Moore v. United States , 428 A.2d 364 ( 1981 )

KELLY, Associate Judge,

concurring in the result:

I agree that appellant was afforded due process of law at the show cause hearing where he was ordered to serve two years of supervised probation. The procedures were fair and the court acted within its authority. See Colter v. United States, D.C.App., 392 A.2d 994 (1978).

Appellant had originally been placed on probation conditioned on his (1) reporting regularly to a probation officer for counseling; (2) being involved in no further violations of law; and (3) submitting to an examination by the Forensic Psychiatric Service of the court, and if recommended, undergoing psychiatric or psychological treatment.¹ The order of probation was stayed pending disposition of his appeal to this court. Appellant’s conviction and sentence were affirmed. Moore v. United States, D.C.App., 387 A.2d 714 (1978).

The order granting appellant a stay pending appeal demonstrates that the trial court intended appellant to begin his probation immediately upon affirmance by this court. Nevertheless, despite indications that appellant failed to do so, the trial court refrained from taking action for a time out of consideration for the fact that appellant was engaged in political campaigns and to avoid inconveniencing appellant’s attorney, who was engaged in a lengthy trial in the United States District Court. When, in response to an order to show cause why appellant’s probation should not be revoked, a hearing was finally held on October 10, 1979,² the trial court found appellant had not complied with the terms of his probation, but decided not to reimpose the prison sentence. Instead, the period of appellant’s probation was “extended” for two years from the hearing date, with the same three conditions originally imposed.³

Modification or revocation of probation is a matter of judicial discretion, and the trial court’s discretionary decision will not be overturned unless that discretion has been abused. Jones v. United States, D.C.App., 401 A.3d 473 (1979). Probation statutes are broadly drawn and must necessarily lend themselves to flexibility, Wright v. United States, D.C.App., 315 A.2d 839 (1974), and appellant shoulders a heavy burden in attempting to convince this court to reverse.

Appellant was originally sentenced to six months of imprisonment. At that time, the trial court determined the interests of justice and the community would best be served by having appellant complete two years of probation with its attendant conditions. At the show cause hearing, the court found appellant had not yet started to comply with the requirements of his probation. I agree, therefore, that whether that failure was willful or the result of confusion, there was no abuse of discretion in the trial court’s insisting that appellant finally fulfill his probation obligation.

1 . Later, the trial judge, when advised, as he should have been, by Probation Officer James Watts that the Forensic Psychiatric Service, a part of the District of Columbia Government, was unwilling to conduct the examination and evaluation because appellant was at that time a member of the City Council, ordered that the required examination be performed by the staff at St. Elizabeths Hospital. I am confident that had the trial judge wished to enforce the original order, he was perfectly capable of doing so without any outside assistance.

2 . The court refused to grant appellant’s motions for a continuance of the October 10 hearing. Recognizing that a court’s rigid insistence upon expedition of the cause in the face of a justifiable request for a delay can render the right to defend an empty formality, Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), we have nevertheless held that a party seeking a continuance must make a showing a postponement is “reasonably necessary for a just determination of the cause,” and the grant or denial of the motion is a matter of the trial court’s discretion, not subject to reversal absent a clear abuse of discretion. Brown v. United States, D.C.App., 244 A.2d 487 (1968). This record demonstrates no abuse of discretion in denying a continuance. Appellant proffered no testimony relevant to the issue before the court. Moreover, a party seeking a continuance to obtain witnesses must show that due diligence had been used to obtain their attendance. O’Connor v. United States, D.C.App., 399 A.2d 21, 28 (1979). No such showing was made here.

3 . D.C. Code 1973, § 24-104, reads as follows:

Upon the expiration of the term fixed for such probation, the probation officer shall report that fact to the court, with a statement of the conduct of the probationer while on probation, and the court may thereupon discharge the probationer from further supervision, or may extend the probation, as shall seem advisable. At any time during the probationary term the court may modify the terms and conditions of the order of probation, or may terminate such probation, when in the opinion of the court the ends of justice shall require, and when the probation is so terminated the court shall enter an order discharging the probationer from serving the imposed penalty; or the court may revoke the order of probation and cause the rearrest of the probationer and impose a sentence and require him to serve the sentence or pay the fíne originally imposed, or both, as the case may be, and the time of probation shall not be taken into account to diminish the time for which he was originally sentenced. [Emphasis supplied.]