People v. Acosta , 65 Mich. App. 640 ( 1975 )

65 Mich. App. 640 (1975) 237 N.W.2d 601

PEOPLE
v.
ACOSTA

Docket No. 21633.

Michigan Court of Appeals.

Decided November 14, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney Research, Training and Appeals, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

Elliard, Crenshaw & Strong, for defendant.

Before: R.M. MAHER, P.J., and BRONSON and T.M. BURNS, JJ.

PER CURIAM.

On April 19, 1973, defendant pled guilty to unlawfully taking and using a motor vehicle, MCLA 750.414; MSA 28.646. He was sentenced to a term of two years probation. On September 19, 1974, defendant was found guilty of violating probation and was sentenced to a term of one year and four months to two years. Defendant appeals as of right.

While defendant raises several issues on appeal, we find one to be dispositive. The notice of probation violation charged defendant with having been present in an automobile containing a shotgun and ammunition. The basis of the trial court's revocation order, however, was defendant's anti-social conduct. Assuming arguendo that defendant was properly notified of the initial charge, defendant had no notice that he was expected to meet a charge of anti-social behavior. While the trial court's finding may be viewed as a mere characterization of the conduct contained in the charge, we have previously held that a probationer must have notice of the specific violation charged and the revocation hearing is to be restricted thereto. People v Elbert, 21 Mich. App. 677; 176 NW2d 467 (1970), People v Davenport, 7 Mich. App. 613; 152 NW2d 553 (1967).

In the instant case, the trial court exceeded the proper scope of the hearing. Defendant's conviction therefore, must be reversed.

The order revoking defendant's probation is set aside, the sentence vacated, and the defendant is remanded to the custody of recorder's court without prejudice on the part of the court to conduct a hearing after defendant is given a written copy of the probation violation charges that he is required to meet.