State v. Miller
| Citation | 345 N.E.2d 82,45 Ohio App.2d 301 |
| Parties | , 74 O.O.2d 476 The STATE of Ohio, Appellee, v. MILLER, Appellant. * |
| Decision Date | 10 June 1975 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
1. The notice of the preliminary hearing or of the revocation hearing required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, for the revocation of probation need only state the acts constituting the violation of the probation conditions and not the conditions of probation thus violated.
2. The timeliness of giving of such notice may not be raised on appeal when not raised in the trial court.
3. Reversible error does not exist when the preliminary hearing and the revocation hearing have been telescoped into one hearing when it does not appear that the defendant has been prejudiced by detention for an unreasonable length of time for the purpose of probation revocation proceedings between the day of his arrest and the day of hearing.
B. Edward Roberts, Pros. Atty., Marion, for appellee.
Robert E. Wilson, Marion, for appellant.
On April 7, 1971, defendant, appellant herein, commenced two concurrent sentences in the Mansfield Reformatory of one to fifteen years and one to twenty years for the commission of two felonies. On June 30, 1971, he was admitted to shock probation upon certain pertinent conditions including the following:
'(5) Conduct himself in a proper manner at all times, keep reasonable hours * * *
'(6) Refrain completely from the use of intoxicating liquors * * *, and refrain from entering places where intoxicating liquors are sold or dispensed * * *
'(16) Be in his home by 11:00 o'clock P.M. each evening, unless his employment requires otherwise, or unless in the company of his family * * *.'
On December 2, 1974, the defendant's probation officer ordered his arrest for being involved in felonious assault charge and '(a)lso being intoxicated at time of arrest.'
On December 16, 1974, notice was issued and thereupon served on defendant that 'a hearing on the probation violation of Harold Daniel Miller, having been found in a state of intoxication and other matters as may be pertinent, will be heard at the Court of Common Pleas, Marion County, Ohio, on Tuesday, December 17, 1974 at 1:00 P.M.' The hearing took place as scheduled, defendant was in court with counsel, and evidence was adduced that he was seen by a police officer leaving a bar after midnight of November 30, 1974, during the early morning hours of December 1, 1974, and by several police officers later in the morning (between the hours of three and four o'clock), when answering a complaint that two elderly residents of a rest home had been beaten, who found him on the living room floor of his home at the rear of the rest home in an intoxicated condition. There was also the testimony of a pregnant employee of the rest home that the defendant and his wife owned the rest home, that he appeared there about one A.M. on December 1, 1974, in an intoxicated condition, passed out a couple of times, cursed, tore a pipe entering a fire alarm box off the wall, and so conducted himself as to frighten the employee into leaving the home for the protection of herself and her unborn child. The defendant offered on evidence.
The trial judge announced his decision at the end of the hearing revoking probation for violation of the above quoted conditions and found in his journal entry filed on December 24, 1974, that the defendant 'did violate the conditions of his probation in the following respects; he did fail to conduct himself in a proper manner at all times, he did fail to refrain completely from the use of alcoholic beverages and refrain from entering places where alcoholic beverages are sold or dispensed and he did fail to be in his home by 11:00 P.M. each evening, unless his employment requires otherwise, and that by reason thereof said probation should be terminated.' He was then resentenced and returned to prison.
It is from this judgment of revocation of probation that the defendant appeals assigning as error that he was deprived of the constitutional safeguards of due process guaranteed to him by the case of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.
Appellant's first claim is, in effect, that the findings that the defendant 'did fail to conduct himself in a proper manner at all times (condition 5 of his probation), and he did fail to refrain completely from the use of alcoholic beverages and refrain from entering places where alcoholic beverages are sold or dispensed (condition 6 of his probation) and he did fail to be in his home by 11:00 P.M. each evening, unless his employment requires otherwise (condition 16 of his probation),' are not permissible findings when the notice on which the revocation hearing was held merely specified that the hearing would be on the probation violation of defendant 'having been found in a state of intoxication and other matters as may be pertinent.'
Morrissey v. Brewer, supra, as applicable to probation revocation under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, contemplates a hearing 'in the nature of a 'preliminary hearing' to determine whether there is probable cause or reasonable ground to believe that the arrested parolee (probationer) has committed acts which would constitute a violation of parole (probation) conditions,' with a notice thereof which 'should state what parole (probation) violations have been alleged.' Morrissey v. Brewer, 408 U.S pp. 485-487, 92 S.Ct. 2602-2603. On the other hand, by the same authority, pp. 487-489, 92 S.Ct. 2603-2604, a revocation hearing is also contemplated which 'must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation,' and must be pursuant to a 'written notice of the claimed violations of parole (probation).'
It will be observed that the notice requirements are not for a notice of the conditions of probation which have been violated. The probationer is well aware, or is at least charged with a full awareness, of the conditions of his probation and, in our opinion, the notice for either the preliminary hearing or the revocation hearing merely requires, in this respect, a statement of the acts which are claimed to be violations of the probation conditions. Thus, the notice here related to the probationer 'having been found in a state of intoxication and other matters as may be pertinent.' Fairly construed, the 'other matters as may be pertinent' are matters relating to his having been found in a state of intoxication, including his departure...
To continue reading
Request your trial
-
Sincup v. Blackwell
...content is not controlling. Each tends to intoxicate, a condition inconsistent with petitioner's rehabilitation. Accord: State v. Miller, 45 Ohio App.2d 301, 74 Ohio Ops.2d 476, 345 N.E.2d 82, 85 Next petitioner contends the judge abused his discretion because Sincup's violation was minor o......
-
People v. Monick
...at 2603 (a lapse of two months held not to be unreasonable). See also Pearson v. State, 241 N.W.2d 490 (Minn.1976). Cf. State v. Miller, 345 N.E.2d 82 (Ohio App.1975); Woods v. State, 526 P.2d 944 (Okl.Cr.1974); Ewing v. Wyrick, 535 S.W.2d 442 Next, defendant argues that the probation revoc......
-
State v. Castillo
...a percent that it will produce some degree of intoxication when imbibed in a quantity that may practically be drunk."); State v. Miller, 345 N.E.2d 82, 85 (Ohio Ct. App. 1975) (intoxicating liquor is any beverage containing sufficient alcohol to cause impairment); Thornton v. N.D. State Hig......
-
State v. Greene
...72 (1984); see also State v. Knerr, 3d Dist. Auglaize Nos. 2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14, citing State v. Miller, 45 Ohio App.2d 301, 306, 345 N.E.2d 82 (3d Dist.1975); State v. Jackson, 7th Dist. Mahoning No. 14 MA 108, 2015-Ohio-3959, ¶ 9; State v. Waddell, 10th Dist. Franklin......