Opinion
No. 77-552
Decided August 10, 1978. Rehearing denied August 31, 1978.
From trial court order revoking his probation and denying his motion challenging the legality of the sentence entered following that revocation, defendant appealed.
Affirmed
1. CRIMINAL LAW — Probation — Revocation — Alternative Grounds — Absence of Finding — Ability to Make Restitution — Not Invalidate — Court's Order. Where, in revocation of probation proceeding, an alternative to defendant's failure to make restitution existed; namely, his failure to report to his probation officer, and where the trial court stated that these other grounds could serve as an ample basis for revoking defendant's probation, the absence of a finding as to defendant's present ability to pay did not vitiate the validity of the court's order revoking defendant's probation.
2. Probation — Revocation Hearing — Held on Friday — Revocation Order — — Next Friday — Order Entered — Within Required Period. Where the hearing at which the trial court determined that defendant had violated the conditions of his probation was held on a Friday and the order revoking his probation was entered on the next following Friday, excluding the "intermediate Saturdays, Sundays, and legal holidays," as is directed by the rules of procedure, leads to the conclusion that the order was entered within the five day period specified by the statute.
3. Probation — Revocation — Delay — Initiating Charges — Circumstances — — No Denial — Due Process. Although a delay in initiating charges may so prejudice a defendant as to violate his rights to due process, where probation officer testified that he did not initiate charges of violation of probation for some 10 months in order to give the defendant a chance to comply with the conditions of his probation, there was no denial of due process.
Appeal from the District Court of El Paso County, Honorable Hunter D. Hardeman, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Lynne Ford, Assistant Attorney General, for plaintiff-appellee.
John A. Purvis, Acting State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, for defendant-appellant.
Defendant pled guilty to felony theft, and he was placed on probation for a period of five years. Thereafter he was charged with having violated the conditions of his probation by failing to report to his probation officer and by failing to make restitution. After a hearing, the defendant's probation was revoked, and he was sentenced to serve an indeterminate term not to exceed three years in the state penitentiary. He brings this appeal from the order revoking his probation and from an order denying his Crim. P. 35(a) motion challenging the legality of his sentence.
Relying on People v. Romero, 192 Colo. 106, 559 P.2d 1101 (1976) and People v. Silcott, 177 Colo. 451, 494 P.2d 835 (1972), the defendant first contends that the trial court erred in revoking his probation without making a finding as to the defendant's present ability to pay restitution.
[1] Admittedly the defendant failed to report to his probation officer as required by the conditions of his probation, and the trial court expressly found that "there are ample grounds for revocation over and above, whether he [the defendant]was able or not able to make restitution . . . ." Thus, regardless of whether or not the defendant violated the condition of his probation relating to restitution, revocation of his probation was justified. See State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976); cf. State v. Rivera, 116 Ariz. 449, 569 P.2d 1347 (1977).
The defendant next contends that the trial court erred in entering the order revoking his probation more than five days after the hearing at which the court determined that he had violated the conditions of his probation. In support of this contention the defendant cites § 16-11-206(5), C.R.S. 1973, which provides as follows:
"If the court determines that a violation of a condition of probation has been committed, it shall within five days after the said hearing either revoke or continue the probation."
Crim. P. 32(g)(5) contains language identical to the above-quoted statute. And Crim. P. 45(a) provides that: "When a period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."
[2] In the present case the hearing at which the trial court determined that the defendant had violated the conditions of his probation was held on Friday, April 22, 1977, and the order revoking defendant's probation was entered on Friday, April 29, 1977, the seventh day thereafter. However, excluding "intermediate Saturdays, Sundays, and legal holidays," the order revoking probation was entered within five days of the revocation hearing. Thus, in our view the time limitation prescribed in § 16-11-206(5), C.R.S. 1973, was complied with, and the assertion of the defendant to the contrary is without merit.
The defendant also contends that the trial court erred in denying his motion to dismiss on the ground that the defendant had been denied his right to a speedy prosecution. He argues that the delay between the time he stopped making restitution payments and stopped reporting to his probation officer and the time the complaint was filed by his probation officer was excessive and violated his right to due process.
The defendant made his last restitution payment on August 14, 1973, and reported to his probation officer on only one occasion after April 23, 1974. The complaint charging the defendant with having violated the conditions of his probation was not filed until June 6, 1976.
[3] The Sixth Amendment speedy trial provision does not apply to a delay in initiating charges. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, a delay in initiating charges may so prejudice a defendant as to violate his rights to due process. See People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975); United States v. Marion, supra.
The defendant does not contend that the delay impaired his ability to defend against the charges relating to his violation of probation; rather, he argues that he was prejudiced because he was under the restrictions of probation during the period of delay.
The trial court found, in effect, that the probation officer delayed the filing of the complaint in order to give the defendant a chance to comply with the conditions of his probation. Given these circumstances, we do not feel that the delay in filing the complaint violated the defendant's right to due process. Cf. People v. Wilkerson, 189 Colo. 448, 541 P.2d 896 (1975); Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976).
Judgment affirmed.
JUDGE COYTE and JUDGE BERMAN concur.