant.
• Court: Washington Court of Appeals

Page 499

15 Wn.App. 499

550 P.2d 697

The STATE of Washington, Respondent, v. Willam E. FRY, Appellant.

No. 1663--II.

Court of Appeals of Washington, Division 2.

May 18, 1976.

Jon C. Parker, appointed, Parker & Johnson, Hoquiam, for appellant.

Dennis R. Colwell, Deputy Pros. Atty., Curtis Janhunen, Pros. Atty, Montesano, for respondent.

REED, Judge.

The defendant, William E. Fry, appeals from a Grays Harbor Superior Court order revoking his probation and from the judgment and sentence entered on his former plea of juilty of grand larceny.

Defendant was granted a deferred sentence and placed on probation for three years, on May 3, 1974, having pleaded guilty to the crime of grand larceny. On September 20, 1974, a petition was filed seeking revocation of defendant's probation alleging that on September 18, 1974 defendant had stolen a pistol, camera, portable radio, knife, and a purse from an automobile parked near the beach at Westport. Defendant was taken into custody that same day, and promptly served with the petition to revoke and notice of his right to a preliminary or 'probable cause' hearing prior to the revocation hearing. Defendant at that time refused to sign a written waiver of such a hearing and was immediately released on his own recognizance.

On November 6, 1974 a revocation hearing was held in superior court at which defendant appeared with his court-appointed counsel. A police officer testified defendant had admitted the theft to him, described where a wing window and a gun taken from the pillaged car could be found, and stated further that these items were located with the help of defendant's information and a map he had drawn. Defendant denied committing the theft and that he had confessed it to the officer, blaming it on his companion at the time, Charles Livengood. Defendant did admit however, he twice had the gun in his possession even though he suspected it had been stolen. No testimony was offered as to the value of the stolen items. The Honorable John Kirkwood thereupon found defendant had committed the acts charged, revoked defendant's probation and imposed a 15-year sentence.

Defendant asserts through his assignments of error (1) a denial of due process because he was not afforded a preliminary or probable cause hearing, (2) a denial of due process because no formal findings of fact were entered after the revocation hearing and (3) the evidence was insufficient to justify revocation. We find these assignments to be without merit and affirm.

The answer to defendant's first contention lies in the fact he was immediately released from custody on his own recognizance and was not again in custody until November 6 when probation was revoked. There was, therefore, no need for a preliminary hearing, the main purpose of which is to determine if there is probable cause to revoke probation and to detain a defendant until a full hearing on the merits can be had. Cf. State v. Myers, 86 Wash.2d 419, 545 P.2d 538 (1976); Monohan v. Burdman, 84 Wash.2d 922, 530 P.2d 334 (1975); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We think this is clear from the following language in Morrissey, at page 487, 92 S.Ct. at page 2603:

Based on the information before him, the (hearing) officer should determine whether there is probable cause To hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the Parolee's continued...