Summary
In Miller, supra, p 384, this Court stated that to determine whether the authorities exercised due diligence, it is appropriate to consider the length of the delay, the reason for the delay, and the prejudice to the defendant.
Summary of this case from People v. OrtmanOpinion
Docket No. 28814.
Decided August 9, 1977.
Appeal from Recorder's Court of Detroit, Joseph A. Gillis, J. Submitted June 13, 1977, at Detroit. (Docket No. 28814.) Decided August 9, 1977.
Buford Miller, on his plea of guilty, was convicted of attempted receiving and concealing stolen property over the value of $100, and placed on probation. Probation was subsequently revoked, and defendant sentenced to prison. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training and Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Lawrence B. MacDonald, for defendant.
On November 29, 1974, defendant was placed on 2 years probation after pleading guilty to attempted receiving and concealing stolen property over the value of $100. MCLA 750.535, MCLA 750.92; MSA 28.803, MSA 28.287. On March 6, 1975, the police executed an authorized search warrant at 2557 Fairview in Detroit where they found defendant and confiscated certain items. As a result of this search, on April 24, 1975, a warrant was issued for defendant's arrest for violation of the controlled substances act. At the arraignment on this charge on June 10, 1975, a preliminary exam was set for June 18, 1975.
A notice of probation violation and warrant were issued on June 17, 1975. At the June 19, 1975 arraignment on this warrant, a probation revocation hearing was set for June 25, 1975. Between June 19 and November 7, 1975, defense counsel was granted two continuances. On November 7, 1975, when the hearing was finally held, the court found defendant had violated the terms of his probation and revoked it. Defendant was then sentenced to 1-1/2 to 2-1/2 years in prison on the original attempted receiving and concealing stolen property conviction. Defendant appeals from the order revoking his probation. We affirm.
Three issues are raised on appeal. Defendant first contends that the delay between the incident violating probation, the notice of violation and the hearing constituted a denial of due process since the authorities failed to act with "due diligence". The event violating probation occurred March 6, 1975; the notice of probation violation and warrant were issued on June 17, 1975; and the revocation hearing took place on November 7, 1975.
This Court has held that a warrant for an alleged probation violation must be executed with due diligence and that failure on the part of the authorities to proceed with due diligence results in a waiver of the violation. People v. Henry, 66 Mich. App. 394; 239 N.W.2d 384 (1976), People v. Diamond, 59 Mich. App. 581; 229 N.W.2d 857 (1975). In the instant case, we cannot find a lack of due diligence on the part of the authorities.
The 5-month delay between the notice of probation violation on June 17 and the revocation hearing on November 7 was attributable to defendant or was for his benefit. This undermines the validity of defendant's claim as to lack of due diligence during the 5-month period. People v. Collins, 388 Mich. 680; 202 N.W.2d 769 (1972), People v. Butcher, 46 Mich. App. 40; 207 N.W.2d 430 (1973).
To ascertain whether the authorities exercised due diligence between the incident allegedly violating probation and the issuing of the probation violation notice, we consider it appropriate to refer to the guidelines established by our Supreme Court in the speedy trial cases. In People v. Collins, supra, the Court cited the factors to be taken into account in deciding whether a defendant has been deprived of his right to a speedy trial, three of which are relevant here: length of delay, reason for delay and prejudice to the defendant.
The delay from the date of the incident to arraignment on the probation violation notice was 3-1/2 months. This Court has, in various circumstances, approved delays of from 6 months, People v. Henry, supra, to 3 years, People v Diamond, 70 Mich. App. 512; 245 N.W.2d 809 (1976). Because the warrant in the narcotics case was not issued until April 24, 1975 and the preliminary examination thereon set for June 18, 1975, it was not unreasonable to wait to issue the probation violation notice until June 17. Delaying the proceedings on the probation violation, which was based on the commission of another crime, until after the probable cause hearing for the other crime was not only reasonable but to defendant's benefit. Defendant alleges no prejudice from the delay. He was free on bond during the entire period. We are unable to conclude that the authorities did not exercise due diligence.
