Opinion
Docket No. 78-4453.
Decided October 2, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert T. Monk, Assistant Prosecuting Attorney, for the people.
Terry Bradfield, for defendant.
Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.
On June 21, 1974, defendant was jury-convicted of unlawful possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a) and subsequently sentenced to three years probation. At the time of sentencing, he was not orally informed of his right to appeal, although he did sign a written form acknowledging that right. Later, at a probation violation hearing, the trial judge reviewed the record with defendant and counsel and extended his right to appeal 60 additional days from September 28, 1978. Defendant promptly filed this appeal.
Extending the appellate period was permissible in this case because of delayed rulings made by the trial judge on the original conviction as well as on the probation violation of September 28, 1978. Normally, an appeal from a probation violation is limited to matters surrounding that violation. People v Pickett, 391 Mich. 305; 215 N.W.2d 695 (1974). However, since there was no oral notification of defendant's right to appeal the original conviction, it is permissible to raise issues pertaining to that shortcoming on this probation violation appeal.
Defendant contends that resentencing is mandated because he was not orally advised of his appellate rights at the time of the original sentencing. GCR 1963, 785.11, specifically requires such notification immediately following sentencing. It appears that the rule's underlying rationale is to ensure defendants' knowledge of and access to the constitutional right of appeal. Although, as defendant rightly asserts, there was no oral instruction at the time of the original sentencing, we find that the written form signed by him then, coupled with the oral advisement on September 28, 1978, fully embodied the spirit of the notification provision.
Defendant also asserts that resentencing is necessary because a probation condition — that he co-operate in anti-drug efforts — is without authority of law. As recently noted by this Court, judges have great discretion in designing probation standards, limited only by the requirement that conditions be lawful. People v Pettit, 88 Mich. App. 203, 205; 276 N.W.2d 878 (1979). There is no ultimate catalogue of legal or illegal terms, Detroit v Del Rio, 10 Mich. App. 617, 620; 157 N.W.2d 324 (1968); each judge must decide for himself whether there is a rational relationship between the restriction and rehabilitation. Id. at 622-623, People v Higgins, 22 Mich. App. 479, 480; 177 N.W.2d 716 (1970).
In the instant case, we are unable to say that the condition of cooperating in anti-drug efforts was not rationally tailored to the defendant's rehabilitation. Such a course of action would promote defendant's withdrawal from the drug scene rather than impede it. Therefore, that condition was lawful.
Affirmed.