People v. Kendall

142 Mich. App. 576 (1985) 370 N.W.2d 631

PEOPLE
v.
KENDALL

Docket No. 75524.

Michigan Court of Appeals.

Decided May 7, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and Joseph S. Skocelas, Assistant Prosecuting Attorney, for the people.

Daudert, Basch & Bucklin, P.C. (by Martin C. Basch), for defendant on appeal.

Before: R.B. BURNS, P.J., and ALLEN and T.L. BROWN,^[*] JJ.

PER CURIAM.

Defendant appeals as of right from a trial court order revoking defendant's probation and sentencing him to serve nine months in jail.

On June 26, 1981, defendant pled guilty to breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. Defendant had taken three bags of potato chips from a drive-in. Defendant was sentenced to two years probation, with the first 30 days to be served in county jail. On May 19, 1983, defendant was arrested for driving a motorcycle while his license was revoked. On July 7, 1983, approximately three weeks before the end of defendant's two-year period of probation, the trial court entered an order extending defendant's probation for six months "in order to allow time for disposition of pending charges".

On September 27, 1983, the court entered an order to show cause why probation should not be revoked. Defendant pled not guilty and filed a motion to dismiss. A hearing was held on October 17, 1983. Defendant argued that the court had abused its discretion by extending defendant's probation for an additional six months and, consequently, the court had lost jurisdiction because revocation proceedings were not pending against defendant at the end of the two-year period of probation. See People v Wakefield, 46 Mich. App. 97, 100; 207 NW2d 461 (1973). The court denied defendant's motion to dismiss and accepted defendant's plea of guilty to the violation of term 1 of the probation order by driving a motorcycle while his license was revoked in violation of the law. On December 15, 1983, defendant was sentenced to nine months in jail, with credit for 71 days served.

On appeal, defendant first argues that the circuit court abused its discretion by amending the probation order without first holding a hearing and giving defendant an opportunity to oppose the amendment. Orders of probation are "at all times alterable and amendable, both in form and in substance, in the court's discretion". MCL 771.2(2); MSA 28.1132(2). An order of probation may be amended on an ex parte basis. There is no requirement that defendant be given notice or an opportunity to be heard prior to the amendment. People v Marks, 340 Mich. 495, 501; 65 NW2d 698 (1954); People v Graber, 128 Mich. App. 185, 190-191; 339 NW2d 866 (1983), lv den 419 Mich. 880 (1984). Since there is no allegation that defendant did not receive notice of the amendment, we find no abuse of discretion.

Defendant also argues that the circuit court abused its discretion by delegating its authority to administer probation to the probation department. At the hearing held on defendant's motion to dismiss, defendant's probation agent testified that when she petitioned the court for an order amending probation to extend probation six more months she dropped the petition off at the judge's office. No hearing or discussion was had with the judge. After receiving the order signed by the judge, she filed the order with the clerk's office and a copy was sent to defendant. Defendant argues that the trial court improperly delegated its decision to the probation agent because the court did not hold a hearing or discuss the petition with the probation officer.

Since probation is a period of grace in order to aid rehabilitation, the court is given an exceptional degree of flexibility in the administration of probation. People v Marks, supra, p 500. However, a court may not delegate its statutory authority to the probation department. In People v Good, 287 Mich. 110; 282 N.W. 920 (1938), it was held that a provision in an order of probation which required the defendant to make restitution payable "as determined by the probation department" was invalid because the authority vested in the court could not be delegated. Here, however, the court did not delegate its duty. It entered an order granting the probation officer's petition to extend probation for an additional six months. The probation department may act in an advisory capacity to the court. People v Good, supra, p 117. Since the circuit court had the authority to place defendant on probation for a period of up to five years, MCL 771.2; MSA 28.1132, the court had the authority to extend probation for an additional six months even though the original probation order had not been violated. People v Marks, supra, p 501. Consequently, we find that the trial court did not abuse its discretion by extending probation and the court had the jurisdiction to invoke revocation proceedings. People v Wakefield, supra.

Defendant also argues that the jail sentence imposed by the trial court was excessively severe. After examining the record and the trial court's sentence explanation, we cannot say that the sentence imposed amounted to an abuse of discretion or shocks our consciences. People v Coles, 417 Mich. 523, 550; 339 NW2d 440 (1983).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.