State v. Golden
State v. Golden
Opinion of the Court
Defendant appeals from a revocation of probation. He was sentenced to 10 years’ imprisonment on an illicit drug conviction on October 26, 1970. At that time the judge warned, “you shall not associate with any drug users.” This was made a condition of the written terms of probation, a copy of which defendant received. The judge stated at the revocation hearing that he had asked the vice squad (police) to keep a surveillance on defendant because the judge was concerned that he might violate this term of probation. A vice officer came upon the defendant on December 19, 1970, at a place called “The Snakepit.” The officer testified:
“* * * I had knowledge from my prior visits to that location that the drug users, dealers, frequent the kitchen quite a bit.
“As I entered into that portion of the premises, I observed Mr. Golden standing at a table to my right, just adjacent to the stove. There was one or two other subjects in the kitchen area with him. I greeted them, took a look around the place, observed many articles of paraphernalia, hypodermic syringes, needles, spoons, many, many parts of balloons laying on the floor.”
“It further appearing to the Court from information furnished by the Corrections Division of the State of Oregon that said defendant has violated the terms of his probation and the Court being fully advised in the premises * *
The judge had received no communication from the Corrections Division — his only basis for setting the hearing was the information from the vice officer and nothing about that information was in the show-cause order.
The only question worthy of consideration in this appeal is whether the mistaken form of the show-cause order constituted such lack of notice as to be violative of due process of law.
At the revocation hearing the defendant’s attorney objected to taking evidence based upon the order, but neither he nor the defendant asked for a continuance in order to further prepare for the hearing. The vice officer testified for the state and the defendant testified in his own defense and Called his probation officer as a witness.
In Barker v. Ireland, 238 Or 1, 392 P2d 769
“Since the grant, denial or revocation of probation is discretionary with the trial court, the question is whether the trial court acted arbitrarily or capriciously * * *.” State v. Frye, 2 Or App 192, 195, 465 P2d 736 (1970).
Perry v. Williard, 247 Or 145, 427 P2d 1020 (1967), holds that the defendant is entitled to due process of law in that he is entitled to an attorney in revocation proceedings. In Gebhart v. Gladden, 243 Or 145, 412 P2d 29 (1966), the court said at 150:
“* * * [A] hearing under OES 137.550 need [not] take on the formalism normally associated with the taking of testimony on the issue of guilt or innocence. The hearing provided for by this statute is summary in nature * * *. Trial judges have great discretion in controlling the nature and scope of summary hearings.”
See also City of Portland v. Olson, 4 Or App 633, 481 P2d 641, Sup Ct review denied (1971); State v. Dupree, 3 Or App 303, 472 P2d 824, Sup Ct review denied (1970). The mistake which was made in the instant case would have entitled the defendant to reasonable time needed for preparation to meet the charges against him in the revocation hearing if he desired it. However, the show-cause order and the arrest warrant were patently valid. Defendant was not entitled to prevent pertinent evidence against himself from being heard simply because a clerical error had been made in the process. Inasmuch as defendant proceeded without
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.