People v. Brown , 17 Mich. App. 396 ( 1969 )

17 Mich. App. 396 (1969) 169 N.W.2d 522

PEOPLE
v.
BROWN

Docket No. 4,947.

Michigan Court of Appeals.

Decided May 27, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Jack L. Winter and Robert J. Stephan, Assistant Prosecuting Attorneys, for the people.

Charles Sylvester Brown, in propria persona.

BEFORE: FITZGERALD, P.J., and LEVIN and T.M. BURNS, JJ.

PER CURIAM:

The defendant's probationary sentence was revoked at a hearing during which he was not offered or represented by counsel.

Mempa v. Rhay (1967), 389 U.S. 128 (88 S. Ct. 254, 19 L. Ed. 2d 336) requires that the court advise one accused of probation violation of his right to be represented by counsel and, if indigent, to the appointment of assigned counsel if the violation hearing includes sentencing. That holding applies retroactively. McConnell v. Rhay (1968), 393 U.S. 2 (89 S. Ct. 32, 21 L. Ed. 2d 2); People v. Marshall (1969), 16 Mich. App. 578.

The revocation of the defendant's probation and sentence to prison is set aside and the cause is remanded for a hearing on the probation violation charge at which the defendant shall be advised of his right to be represented by counsel and, if indigent, to the appointment of assigned counsel.