People v. Higgins

177 N.W.2d 716, 22 Mich. App. 479, 1970 Mich. App. LEXIS 2005

• Court: Michigan Court of Appeals
• Decided: March 24, 1970
• Docket: Docket 6,127
• Status: Published

Opinions

T. M. Burns, J.

On March 18, 1968, defendant entered a plea of guilty in the Washtenaw County circuit court to the charge of breaking and entering an occupied dwelling.

* After a presentence investigation was completed and a report submitted, the trial judge sentenced the defendant on August 9, 1968 to five years’ probation. Besides the usual conditions of probation, the trial judge imposed as an additional condition of probation that defendant was not permitted to play either college or professional basketball during the period of probation without the court’s consent.

Defendant on appeal asserts that this condition is invalid.

The defendant, a college basketball player of no small ability, is in school on an athletic scholarship which he would lose if he were not permitted to play. The people assert that since the trial court gave its permission for the defendant to play ball for his college, some seven months after the probation order, the question is now moot. Wé do not find it thus since such play as well as any possible professional offer is contingent on the court’s approval. Neither do we find that the defendant’s agreement to abide by such a probation provision waives his right to appeal and challenge the legality of the provision, as the people suggest. The defendant could understandably have believed that if he did not accept the probationary terms set down by the trial judge, the offer of probation would be revoked and he would be sent to jail. See People v. O’Hara (1879), 41 Mich 623, 624. Compare People v. Mulier (1968), 12 Mich App 28.

Although the trial court need not have granted probation in this, or any other case, once he decides to order probation rather than imprisonment the conditions he imposes on such probation must be lawful. MCLA § 771.3 (Stat Ann 1969 Cum Supp § 28.1133). See People v. Becker (1957), 349 Mich 476; People v. Baum (1930), 251 Mich 187; People v. Smith (1930), 252 Mich 4.

This Court said in City of Detroit v. Del Rio (1968), 10 Mich App 617, 620:

“It would serve no useful purpose to attempt to catalogue what may he ‘other lawful conditions of probation.’ The Court is not disposed to attempt what the legislature has avoided, and it is clear that considerable latitude is intended for the trial judge in imposing the conditions he may deem pertinent to the offense and appropriate to the rehabilitation of the offender.”

The trial judge stated no reason for the restriction, nor have the people explained how this restriction might be related to the defendant’s rehabilitation. On the other hand, the defendant has persuasively shown that the restriction on playing basketball is more likely to impede than to promote his rehabilitation. As no rational reason has been suggested in justification and as it appears that the restriction is more likely to impede rehabilitation than promote it, we conclude that it is not a “lawful provision” within the meaning of the statute.

Consequently, we reverse the trial court to the extent of this illegal provision, numbered 12 on the probation order.

Reversed.

Levin, P. J., concurred.

MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).