People v. Hernandez , 14 Mich. App. 741 ( 1968 )


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  • 14 Mich. App. 741 (1968)
    166 N.W.2d 58

    PEOPLE
    v.
    HERNANDEZ

    Docket No. 5,033.

    Michigan Court of Appeals.

    Decided December 19, 1968.

    Maurice Black, for defendant on appeal.

    PER CURIAM:

    September 21, 1967, after a probation violation hearing, defendant's probation was revoked and he was sentenced to prison. Defendant was not represented by counsel at the revocation hearing; he was not advised of his right to counsel; nor was it determined whether or not *742 defendant desired counsel. On September 21, 1967, the law did not require that defendant be represented by counsel at a probation violation hearing nor that he be advised of his right to counsel. On the basis of Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336), defendant appeals and attacks the validity of the probation revocation and sentence.

    Mempa, supra, was decided November 13, 1967, and it established that counsel must be afforded at a revocation-of-probation hearing that includes sentencing. McConnell v. Rhay (1968) 393 US 2 (89 S Ct 32, 21 L Ed 2d 2), decided October 14, 1968, made the Mempa doctrine retroactive.

    Defendant's sentence is vacated and the cause is remanded to the trial court for a probation violation hearing with counsel present, unless defendant intelligently waives counsel for such hearing.

    T.G. KAVANAGH, P.J., and QUINN and MILLER, JJ., concurred.

Document Info

Docket Number: Docket 5,033

Citation Numbers: 166 N.W.2d 58, 14 Mich. App. 741, 1968 Mich. App. LEXIS 983

Judges: Kavanagh, Quinn, Miller

Filed Date: 12/19/1968

Precedential Status: Precedential

Modified Date: 11/10/2024