People v. Davis

392 Mich. 221 (1974) 220 N.W.2d 452

PEOPLE
v.
DAVIS

No. 8 November Term 1973, Docket No. 54,515.

Supreme Court of Michigan.

Decided August 2, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Edward R. Wilson, Assistant Prosecuting Attorney, for the people.

Carl Ziemba, for defendant on appeal.

WILLIAMS, J.

The dispositive issue in this case is whether the trial judge had authority to place defendant, who was convicted of armed robbery, on probation.

I — FACTS

Defendant was found guilty by the court sitting without a jury of robbery armed on July 10, 1969. The court placed defendant on probation for a period of three years, the terms of which required defendant to serve the first six months in the Detroit House of Correction and to pay costs of $240 within a year after his sentence was completed and that he pay restitution in the amount of $100 during the first six months after release from Dehoco. Probation was imposed on August 7, 1969. On October 2, 1970, a warrant for probation violation was issued against defendant.

On April 26, 1972, defendant appeared in recorder's court for a hearing on violation of probation. The court offered to appoint a lawyer for defendant but he said he did not want a lawyer. The court stated that according to the October 2, 1970 notice of probation violation the defendant had paid only $10 in court costs and nothing in restitution and that the judge had been informed that there was pending against the defendant a new charge of robbery armed in recorder's court. Defendant had received a copy of this notice of probation violation the day before the hearing.

At the hearing the following exchange took place between the judge and the defendant:

"The Court: You understand what this is all about?

"The Defendant: Not really.

"The Court: I can't hear you.

"The Defendant: Not really.

"The Court: What is it you do not understand?

"The Defendant: About the costs. The $10.00 costs.

"The Court: Don't you remember when you were before me the last time and you were found guilty of armed robbery?

"The Defendant: Yes.

"The Court: And at that time I placed you on probation. Actually when you are convicted of armed robbery you are really not a candidate for probation. But I placed you on probation and required that you do six months at the Detroit House of Correction. At the same time I ordered that you reimburse the people from whom you had stolen the money. And I also assessed court costs. Now are you telling me now that you didn't understand any of that?

"The Defendant: Yes, I understood it, but when — when the probation officer told me I could stay over in Lansing, you know, I was sending money by mail, you know. And it was sent.

"The Court: How much did you send?

"The Defendant: I sent two hundred even.

"The Court: Have you got any proof of that?

"The Defendant: Just my wife and my brother.

"The Court: Have you got any money order stubs, anything like that, canceled checks?

"The Defendant: No.

"The Court: Who did you send it by?

"The Defendant: I sent it through the mail.

"The Court: In cash?

"The Defendant: Yes.

"The Court: Well, our records indicate that you paid only $10.00.

"The Defendant: Yeah. That's what they told me yesterday.

"The Court: So you are in violation of your probation."

The court found defendant guilty of violating his probation. Probation was revoked and defendant was committed to the State Corrections Commission for a period of not less than 7-1/2 years and not more than 15 years. The Court of Appeals denied leave November 24, 1972. We granted leave to appeal on March 15, 1973. 389 Mich. 776.

II — STATUTORY AUTHORITY FOR PLACING DEFENDANT ON PROBATION

The Legislature has given a clear mandate to the trial bench on the granting of probation. MCLA 771.1; MSA 28.1131 provides in part:

"In all prosecutions for crimes or misdemeanors, except murder, treason, and robbery while armed, where the defendant has been found guilty upon verdict or plea, and where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer."^[1] (Emphasis added.)

This Court has recognized that the source of probation authority is legislative:

"The granting of probation in criminal cases is subject to the provisions of chapter 11 of the code of criminal procedure, Act No. 175, Pub. Acts 1927, as amended." People v Sutton, 322 Mich. 104, 108-109; 33 NW2d 681, 683 (1948).

"The authority of the court must be found in the statute." People v Marks, 340 Mich. 495, 498; 65 NW2d 698, 700 (1954).

Therefore the placing of defendant, convicted of armed robbery, on probation in this case was a void act as the judge had no statutory authority to do so. Indeed placing defendant on probation was a violation of the legislative mandate. It follows then that defendant could not really have violated his probation because in law that probation and its terms are non-existent. Thus the trial court had no jurisdiction to summon defendant before the court for the revocation of his probation. If the defendant had not been on probation, he would never have come before the court for a violation of the terms of probation which led to the imposition of the sentence.

Since the purported placing of defendant on probation was a nullity, the matter returns to the status quo ante, or with the defendant being ready for sentencing. As a consequence the matter is reversed and remanded to recorder's court for sentencing.

