State v. Johnson ( 1993 )

ORDER

This matter was before the Supreme Court pursuant to an order directing the defendant to appear and show cause why the issues raised in this appeal should not be summarily decided. In this case the defendant has appealed from a determination that he had violated the terms of his probation.

After reviewing the memoranda submitted by the parties and after hearing counsel for the defendant and the state in oral argument, it is the opinion of the court that cause has not been shown.

The trial justice did not violate § 12-19-10 by revoking defendant’s suspended sentence. That statute applies only to persons who have been imprisoned. It does not address the reinstatement of a suspended sentence when defendant violates his probation outside of prison. Since defense counsel presented argument following the hearing and before imposition of sentence and defendant made no request to be allowed to speak, there was no reversible error in the trial justice’s failure to offer defendant the right of allocution.

Finally, defendant asserts a violation of Super.R.Crim.P. 32(f). Since no objection on this issue was made in the Superior Court, the issue is not properly before the court. Nevertheless, a review of the record satisfies the court that while there might have been a technical non-compliance with the rule, it is apparent that defendant had actual knowledge of the violation alleged and his counsel was able to effectively cross-examine state witnesses and present five witnesses for the defense. Defendant would not be entitled to relief on this issue.

For these reasons, defendant’s appeal is denied and dismissed, the judgment appealed from is affirmed, and the papers of the case are remanded to the Superior Court.