Opinion
Docket No. 19754.
Decided May 29, 1975. Leave to appeal denied, 394 Mich. 841.
Appeal from Genesee, Philip C. Elliott, J. Submitted Division 2 May 13, 1975, at Lansing. (Docket No. 19754.) Decided May 29, 1975. Leave to appeal denied, 394 Mich. 841.
James T. Cammon was convicted, on his plea of guilty, of armed robbery and he was placed on probation. Probation revoked. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Elaine Dierwa Fischhoff, Assistant Prosecuting Attorney, for the people. Richard M. Barron, for defendant on appeal.
Before: QUINN, P.J. and BRONSON and N.J. KAUFMAN, JJ.
December 4, 1972, defendant pleaded guilty to assault with intent to rob being armed, MCLA 750.89; MSA 28.284. The plea was conditioned on the trial court's acceptance of a probation department recommendation that defendant be sentenced to a combination of probation and probation camp confinement under the youthful offender provisions of MCLA 771.3a; MSA 28.1133(1).
The trial court accepted the plea as so conditioned and sentenced defendant to three years probation, the first year to be spent at a probation camp. January 16, 1973, defendant was sent to Camp Pugsley. August 2, 1973, defendant was expelled from the camp for various acts of misconduct and was returned to the Genesee county jail.
Probation officials petitioned for a bench warrant and a probation revocation hearing. A copy of the petition was served on defendant. The stated reason for the requested revocation was "he (defendant) was expelled from Camp Pugsley".
Prior to a hearing on this charge, the trial court appointed counsel for defendant on August 15, 1973. Subsequently, the judge conferred on the record with the appointed attorney and set the date for the revocation hearing only after assuring himself that both the defense and the prosecution would have adequate time to prepare.
The revocation hearing was held on August 30, 1973. Several Camp Pugsley officials were brought to Flint and testified to the details of the defendant's misconduct. The defendant's attorney cross-examined these witnesses effectively. There was no objection at the time to the inadequacy of the notice of charges. After hearing the evidence, the trial judge revoked the probation and sentenced the defendant to prison. One term of defendant's probation order read as follows:
"To spend first year in probation camp and to be confined in county jail until transferred. If unable to transfer to spend first six months in county jail, with credit for time already spent in jail."
The order contained the usual provision "if said respondent does not comply with the provisions of this order then he may be brought into this court and sentenced".
A provision of MCLA 771.3a reads:
"A violation by the probationer of the rules and regulations of the department shall constitute sufficient grounds for the revocation by the court of its probation order in such case and for the sentencing of the probationer for the offense for which he was originally convicted and placed on probation."
MCLA 771.4; MSA 28.1134 governs revocation of probation and provides in part:
"Provided however, That the probationer shall be entitled to a written copy of the charges against him which constitute the claim that he violated his probation, and shall be entitled to a hearing thereon."
On appeal, defendant first contends that the revocation proceedings did not comply with MCLA 771.4, supra, because the charge "expelled from Camp Pugsley" was inadequate notice of the charges against him. Defendant asserts the notice of charges against him must include those charges for which he was expelled.
We cannot accept this argument. Defendant was ordered to remain at a probation camp for one year. He did not because of his expulsion. Specification of the expulsion was adequate notice of the charge against him for which revocation of probation was sought. The inquiry then was the basis for the expulsion.
We find full compliance with MCLA 771.4, supra, and that none of defendant's rights were violated.
Relying on 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), defendant claims he was entitled to a preliminary notice and hearing. Neither case involved a defendant who was already in the physical custody of the authorities as was Cammon. Both cases are inapposite.
Affirmed.