People v. Lawrence

282 N.W.2d 247, 90 Mich. App. 73, 1979 Mich. App. LEXIS 2136

• Court: Michigan Court of Appeals
• Decided: May 2, 1979
• Docket: Docket 78-1132
• Status: Published

Opinions

Per Curiam.

Defendant was placed on probation after pleading guilty to attempted larceny in a building, MCL 750.360, 750.92; MSA 28.592, 28.287. Two of the conditions of her probation were that defendant enter and remain at Rubicon-Odyssey House and that she participate in an educational program approved by her probation officer. Ten days after being placed on probation defendant left Rubicon-Odyssey House, apparently because the employees there were pressuring her to go to Utah to have and give up the baby she was then carrying.

The issue in this case is whether a defendant who was not represented by counsel at the revocation proceeding may seek reversal and a remand from a probation revocation proceeding where no timely notice of the charges was given to defendant but she admitted one of the charges. On the facts of this case we answer yes and remand for further proceedings.

Defendant was arrested on a bench warrant charging a violation of probation based on her refusal to stay at Rubicon-Odyssey House or participate in an educational program. Defendant was brought before the circuit court where the charges were read to her by an assistant prosecuting attorney. The record shows that no notice was served before the hearing began. After defendant was handed a copy of the charges, the court informed her of her right to counsel and her right to a hearing if she was to contest the charges. Defendant stated she would not need an attorney and admitted she had left Rubicon House. The court accepted defendant’s statement as a plea of guilty to the first charged violation of probation. The entire proceeding filled less than seven pages of transcript.

There is no doubt that a defendant is entitled to receive the statutorily required¹ notice of alleged violations sufficiently in advance of scheduled court proceedings to afford a reasonable opportunity to prepare. See, e.g., People v Gulley, 66 Mich App 112; 238 NW2d 421 (1975), lv den 396 Mich 850 (1976), People v Gillman, 71 Mich App 374; 248 NW2d 553 (1976), People v Radney, 81 Mich App 303; 265 NW2d 128 (1978). A majority of one panel has concluded that this right may be waived by admitting the violation. People v Bell, 67 Mich App 351; 241 NW2d 203 (1976), lv den 397 Mich 807 (1976).

The defendant in Bell was represented by an attorney and contested only one of two alleged violations. Even though the majority found a waiver of timely notice on one charge, the case was reversed and remanded because no timely notice had been given on the charge which was contested. Judge Danhof would have reversed and remanded on both charges for what he perceived to be a due process violation based on a lack of an intelligent waiver of the right to timely notice. 67 Mich App 351, 355.

We agree with the analysis of Judge Danhof in Bell. Although a case-by-case analysis provides little guidance for trial courts, it does allow this Court to identify possible abuses in an area which has such great significance to individual defendants. The present case is indicative of a problem greater than merely failing to serve timely notice. The defendant here appeared in court without an attorney,² was read the notice of violation, handed a copy of that document and then asked to plead. Still expressing concern over her unborn child, she admitted facts which would constitute a violation of probation. A reading of the transcript can lead to no other conclusion than that she did not understand the significance of what she was doing. In short, the implied waiver of timely notice was not intelligently or voluntarily given.

Neither this Court nor the Supreme Court has found it necessary to impose a check list of rights for probation revocations on the circuit courts. People v Rial, 399 Mich 431; 249 NW2d 114 (1976). We do not intend to do so here. However, we are not required to affirm a proceeding which appears unjust. The defendant did not waive her right to timely notice of the charges by admitting one of the violations on the facts presented by this record. A lack of notice vitiated the voluntariness and intelligence of the subsequent waivers of the right to counsel and the right to a hearing.

The order revoking defendant’s probation is set aside and this cause is remanded to the trial court without prejudice to conduct a proper hearing or other proceedings after defendant is again given timely notice of the alleged violation.

1 MCL 771.4; MSA 28.1134.

2 The trial court’s warnings were apparently sufficient to avoid reversal on that score alone. People v Rial, 399 Mich 431; 249 NW2d 114 (1976).