We hold that the defense employed in this case may be raised only in future cases and in pending cases where defendants timely contested and are presently contesting being placed on probation in violation of MCLA 771.1; MSA 28.1131.

As already noted, the case is reversed and remanded to recorder's court for sentencing.

T.M. KAVANAGH, C.J., and SWAINSON and M.S. COLEMAN, JJ., concurred with WILLIAMS, J.

LEVIN, J. (concurring in part; dissenting in part).

We granted leave to appeal because we saw merit in the defendant's contention that the procedures followed in the revocation of his probation were not in accord with the statute and due process of law. The majority does not reach this issue but, rather, disposes of the case on another issue raised by defendant which, in my opinion, he has no standing to raise.

I

Sixty years ago the Legislature enacted that a person convicted of armed robbery may not be placed on probation. Yet in the intervening years the practice developed of imposing sentences other than to state prison.

In a recent year 43 of the 75 persons convicted of armed robbery were not sentenced to state prison. Odell Davis, in lieu of a sentence to state prison, was sentenced to serve six months in the county jail and placed on three years probation.

The 43 persons not sentenced to state prison in that one year were sentenced by 8 judges in the circuit courts of Wayne, Oakland, Jackson, Genesee and Ingham Counties and by at least 7 recorder's court judges. We are informed that this was not an atypical year.

These judges who do not sentence some persons convicted of armed robbery to state prison would, no doubt, defend this practice not only in human and practical terms but on legal grounds as well. We ought not easily to assume that the literal meaning apparent to some of us is the only possible meaning.

On full adversary presentation we may, indeed, conclude that this diversion from the rigors of state prison is contrary to the statute, but we should not attempt to decide that question except at the instance of someone who may properly be heard to complain — a prosecuting attorney or the Attorney General. We should not so decide in a case where leave was granted for another reason; we should not reach out to decide this question although it may seem to be poetic justice to hoist this defendant — and others who may be affected by this decision — by his misaimed petard.

II

Odell Davis was convicted of armed robbery and placed on probation. He appeals from a judgment convicting him of probation violation and a sentence to state prison on the original armed robbery conviction.

Having accepted, without appeal, in lieu of a sentence to state prison, the trial court's judgment placing him on probation, Davis cannot properly be heard to claim that the statute does not authorize a probationary sentence for a person convicted of armed robbery. MCLA 771.1; MSA 28.1131.

Neither the prosecutor nor the Attorney General cross-appealed from the judgment placing Davis on probation or from the subsequent order of the Court of Appeals denying Davis's application for leave to appeal the judgment of probation violation. They have not complained on brief or during oral argument that the judge erred in placing Davis on probation.

There is, thus, no need to discuss the validity of the probationary sentence. Whether valid or invalid, the judgment imposing that sentence is final. The only persons, the prosecuting attorney and the Attorney General, who might be heard to seek relief from that judgment do not complain. We cannot properly, sua sponte, revise or vacate that final judgment. Davis cannot now properly be sentenced for armed robbery unless he is guilty of probation violation.

III

A person charged with probation violation is entitled to notice of the charges against him, to an opportunity to retain counsel or, if indigent, to the appointment of counsel at public expense, to a hearing, to be confronted with the evidence against him and an opportunity to present rebuttal evidence, and to a determination of the judge, after argument of counsel, on the evidence, and to appellate review of that determination.

Davis was placed on probation on August 7, 1969. Notice of probation violation was filed over a year later, October 2, 1970. It appears that the notice of violation was first delivered to Davis on April 25, 1972, the day before the hearing, almost 19 months after its issuance. The prosecutor does not claim that a diligent effort earlier to serve the notice was unavailing.

The violation alleged a failure to have paid (as of October 2, 1970) more than $10 on $240 of court costs. Although Davis claimed he had paid $200 and that his wife and brother could substantiate his claim of cash payment, the judge, relying on a 19-month old record of payment of only $10, convicted Davis without further ado. No further check was made of the record. Nor was Davis given an opportunity to call witnesses.

The charge was too dated, the hearing too attenuated, to support a judgment convicting Davis of probation violation and a sentence to state prison.

Davis's conviction of probation violation should be reversed. There is nothing left to remand to the trial court. Davis cannot properly be convicted on the basis of a notice of probation violation served 19 months after its issuance, there being no showing that the failure to earlier serve the notice was attributable to Davis. Nor may he be resentenced for armed robbery unless he is properly convicted of probation violation.

T.G. KAVANAGH, J., concurred with LEVIN, J.

J.W. FITZGERALD, J., did not sit in this case.

NOTES

[1] Since 1927 PA 175, ch XI the offense of "robbery while armed" has been deemed by the Legislature to be one upon which probation could not be granted.