People v. Bell , 67 Mich. App. 351 ( 1976 )

67 Mich. App. 351 (1976) 241 N.W.2d 203

PEOPLE
v.
BELL

Docket No. 23786.

Michigan Court of Appeals.

Decided February 11, 1976.

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 Barry J. Siegel, Assistant Prosecuting Attorney, for the people.

Thomas Lazar, for defendant on appeal.

Before: DANHOF, P.J., and McGREGOR and N.J. KAUFMAN, JJ.

Leave to appeal denied, 397 Mich ___.

N.J. KAUFMAN, J.

On March 6, 1973, Gaylord F. Bell pled guilty to assault with intent to rob being armed, MCLA 750.89; MSA 28.284. He was sentenced on the same date to five years of probation with the special instructions that he have a midnight curfew and that he participate in a drug abuse program.

The record indicates that on March 10, 1975, a notice of probation violations was filed against the defendant. Also, on March 10, 1975, the defendant was given a hearing on the probation violations before the same judge who had earlier accepted his plea of guilty. At the hearing, the defendant was represented by counsel. Based on the statements of his probation officer, it was found that defendant had missed appointments at the drug clinic in January, 1975. Further, an employee of a clothing store testified that on February 13, 1975, she had seen the defendant take a coat out of the store without paying for it. The defendant denied having taken the coat, but pled guilty to missing the appointments at the drug clinic. The trial court found the defendant guilty of violating probation on both counts. The defendant was then sentenced to a term of a minimum of 3 years to a maximum of 20 years in prison. The charge on the coat incident was dismissed.

From February 13 to March 10, the defendant had been incarcerated at the county jail, apparently because his bond had been improperly marked for sureties. The defendant appeals of right.

The issue raised on appeal is whether the probation revocation hearing in the instant case violated due process. In Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), the Supreme Court applied to probation revocation hearings procedural safeguards which it had prescribed for parole revocation hearings in Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). Gagnon and Morrissey required two hearings to be held, a preliminary probable cause hearing and a final hearing to determine guilt. The Court noted:

"[T]he `minimum requirements of due process' include * * *:

"`(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.' Morrissey v Brewer, supra, at 489." 411 US, p 786.

As we noted recently in People v Gulley, 66 Mich App 112; 238 NW2d 421 (1975).

"In proceedings such as this, the notice requirement may well be the most crucial. To comply with due process requirements, the notice `must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded.' In re Gault, 387 US 1, 33; 87 S Ct 1428; 18 L Ed 2d 527 (1967)."

In the instant case, defendant was not given the requisite notice. The trial court, thus, erred reversibly. However, defendant pled guilty to the first charge, failure to attend a drug abuse clinic. As to this charge, he thus waived all non-jurisdictional defects. People v Potts, 45 Mich App 584; 207 NW2d 170 (1973). Defendant's conviction on the second charge is properly before us. Because defendant was not given a reasonable opportunity to prepare for the revocation hearing, his conviction on the second charge, shoplifting, must be reversed.

Although defendant has already pled guilty to having violated a condition of his probation, we find that a remand for reconsideration of the second charge is necessary because an acquittal might alter his sentence. 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 sufficient notice and opportunity to prepare for the hearing. Defendant shall be given credit for time incarcerated while awaiting bond.

McGREGOR, J., concurred.

DANHOF, P.J. (concurring in part, dissenting in part).

I would concur with the finding of the majority as to the second count that the trial court committed reversible error in not giving the defendant the requisite notice.

However, I would also vote to reverse and remand for a hearing on the first count. Under the circumstances of this case, it is difficult to see how the defendant intelligently waived the notice necessary to reasonably prepare for the hearing. He was picked up by the police on the coat charge and incarcerated for three weeks. Then, on March 10, 1975, he obtained counsel, received notice of his violations, and was brought before the trial court. Due process requires adequate notice before any hearing is held which has the consequences of the one in the present case.