Jesseph v. People , 164 Colo. 312 ( 1967 )

Mr. Justice Pringle

delivered the opinion of the Court.

Plaintiff in error, hereinafter referred to as Jesseph, is here on a writ of error directed to a judgment of the district court denying relief sought by him under Colo. R. Crim. P. 35(b).

On November 20, 1961, Jesseph pleaded guilty to a charge of forgery and was thereafter placed on probation for two years. As one of the conditions of probation Jesseph was required to make restitution. On January 23, 1964, just six days before the probation period was to expire, the court ex parte and without notice to Jesseph continued his probation for another year. The action of the court was based solely on the statement of the probation officer that Jesseph had not yet made complete restitution. At that time, Jesseph was in New Mexico, having been permitted to go there by order of the court, where he was under the supervision of the New Mexico probation authorities. The record does not show that any notice of the extension of the probation period was communicated to Jesseph.

Thereafter, Jesseph was returned for violation of the conditions of his probation, the violation having occurred after the time when the original probation order would have expired. After a hearing the court revoked Jesseph’s probation and imposed sentence of not less than four years nor more than five years in the State Penitentiary.

After serving some time in the penitentiary, Jesseph filed a motion under Colo. R. Crim. P. 35(b) requesting the trial court to set aside his sentence as having been erroneously imposed. The trial court denied the motion without an evidentiary hearing. Jesseph contends that an extension of probation ordered without a hearing thereon is void and that therefore his probationary period expired before he committed the acts for which his probation was revoked. We do not agree.

While better practice dictates that a hearing be held before a probationary period is extended, there is no constitutional requirement for such a hearing. See Escoe v. Zerbst, 295 U.S. 490, 79 L.Ed. 1566, 55 S.Ct. 818. Nor does the statute dealing with extensions of probation require such a hearing. C.R.S. 1963, 39-16-6.

But while the order extending probation in this case is not invalid solely because there was no hearing on the extension of the probationary period, the trial court should have held an evidentiary hearing to determine whether Jesseph had notice of the extension of his probation before he committed the acts upon which the revocation of probation was based.

In our view, a trial judge has no power to impose sentence upon the basis of a violation of the conditions of his probation in the absence of any notice to the probationer that his probation had been extended beyond the original period. Conditions imposed upon probation are many and varied. Very often, they do not constitute violations of the law per se, e.g., they may require that the probationer report every change of address, or account for his activities each week. To permit a trial court to impose a sentence to the penitentiary because of violations of probation, when the defendant had no notice that these conditions were still in existence, violates our concept of fundamental fairness and due process.

We have been informed that Jesseph has now served his sentence and has been released from the penitentiary. Under such circumstances it may be that Jesseph might not desire an evidentiary hearing on his 35(b) petition with respect to whether or not he had notice of the extension.

The judgment of the trial court is therefore reversed with directions to grant Jesseph an evidentiary hearing consistent with the views herein expressed, should Jesseph so elect within ten days from the date of the remand in this matter.

Mr. Chief Justice Moore and Mr. Justice McWilliams dissent.