State v. Tracy , 119 Idaho 1027 ( 1991 )

BOYLE, Justice.

In this appeal we are called upon to determine whether the district court had sufficient basis to revoke appellant’s probation.

In August, 1987, John Michael Tracy plead guilty to three counts of issuing checks without funds in violation of I.C. § 18-3106(a). The district court sentenced Tracy to a fixed three-year sentence on all three counts. However, Tracy was given credit for time served and the balance of the sentence was suspended to a one-year sentence to be served in the county jail. The consecutive three-year sentences imposed on Counts II and III were suspended, and Tracy was placed on probation for a total of six years.

In October, 1989, a bench warrant was issued alleging Tracy violated five conditions of his probation. An evidentiary hearing was held and the district court found that Tracy had violated the following conditions of his probation: 1) failure to appear before his probation officer; 2) failure to submit a written report to his probation officer; 3) unauthorized presence outside the district; and 4) unauthorized change of residence. The district court held that a fifth alleged probation violation of failure to pay restitution was not proven. Based upon the four conditions of probation found to be violated, the district court revoked Tracy’s probation and imposed a one-year indeterminate sentence on Count I and two concurrent three-year indeterminate terms for Counts II and III to be served consecutive to Count I.

Our review of the record before us establishes that Tracy clearly violated three conditions of his probation. The probation officer testified at the hearing that Tracy failed to make his monthly report, failed to appear and report to the probation office when ordered and that when he went to Tracy’s residence he was told by the current occupant that Tracy no longer resided there. Tracy did not testify at the probation hearing and did not object to any of the foregoing testimony. However, Tracy did object to certain hearsay testimony relating to his alleged absence from the state. The probation officer testified to conversations he had with an Ontario, Oregon police officer as to Tracy’s recent presence in that city. Tracy objected to this testimony at the probation violation hearing, and has argued on appeal that this hearsay testimony relating to the conversations with the Oregon police officer violated his constitutional rights.

It is well established that this Court will not pass upon questions of constitutionality until it is presented with a cause demanding a ruling. State v. Hightower, 101 Idaho 749, 620 P.2d 783 (1980); Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923 (1938); State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct.App.1984); State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct.App.1984). The issues presented in this appeal can be resolved on the uncontroverted evidence before us and it is unnecessary to reach or address the constitutional issue raised by Tracy.¹

On appeal, Tracy raised narrow issues as to whether he was afforded due process of law in the district court proceeding resulting in his probation being revoked. After a careful review of the record, we hold that Tracy was afforded due process. The finding of a probation violation must be on verified facts and that the trial court’s exercise of discretion will be informed by an accurate knowledge of the probationer’s behavior. State v. Chapman, 111 Idaho 149, 152, 721 P.2d 1248, 1251 (1986); see Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Our review of the record and the evidence submitted to the district court at the hearing clearly establishes that Tracy violated three conditions of his probation. The record clearly demonstrates that Tracy failed to obtain permission before moving, failed to file a report and failed to follow the instruction of his probation officer. It is therefore not necessary to prove a probation violation by reliance on the testimony of the probation officer’s conversations with an Oregon police officer. It is clear from our review of the record that the three counts which Tracy was found to have violated were based on verified facts and that the district court’s decision to revoke probation was informed by an accurate knowledge of Tracy’s behavior.

We affirm the order of the district court revoking Tracy’s probation.

BAKES, C.J., and JOHNSON and McDEVITT, JJ., concur.

1 . Although we do not reach the constitutional issue, we have recently held that the Rules of Evidence do not apply to proceedings for revoking probation. State v. Peters, 119 Idaho 382, 807 P.2d 61 (1991); see also I.R.E. 101(e)(3).