In Re Rudnik , 333 Mich. 216 ( 1952 )

333 Mich. 216 (1952) 52 N.W.2d 671

In re RUDNIK.

Calendar No. 45,369.

Supreme Court of Michigan.

Sentence vacated and remanded for hearing April 7, 1952.

Frank Rudnik, in pro. per.

Frank G. Millard, Attorney General, Edmund E. Shepherd, Solicitor General, Gerald K. O'Brien, Prosecuting Attorney, and Joseph A. Sullivan, Assistant Prosecuting Attorney, for the people.

Sentence vacated and petitioner remanded to Recorder's Court for the City of Detroit for hearing April 7, 1952.

BUSHNELL, J.

In this matter we issued a writ of habeas corpus with an ancillary writ of certiorari.

Petitioner Frank Rudnik, on February 10, 1944, was arraigned on an information charging him with breaking and entering a building in the nighttime, with intent to commit larceny therein. His plea of guilty was accepted. Sentence was deferred from time to time and finally on April 10, 1944, was again deferred until further order for the reason that Rudnik had been inducted into the United States army. His former recognizance was cancelled and his personal recognizance was fixed at $1,000. On September 5th he was placed on 3 years' probation, which was suspended during his army service.

Rudnik was discharged from the army on December 8, 1944. On March 2, 1945, he was brought into court for violating his probation, and after a hearing his probation was continued. On June 5, 1945, Rudnik was arrested while in company with a parolee after threatening a gasoline station attendant with a knife. On the same day a request for a warrant for violation of probation was filed by the department of probation and a capias was issued for his rearrest. On June 8, 1945, Rudnik's probation was "revoked and terminated," and he was sentenced to prison for a term not less than 3 nor more than 15 years, with a recommendation of 3 years. A motion to set aside his sentence was denied. He was paroled on May 24, 1948, and while at liberty on this parole was found guilty of an attempted breaking and entering a store in the nighttime, for which he received a sentence of 2 to 5 years to run concurrently with his previous sentence.

After the denial of several motions, Rudnik's petition for leave to vacate the original judgment and sentence was denied on September 21, 1951. The questions raised in that petition are renewed by this defendant, in pro. per., in his petition here for a writ of habeas corpus. He contends that he was never informed of the conditions of his probation and that he could not have been held to have violated that probation because he had not been convicted or sentenced for a new offense. He also insists that no complaint or warrant was issued against him as a probation violator; that he was not informed as to the nature and cause of the accusation, and was not given an opportunity to produce witnesses in his behalf.

No conditions are stated in any of the orders for probation. However, the statutory conditions must be read into those orders and probation may then be revoked only for violation thereof. One of the statutory provisions is that he shall not violate any criminal law of the State. See People v. Pippin, 316 Mich 191; and People v. George, 318 Mich 329. The record shows that Rudnik was sentenced as a probation violator because of his breach of a penal statute, namely, felonious assault.

Rudnik is incorrect in his contention that no complaint or warrant was issued because we find that warrant in the file now before us. However, he is not charged therein with any probation violation; nor does it appear that this warrant was served upon him. There is nothing in the file before us to show that Rudnik was informed of the charge that he was required to meet at the hearing. The 1945 proceedings were not a "summary hearing" as required by the statute. CL 1929, § 17374 (Stat Ann § 28.1134). For present statute see CL 1948, § 771.4 (Stat Ann 1951 Cum Supp § 28.1134). The situation in the instant case is comparable to that in Re Bobowski, 313 Mich 521.

The order revoking the probation is set aside, the sentence vacated, and petitioner is remanded to the custody of the Recorder's Court for the city of Detroit, where a proper hearing is ordered after information is given Rudnik of the charge that he may be required to meet.

NORTH, C.J., and DETHMERS, BUTZEL, CARR, SHARPE, BOYLES, and REID, JJ., concurred.