People v. Emery , 71 Mich. App. 556 ( 1976 )

71 Mich. App. 556 (1976) 248 N.W.2d 619

PEOPLE
v.
EMERY

Docket No. 22631.

Michigan Court of Appeals.

Decided October 18, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and George Holmes, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Dennis M. Powers, Assistant Attorney General, of counsel), for the People.

Henry L. Greenwood, for defendant.

Before: DANHOF, C.J., and QUINN and M.F. CAVANAGH, JJ.

DANHOF, C.J.

The defendant was convicted, on his plea of guilty, of larceny in a building, contrary to MCLA 750.360; MSA 28.592. He was sentenced to a term of probation as a result. On August 26, 1974 he was found in violation of the terms of that probation and sentenced to a term of imprisonment of from two to four years.

Defendant first requests that we examine the validity of the underlying plea of guilty. This we decline to do, the time for taking such an appeal having long since expired. People v Pickett, 391 Mich 305; 215 NW2d 695 (1974).

The defendant was placed initially on probation for a term of three years. The prison term followed a hearing on the violation of probation for failure of the defendant to make certain monthly payments which were part of his probation terms. The record supports the revocation, indicating that although he was in a position to do so, the defendant failed to make the monthly payments as stated.

Defendant also claims that he was entitled to review the presentence report. The record discloses that the presentence report was given to the defendant's attorney as required by GCR 1963, 785.12.

Defendant's last contention, concerning sentence credit, has been decided adversely to defendant in People v Jaynes, 23 Mich App 360; 178 NW2d 558 (1970).

Affirmed.

QUINN, J., concurred.

M.F. CAVANAGH, J. (dissenting).

I must dissent. Although the sentencing judge is permitted broad discretion in probation matters, People v Gallagher, 55 Mich App 613, 620; 223 NW2d 92 (1974), the decision whether to terminate or revoke probation must be on the basis of the alleged probation violation alone. People v Elbert, 21 Mich App 677, 681; 176 NW2d 467 (1970). The sole ground for revocation in this cause was the defendant's failure to pay the July, 1974, installment. However, by his action of August 1, the probation officer waived the timeliness of payment of the July installment and the defendant was prevented from making a timely payment later in August only by the probation officer's refusal to accept. Thus, there could be no violation of a prior waived condition of timeliness.

For this reason, I would hold the revocation of probation to be an abuse of discretion and would reverse.