People v. Diamond

245 N.W.2d 909, 70 Mich. App. 512, 1976 Mich. App. LEXIS 876

Opinions

D. C. Riley, J.

Following a protracted legal brouhaha, we must finally resolve the issue raised by defendant: where probation authorities and law enforcement officials, owing to haphazard record-keeping, are unable to corral a wayward probationer, failing in his duty to report but leaving scattered clues of his whereabouts, should a court void a subsequent probation revocation? This statement of the issue requires more labor than the answer, for our resolution in this case is a confident "No”.

Many of the essential facts leading to this appeal are reported in a previous opinion, People v Diamond, 59 Mich App 581; 229 NW2d 857 (1975). At that juncture, the matter was remanded to the Detroit Recorder’s Court to resolve certain questions unanswered by the record, 59 Mich App at 587-588. The panel issued the following directive:

"If the trial court finds they did not, then the court should find there has been a waiver of the probation violation in the instant matter. On the other hand, if the court should find the authorities were diligent in their pursuit of defendant, then his conviction should be affirmed”. 59 Mich App at 588.

On remand, the Recorder’s Court judge, after extensive evidentiary hearings, found that the probation officers acted with reasonable dispatch. The judge’s factual findings are too lengthy to report in full. We note only that he concluded that no one intentionally withheld information or intentionally ignored defendant’s probation violations. Rather, he concluded that the system, lacking sufficient resources or reasons to track down every probation violator, had performed adequately, if inefficiently.

We emphasize that there was no intentional delay. Absent a particular intent or an active, culpable knowledge, analogies to In re Colin, 337 Mich 491; 60 NW2d 431 (1953), are inapplicable. We need not decide what remedy is appropriate when authorities intentionally permit probation violations to continue.¹

We face instead a situation where defendant somehow slipped between the cracks of the law enforcement-probation-judiciary mosaic. We are somewhat skeptical of defendant’s arguments that suggest certain methods for eliminating the "cracks”. Were the system to operate as defendant suggests it should, a probationer would forfeit all privacy; the streets would be no different than a prison. That situation would be antithetical to the laudable purposes of probation. While supervision is essential to probation, constant surveillance is not.

When, as with present defendant, the system does not operate efficiently, a probationer may be equally to blame for any delays. The efficacy of probation depends substantially on a probationer’s cooperation. That defendant understood this necessity is evidenced by the stern instructions issued by the court when defendant was placed on probation in 1969.

Present defendant admittedly ceased reporting to supervisory probation officials. In fact, his furtiveness was extravagant. It appears that defendant used several different names and resided at seven different addresses during the period in question. During the 1971 guilty plea proceedings mentioned by our dissenting brother, Judge Kelly, defendant, as Jeffrey D. Eckford, flatly denied under oath that he was on probation. Given these facts, it is difficult to place all blame on the system and reward defendant for his evasiveness. We cannot be as benevolent to defendant, nor as reproachful of the public employees, as is our brother, Judge Kelly. We will not overturn the probation revocation solely because of the system’s inefficiencies. Considering the cooperative purpose of probation and the particular facts presented here, we affirm the decision of the Detroit Recorder’s Court.

We are quick to point out, however, that our affirmance must alleviate any actual prejudice suffered by defendant. The established policy of this state is that sentences are served concurrently. See, e.g., Browning v Michigan Department of Corrections, 385 Mich 179; 188 NW2d 552 (1971). Had defendant’s probation been revoked in a timely manner, his sentence would have run concurrently with the 1971 sentence received for attempted breaking and entering. Accordingly, he should be given credit for time served for the 1971 conviction, in addition to the credit already given by the sentencing judge. Cf., People v Hallaway, 39 Mich App 74, 76; 197 NW2d 335 (1972).

Affirmed, with modification of sentence.

R. M. Maher, P. J., concurred.

1 The first Diamond panel, 59 Mich App 581; 229 NW2d 857 (1975), by phrasing the remand order in terms of a "waiver”, seemed more concerned with intentional behavior of probation officials.