State v. Kartman
| Decision Date | 02 January 1975 |
| Docket Number | No. 39357,39357 |
| Citation | 192 Neb. 803,224 N.W.2d 753 |
| Parties | STATE of Nebraska, Appellee, v. Gerson Merrill KARTMAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A written report from the probation officer is not a jurisdictional requirement in a probation revocation proceeding.
2. A motion or information to revoke probation must be filed in the sentencing court. There is no requirement that it be heard by the sentencing judge.
3. A probationer charged with a violation of probation is entitled to a preliminary hearing reasonably near the place of the alleged violation or his arrest and as promptly as convenient after his arrest.
4. A finding that a probationer has engaged in unlawful conduct may be based on evidence relating to another offense without regard to whether the probationer has been convicted of that offense.
Frank B. Morrison, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ., and FAHRNBRUCH, District Judge.
The defendant was charged with three counts of motor vehicle homicide. Upon pleas of nolo contendere he was sentenced to 2 months imprisonment on count I and placed on probation for 2 years on counts II and III. The probation period commenced October 2, 1972, at the expiration of the sentence on court I.
A motion to revoke the defendant's probation was filed on September 17, 1973. A preliminary hearing was held and a report finding probable cause was filed on September 28, 1973. After an evidentiary hearing in the District Court, at which the defendant was represented by counsel, the trial court found specifically the defendant had violated his probation in that he had engaged in unlawful conduct and would not refrain from unlawful conduct in the future. The defendant's probation was revoked and he was sentenced to imprisonment for 1 to 10 years on count II and 1 year on count III, the sentences to run concurrently.
The defendant has appealed and contends the revocation procedure in this case denied him due process of law and did not comply with sections 29--2266 and 29--2267, R.S.Supp., 1972, of the Nebraska Probation Administration Act.
Section 29--2266, R.S.Supp., 1972, provides for the filing of a written report by the probation officer whenever he has reasonable cause to believe a probationer has violated or is about to violate a condition of his probation. The procedure set out in this statute is cumulative and not exclusive and a written report from the probation officer is not a jurisdictional requisite for a probation revocation proceeding.
Section 29--2267, R.S.S.upp., 1972, prescribes the procedure to be followed after a motion or information ot revoke probation has been filed. It provides generally that the probationer is entitled to a copy of the information or written notice of the grounds on which the information is based. After proper notice there is to be a hearing at which the probationer has the right to be represented by counsel, to hear and controvert the evidence against him, and to offer evidence in his defense. The statute further provides the probationer is entitled to a prompt consideration of the charge by the sentencing court, and the probation shall not be revoked or the requirements imposed on the probationer increased unless the violation of probation is established by clear and convincing evidence.
The motion to revoke probation in this case was filed in the District Court for Douglas County, Nebraska, which was the sentencing court. The statute does not require the motion be heard by the sentencing judge. A hearing before a judge of the sentencing court complies with the statute.
The defendant further contends the procedure in this case failed to comply with the requirements set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. In the Morrissey case the Supreme Court of the United States established procedural requirements for revocation of parole. In the Gagnon c...
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