City of Detroit v. Del Rio , 10 Mich. App. 617 ( 1968 )

10 Mich. App. 617 (1968) 157 N.W.2d 324

CITY OF DETROIT
v.
DEL RIO.

Docket No. 2,761.

Michigan Court of Appeals.

Decided April 2, 1968. Application for rehearing filed April 22, 1968.

Robert Reese, Corporation Counsel, and Robert D. McClear, Assistant Corporation Counsel, for plaintiff.

J. Leonard Hyman (Philip Green, of counsel), for defendant.

PETERSON, J.

Defendant was convicted in recorder's court of the city of Detroit of violating section 38-7-6 of the Detroit municipal code by entering an intersection against a red light, and was placed on probation for six months. A condition of probation prohibited him from operating a motor vehicle during the probationary term. It is of this condition that defendant complains, contending that the recorder's court is without power to make such an order, or that, if the power exists, the entry of the order was an abuse of discretion.

So far as is here pertinent, the ordinance in question is identical to section 612 of the Michigan vehicle code, CLS 1961, § 257.612, as amended by PA 1966, No 237 (Stat Ann 1968 Cum Supp § 9.2312). Punishment under the ordinance may be by fine or jail term or both.^[1]

In this setting, the power to enter probation orders under chapter 11 of the code of criminal procedure, CL 1948 and CLS 1961, § 771.1 et seq. (Stat Ann 1954 Rev and Stat Ann 1968 Cum Supp § 28.1131 et seq.), has been established. Both People v. Goldman (1923), 221 Mich. 646, and People v. Sarnoff (1942), 302 Mich. 266, affirm the existence of such power, the former involving a violation of the Detroit traffic ordinance, the latter a violation of the Detroit building code.^[2]

Section 3 of the probation chapter of the code of criminal procedure, CLS 1961, § 771.3 (Stat Ann 1968 Cum Supp § 28.1133), deals with conditions of probation. Some conditions are specified as mandatory in every probationary case. Other conditions are expressly permitted where found appropriate in the discretion of the trial judge. In addition, it is provided that:

"The court may impose such other lawful conditions of probation, including restitution in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper."

It would serve no useful purpose to attempt to catalogue what may be "other lawful conditions of probation." The Court is not disposed to attempt what the legislature avoided, and it is clear that considerable latitude is intended for the trial judge in imposing the conditions he may deem pertinent to the offense and appropriate to the rehabilitation of the offender.^[3]

In the former category, the act itself provides one example, that of restitution. Sarnoff, supra, approved another, the requirement that the defendant supply the omission which constituted the offense, viz., making building repairs necessary to comply with the Detroit building code. In the latter category is the host of possible conditions dealing with the offender himself, which are intended for his guidance and rehabilitation. Such conditions deal with his conduct, habits, and behavioral needs. Often the two categories coincide, e.g., a program of restitution may be pertinent to the offense of theft and at the same time be instrumental in helping the offender acquire a sense of responsibility as to his act and as to his financial affairs. Similarly, a probation condition prohibiting, or imposing limitations on, the operation of a motor vehicle could be pertinent to a variety of offenses, not necessarily limited to the vehicle code and like ordinances, and may also be a useful device in imposing controls upon a particular offender. So viewed, the probationary condition in the instant case would not appear to be beyond the discretion vested in the trial judge by the statute.

Defendant contends, however, that even if the statute is so construed, power to impose this specific condition has been pre-empted by the provisions of section 317 et seq. of the Michigan vehicle code, CLS 1961, § 257.317 et seq. (Stat Ann 1960 Rev § 9.2017 et seq.), providing for the revocation or suspension of drivers' licenses through several different procedures and following various specified events. The establishment by the legislature of these procedures is said to be intended to fix the exclusive procedure for revocation and suspension of licenses. The vehicle code does not so provide in so many words, and appellant cites no authority for this proposition. We think it clear, in any event, that the purposes of the statute were not intended to be identical with those contemplated by the code of criminal procedure. Thus, while suspension or revocation under the vehicle code may well have a chastening effect, the purpose of those procedures is traffic safety.

"In the first place, the revocation of an operator's license * * * is not a criminal penalty * * * and is not a punishment for the offense. Rather, the conviction of certain offenses is declared to show — conclusively, to be sure, unless called into question under section 20^[4] — the unfitness of the offender to operate a motor vehicle on the public streets and highways." In re Probasco (1934), 269 Mich. 453, 457.

The purposes of the code of criminal procedure, on the other hand, may coincide with the public aim of traffic safety but not necessarily so, and the Court finds nothing in the vehicle code designed to subordinate the purposes and powers of the courts under the code of criminal procedure to the purposes of the vehicle code.

It is the contention of the defendant, however, that imposition of the condition amounted to an abuse of discretion. Defendant argues that the offense was of a relatively innocuous nature, and that there was no reason peculiar to his traffic record why such a condition should have been imposed. The trial judge could have imposed a fine or jail sentence or both, or could have imposed other conditions of probation including jail time. He observed the defendant on trial and could form conclusions as to his attitude towards the traffic laws which we could not draw from the record. Neither does this Court have the knowledge of the possibly pertinent traffic problems of the community which the trial judge might have. Defendant's prior traffic record is not a part of the record in this case and may or may not have been considered by the trial judge. In any event, it is not for an appellate court to supervise the trial court in its discretionary choice of alternatives from among the possible lawful dispositions. See People v. Will (1966), 3 Mich. App. 330. The order of the recorder's court is affirmed.

BURNS, P.J., and HOLBROOK, J., concurred.

NOTES

[1] Section 1-1-7, Municipal Code of the City of Detroit, setting the maximum fine at $500, and the maximum jail sentence at 90 days.

[2] In the face of these precedents, there is no merit to defendant's contention that the municipality must authorize the use of probation for violation of its ordinances. CL 1948, § 726.30 (Stat Ann 1962 Rev § 27.3580), creating the recorder's court, provides:

"Punishments * * * for offenses against the ordinances and regulations of the common council shall be prescribed by said common council."

Probation has never been considered to be a form of punishment. See People v. Fisher (1927), 237 Mich. 504, and People v. Teasdale (1952), 335 Mich. 1.

[3] Examples of conditions of probation held invalid are found in People v. Smith (1930), 252 Mich. 4; People v. Baum (1930), 251 Mich. 187; People v. Teasdale (1952), 335 Mich. 1; and People v. Becker (1957). 349 Mich. 476. As noted in Becker, conditions of probation may not be violative of constitutional safeguards; nor may conditions be imposed contrary to the authorization of the probation statute. In re Cramer (1952), 335 Mich. 150, and cases cited therein.

[4] CL 1948, § 256.220 (Stat Ann § 9.1520), since repealed by PA 1949, No 300, § 921 (CLS 1961, § 257.921, Stat Ann 1960 Rev § 9.2621). Currently, see PA 1949, No 300, § 323 (CLS 1961, § 257.323, Stat Ann 1962 Rev § 9.2023).