Defendant's second assertion is that he was denied due process because he did not receive a preliminary probable cause hearing in the matter of his probation revocation. The due process standards of Morrissey v. Brewer, 408 U.S. 471; 92 S.Ct. 2593; 33 L Ed 2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778; 93 S.Ct. 1756; 36 L.Ed.2d 656 (1973), are satisfied by Michigan's single revocation hearing procedure if that hearing is held sufficiently close in time to the notice of probation violation. People v Blakely, 62 Mich. App. 250; 233 N.W.2d 523 (1975), People v. Leroy Jackson, Jr., 63 Mich. App. 241; 234 N.W.2d 467 (1975), People v Hardenbrook, 68 Mich. App. 640; 243 N.W.2d 705 (1976). Defendant's hearing, as originally scheduled, was sufficiently close in time to comport with due process standards. Subsequent delays were due solely to adjournments requested by defense counsel.
In addition, since defendant was free on bond and alleges no prejudice as a result of the delay, we find no due process violation. Cf. United States v. Sciuto, 531 F.2d 842 (CA 7, 1976), and Callison v. Department of Corrections, 56 Mich. App. 260; 223 N.W.2d 738 (1974).
Finally, this Court observed in People v. Leroy Jackson, Jr., supra, that several jurisdictions have held there are certain situations in which a preliminary hearing for probation revocation need not be held although due process standards will still be met. 63 Mich App at 245-246, fn 7. One of these situations occurs when the conduct which constitutes a prima facie probation violation is also an independently charged new felony. The procedures afforded through the holding of a probable cause hearing on the new felony could have been merged with the preliminary revocation hearing to satisfy the due process requirements of Morrissey and Gagnon, had the defendant been given appropriate notice of the nature and effect of a hearing intended to serve this dual purpose. See People v. Gladdis, 77 Mich. App. 91; 257 N.W.2d 749 (1977), In re Law, 10 Cal.3d 21; 109 Cal.Rptr. 573; 513 P.2d 621 (1973).
Defendant's last claim of error is that there were not sufficient verified facts presented at his probation revocation hearing from which the court could find that he had violated his probation order. The notice of probation violation issued June 17, 1975, stated:
"3. That the conditions of probation were as follows:
"(1) Probationer shall not violate any criminal law of the State of Michigan or any ordinance of any municipality of the State.
* * *
"4. That BUFORD MILLER has violated the terms of his probation as follows:
"Defendant has been arrested on a charge of V.C.S.A. — Docket # 75-03056; Examination will be 6-18-75. On 3-6-75 Wayne County Metropolitan Narcotics officers executed a search warrant at 2557 Fairview. This premise is occupied by the defendant, Buford Miller. Found in the private residence was defendant Miller, as well as narcotics paraphernalia and narcotics."
In a probation revocation hearing the standard of proof to be applied is a preponderance of the evidence. People v. Billy Williams, 66 Mich. App. 67; 238 N.W.2d 407 (1975). At the hearing on November 7, 1975, the court made a finding of possession of narcotics paraphernalia. Possession of narcotics paraphernalia is a violation of a Detroit ordinance, Detroit Municipal Code, § 28-8-1, of which this Court takes judicial notice. The evidence at the hearing included testimony from one of the officers who executed the search warrant, as well as pictures of the paraphernalia, including a heat sealing device, two plastic bags, narcotics records, straws, guns and lactose mix. The officer testified, in accord with the informal procedures of a probation revocation hearing, that defendant had stated that a briefcase which contained much of the narcotics paraphernalia belonged to him; that confiscated bills and papers disclosed that defendant lived on the premises; and that defendant's father had said defendant lived there.
There is difficulty with the officer's testimony as to the amount of heroin found on the premises in light of the subsequent motion for dismissal of the controlled substances charge which stated that the amount of heroin found was .04 grams, not .4 grams as the officer testified at the hearing. This difficulty is compounded by the action of the trial court in cutting off defense counsel's cross-examination of the officer concerning heroin found on the premises.
However, any error committed by the trial court in this matter is not reversible. Based on the other evidence presented at the hearing, we conclude that there was sufficient support for the trial judge to find by a preponderance of the evidence that the items found were narcotics paraphernalia which belonged to defendant and that because of such possession he had violated his probation order.
Affirmed.