People v. Tebedo
People v. Tebedo
Opinion of the Court
On December 17, 1973, defendant pled guilty to a charge of assault with intent to rob while armed, MCL 750.89; MSA 28.284. He was subsequently sentenced to three years probation, with the first year to be spent in the county jail. While on probation, defendant was charged with armed robbery, MCL 750.529; MSA 28.797. He was convicted at a jury trial and sentenced to a prison term of from 30 to 40 years. After the armed robbery conviction, defendant was charged with violating his probation. Defendant was charged with violation of the statutory term prohibiting him from violating any criminal law of the State of Michigan. The formal charges stated both that defendant had committed the armed robbery and had been convicted thereof. On April 27, 1976, defendant was found in violation of his probation, based solely on his admission that he had been convicted of the armed robbery charge. Defendant did not admit to having been involved in an armed robbery nor were any witnesses presented to substantiate the charge. The trial court then revoked defendant’s probation and sentenced him to a prison term of from 26-1/2 to 40 years on the assault with intent to rob while armed conviction.
Meanwhile, defendant appealed his armed robbery conviction and this Court reversed, holding that certain statements made by the defendant should have been suppressed as the fruits of an illegal arrest. People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978). The case was remanded for a new trial which has been adjourned on several occasions pending the outcome of the instant appeal. As a result of the reversal of his armed robbery conviction defendant moved to set aside his guilty plea to the probation violation charge.
On appeal, defendant argues that the trial court erred in refusing to set aside the finding that he had violated his probation where the conviction on which that finding was based was subsequently reversed. This question has not been extensively discussed in this state. People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), lv den 402 Mich 835 (1977), appears factually similar. In Biondo, defendant was convicted of breaking and entering a business establishment while on probation from a prior conviction. As a result of the breaking and entering conviction, his probation was revoked. Defendant’s appeal to this Court involved both the breaking and entering conviction and the probation revocation. Discussing the breaking and entering conviction first, the Court reversed on the basis of improper prosecutorial argument. The Court then added, without additional discussion: "The reversal of the breaking and entering conviction of necessity means that the resulting probation violation conviction is set aside”. Id., 160.
Biondo appears to stand for the proposition that when a defendant is found in violation of his probation on the basis of a conviction for a substantive criminal offense and that conviction is subsequently reversed, the defendant is entitled to have the probation revocation reversed as well. Analysis of other probation revocation cases reveals, however, that this is not always the case. The standard of proof in a probation revocation hearing is less than in a regular criminal trial. When revocation is sought on the basis of a subsequent violation of the criminal law, there must be proof sufficient to allow the court to find by the preponderance of the evidence that defendant com
In the instant case, no testimony was taken to establish the facts underlying the armed robbery charge. Nor did defendant admit to participating in an armed robbery. The only thing defendant admitted was that he had been convicted by a jury of armed robbery. Based on this admission, the trial court revoked defendant’s probation "because he was convicted of Armed Robbery on March the 18th, 1976, in Genesee County, Michigan”. Certainly, probation may be revoked on the basis of the fact that a defendant has been convicted of a subsequent criminal offense. Evidence of the con
To summarize, the subsequent reversal of a criminal conviction on which a probation revocation is based does not require reversal of the probation revocation if (1) at the revocation hearing defendant admitted facts sufficient to establish by a preponderance of the evidence that he committed the offense, or (2) if testimony is presented at the revocation hearing which meets this same standard. If the only thing established at the hearing is that defendant was convicted of the offense, then reversal of that conviction requires reversal of the probation revocation as well.
Because the prosecution may seek to reinstitute probation revocation proceedings against the defendant on the basis of conduct occurring during the probationary period, we will briefly address one further issue raised by the parties. After this Court’s reversal of defendant’s armed robbery con
The revocation of defendant’s probation is reversed and the sentence imposed thereon is vacated.
Reversed.
Concurring Opinion
(concurring). I concur in the result reached by the majority but write regarding defendant’s motion to disqualify the trial judge.
In 1974, this defendant attempted to escape from custody in the courtroom immediately following sentence
I write to indicate that I would not permit a litigant to accomplish disqualification of a trial judge under this type of circumstance. However, in this case, the trial judge subsequently, at a 1978 disqualification hearing, chose to grant a motion to disqualify himself from hearing a nonjury retrial
Only because the trial judge involved chose to disqualify himself from hearing the retrial do I concur in this decision to disqualify him from a further probation revocation hearing, if there is one.
Defendant was sentenced to three years probation, with the first year to be spent in the county jail.
See, People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978).
Reference
- Cited By
- 8 cases
- Status
- Published