People v. Laurent , 171 Mich. App. 503 ( 1988 )

171 Mich. App. 503 (1988) 431 N.W.2d 202

PEOPLE
v.
LAURENT

Docket No. 103422.

Michigan Court of Appeals.

Decided June 22, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David A. Hogg, Prosecuting Attorney, and Charles D. Hackney, Assistant Attorney General, for the people.

State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.

Before: HOOD, P.J., and CYNAR and R.B. BURNS,^[*] JJ.

PER CURIAM.

On July 29, 1985, defendant Greg Laurent pled guilty to delivering two grams of cocaine. MCL 333.7401(1) and (2)(a)(iv); MSA 14.15(7401)(1) and (2)(a)(iv). He was placed on four years probation with the first year to be served in the county jail. On May 7, 1987, after being charged, defendant admitted to violating a condition of probation. On May 21, 1987, the court imposed a sentence of from five to twenty years in prison. Defendant appeals as of right.

Defendant contends that he is entitled to a new probation revocation and sentencing hearing because the trial court considered conduct which was not charged in the petition for probation violation in determining to revoke probation.

The facts are not in dispute. At the probation violation hearing, defendant admitted to the charged probation violation of having used cocaine. Defense counsel requested an adjournment prior to final disposition, and the court noted that it had not reached a point relative to final disposition. The court made neither a ruling on the admitted violation of probation nor a determination to revoke probation. On May 21, 1987, at the beginning of the sentencing proceeding, the court again made no ruling on the admitted violation of probation nor a determination to revoke probation. Defense counsel offered evidence in mitigation of the admitted probation violation. Before imposing a prison sentence, the court made lengthy remarks concerning both the probation violation conduct as well as other conduct which was not included in the petition alleging that defendant violated the terms of his probation.

As a matter of due process of law, probation revocation in Michigan consists of the following procedure: (1) a factual determination that a defendant is in fact guilty of violating probation, and (2) a discretionary determination of whether the violation warrants revocation. People v Rocha, 86 Mich. App. 497, 502; 272 NW2d 699 (1978), lv den 406 Mich. 944 (1979). After the court finds probation was violated, it has discretion to decide whether to continue or revoke probation. Id.

Conduct which is not charged in the petition alleging probation violation should not be considered in determining whether there has been a violation of probation. People v Graber, 128 Mich. App. 185, 193; 339 NW2d 866 (1983), lv den 419 Mich. 880 (1984); People v Banks, 116 Mich. App. 446; 323 NW2d 436 (1982); People v Longmier, 114 Mich. App. 351; 319 NW2d 579 (1982).

The Michigan Court Rule dealing with probation revocation provides, in relevant part:

(D) Revocation Hearing.

* * *

(4) In deciding whether a violation has occurred, the court shall consider only evidence which relates to the charge and shall comply with MCR 2.517(A).

(E) Pleas of Guilty.

(1) A probationer may plead guilty at arraignment or thereafter to the violation as charged with the consent of the court that granted probation.

(2) Before the court accepts a guilty plea, it shall, speaking directly to the probationer and receiving the probationer's response,

* * *

(d) establish support for a finding that the probationer is guilty of the violation charged.

(F) Sentencing. If the court finds that the probationer has violated the conditions of probation or that the probationer has pled guilty to the violation as charged, the court may continue probation, modify the conditions of the existing probation, extend the probation period, or impose a jail or prison sentence. If the court revokes probation, the court may not impose a prison sentence on the probationer until it has received a current presentence report and complied with MCR 6.101(G). [MCR 6.111.]

Only the conduct charged in the petition may be used to determine if there is a violation of probation. Further, if the court finds that the probationer has violated a condition of probation, only the conduct charged in the petition may be considered in deciding whether probation should be revoked as a result of the charged violation. Graber, supra, p 193.

In the matter before us, the court did not specifically decide whether a violation had occurred or whether probation had been revoked. It might be concluded otherwise since a prison sentence was imposed. However, a problem exists even if there is no dispute that the defendant violated probation or probation was revoked. It is not clear on what basis probation was revoked. Because the charged and admitted probation violation is so blended with the uncharged conduct, we are not able to ascertain the basis of the probation revocation.

For reasons stated in this opinion, we reverse and remand for a new probation violation hearing. Defendant's sentence is vacated. We do not retain jurisdiction.

Reversed and remanded.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.