Opinion
No. 2 CA-CR 314.
July 19, 1973. Rehearing Denied August 21, 1973.
Appeal from an order of the Superior Court, Pima County, Cause No. 20580, John P. Collins, J., revoking probation and sentencing defendant to a term of imprisonment. The Court of Appeals, Krucker, J., held that refusal to allow defense counsel to cross-examine probation officer in proceeding to revoke defendant's probation was not violative of due process under law then existing.
Affirmed.
Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.
Alan Silverman, Tucson, for appellant.
The appellant, Robert L. Williams, had entered a plea of guilty to the criminal offense of possession of a pistol by a convicted felon. He was placed on probation for a period of three years on April 6, 1972. A petition for revocation of probation was filed and a hearing was held June 29, 1972.
The sole question presented is whether the trial judge erred in refusing to allow defendant's attorney to cross-examine the probation officer.
We have examined the transcript of the hearing on the revocation of probation and find that the defendant was represented by counsel and had been fully advised of his rights.
This court has passed on the question of cross-examination and has held that there is no right to cross-examine the probation officer at a revocation of probation hearing. State v. Walter, 12 Ariz. App. 282, 469 P.2d 848 (1970). In the Walter case, Judge Hathaway stated:
"We believe that the appellant was afforded his full constitutional rights, and find no basis in the contention that the denial of his right to cross-examine the probation officer violated his due process." 469 P.2d at 850.
In State v. Hulon, 16 Ariz. App. 429, 493 P.2d 1234 (1972), this court again held that the denial of the accused's right to cross-examine the probation officer was not a violation of due process of law.
On the same day as this hearing, the United States Supreme Court decided Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which set forth certain minimum requirements of due process in the revocation of parole. The court in Morrissey specifically stated that the rules enunciated applied to future parole revocation hearings. The application of Morrissey is prospective only and does not apply to the case sub judice. State v. Settle, 20 Ariz. App. 283, 512 P.2d 46 (filed July 12, 1973).
The procedure set forth in Morrissey is applicable to probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Marlar, 20 Ariz. App. 191, 511 P.2d 204 (filed June 28, 1973).
Our review of the record discloses that the proceedings were conducted in accordance with the law as it existed prior to
Morrissey and Gagnon. See, State v. Hunt, 13 Ariz. App. 267, 475 P.2d 752 (1970) and State v. Walter, 12 Ariz. App. 282, 469 P.2d 848 (1970).
We are mindful of the holding in State v. Madrid, 20 Ariz. App. 51, 510 P.2d 50 (1973), but this case was also decided after Morrissey and would thus come under the rule set out in those two opinions.
The order revoking probation and the sentence are affirmed.
HATHAWAY, C.J., and HOWARD, J., concur.