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Show FRIDAY, APRIL 16, 1971 TNI PAfif DAILY RECORD FIVK T In The Supreme Court Of The State Of Utah The State of Utah, No. 12106 Plaintiff and Respondent, FILED v. April 9, 1971 Charles Henry Eichler, L. M. Cummings, Clerk Defendant and Appellant. CROCKETT, Justice: 9 Defendant appeals from an order of the District Court of the First District, Cache County, which revoked probation that had been granted him on separate sentences for forgery and second-degrburglary. The not been given had he he is that annul the seeks which to order upon ground an attorney at the hearing concerning revocation of his probation. ee On April 16, 1969, upon his plea of guilty, the defendant had been sentenced in the above mentioned court, in Cache County, to the statutory penalty of one to twenty years in the Utah State Prison for the offense of forgery. The following month, on May 27, 1969, the same First District Court, acting in Box Elder County, consequent to defendant's plea of guilty, sentenced him to the statutory term of one to twenty years for the crime of second-degre- e burglary. The District Judge (Hon. Lewis Jones) granted on both of these sentences. In connection therewith he of execution stays ordered that the defendant serve six months in the Box Elder County jail;1 and that upon his release he be placed on probation for a period of two years. After serving the six months in the Box Elder County jail the defendant was released on probation. Thereafter, on March 16, 1970 upon the basis of an affidavit of the probation officer, John Holmes, charging violations of his probation, the defendant appeared before the District Court in ' Cache County (Hon. Venoy Christoffersen, successor to Judge Jones). He made a request that a lawyer be appointed to represent him, which request was not granted. He was found to be in violation and ordered committed to the Utah State Prison to serve the sentences theretofore imposed, to run concurrently. In regard to probation and its revocation we make these observations. After the defendant has been convicted of an offense and sentenced, even though he is placed on probation, he is not entitled to all of the protections the law affords one accused of crime in the first instance. If it were necesprocedure of apprehending and convicting sary to go through the him of a new crime, he might as well be sentenced and committed on the new conviction as upon a revocation of probation. In such circumstances the use and effectiveness of probation would be greatly minimized if not lost altogether, one aspect of which would be the reluctance of judges to employ it. It is our judgment that the law should avoid so burdening the probation procedure as to tend to impair or destroy the system with the various beneficial , effects it has had in penology. 3 Nevertheless, we have previously recognized that both fairness and the effective use of probation demand that a defendant who is placed on probation should have the assurance that if he keeps the conditions of his probation it will continue, as contrasted with having to live in dread of revocation merely on someone's whim or caprice. It is for this reason that this court has indicated that certain basic procedural requirements should be complied with. This of course includes a notice as to wherein the subject is accused of failing the conditions of his probation, and in case of dispute, he should be entitled to a hearing before the court. full-dre- ss : . We believe that the question as to furnishing the defendant counsel could well be left to the discretion of the trial judge, with his action subject to review for abuse of discretion. This would in many instances eliminate much unnecesand expense. However, in view of recent adjudications upon sary time, trouble 8 we now affirm that the right to have counsel, when the defendant the subject, indicates he so desires, should be included in such a hearing. It is in accordance with the assurance of the Utah State Constitution that an accused be provided with the assistance of counsel at every important stage of the proceedings against him. Inasmuch as such a hearing involves the possibility of changing the defendant's status from one of being at liberty to one of being in confinement, it does no particular violence to one's sense of justice that it be regarded "as an important stage of the proceeding against him" at which he should have the assistance of counsel if he so desires. The defendant also assails the proceeding as improper on the ground that the First District Court, acting in and for Cache County, had no jurisdiction to revoke the probation granted in the defendant's case in the District Court of Box 8 Elder County. With that contention the State agrees, stating in its brief that: "Eichler's defendant's probation revocation in Cache County and Box Elder County should be vacated and the appellant returned to the District Court for further proceedings in both counties." ELLETT, Justice: (Dissenting) I dissent. The case of Beal v. Turner .1 is dispositive of the present matter insofar as the need for counsel is concerned. 1. 22 Utah 2d 418, 454 P. 2d 624 (1969). I Alvarez v. Turner cited as authority for reversing the instant matter is not binding upon this court. That case relied upon Mempa v. Rhay and erroneously assumed that a lawyer was required in parole revocation hearings. In the instant matter the court granted probation after sentence was pronounced. The release of the defendant was a matter of grace on the (iart of the trial judge and not a matter of right on behalf of the defenMnt. All rights to be free were terminated upon conviction of the defendant, and he was then subject to immediate incarceration. If the court wishes to give him an opportunity to prove himself worthy of iretfdom from incarceration, it should not for that reason alone lose any power to incarcerate him after the defendant betrays the confidence of the court. There is no jurisdictional requirement that probation be revoked in the county where a defendant was originally tried. If it is necessary for the judge to be in any particular place when he decides that a defendant had deceived him and should be incarcerated, it would make more sense to require him to be in the county where the betrayal took place. There is no constitutional requirement that a criminal be furnished with an attorney. All that is required is that he have a right to have counsel. See Dyett v. Turner, 20 Utah 2d 403, 439 P. 2d 255 (1968). I think it is time for state courts to assert themselves. We should interpret the law in the light of reason and common sense and let other courts turu prisoners loose on flimsy grounds to prey upon society if they care to do so, but we need not subscribe to such procedures. I would affirm the judgment of the district court. J., Henriod, District Court Jurors COURT IN THE CIVIL AND CRIMINAL DIVISIONS DURING APRIL, MAY, AND JUNE, 1971 E. R. Callister, Abeyta, 660 Elder Court Clive L. Ahlstram, 639 E. Connie Dr John Aimo, 1240 Elgin Ave William R. Allen, 9541 So. 1380 E. Phillip Jr., Sandy cited. 5. Ibid. 6. Thfct under the recent adjudications, the right of counsel should be so assured, see Mempa v, Rhav, 389 U.S. 128 (1967); Alvarez v. Turner, 422 , , At. 1, Nelda P. Conover, 800 Northcrest Drive Harold R. Coombs, Jr. 4306 Annapolis Drive 0. C. Cornia 555 North 7th West Blanche L. Cullum, 2895 So. 700 East Lewis S. Dana, 628 Center St. William Daniels, 2251 Lincoln Lane Dixie Davidson 2992 West 2960 South Edna R. Davidson, 1824 East 3900 South Madelynn F. Davis, 866 So. 13th W. Rose Davis, 221 So. 5th Vest Ryrum p. Dennis, 6578 Lombardy Dr. Charlette Denaley, 1898 W. 138OO South, Riverton Max G. Derrick , 518 Drigga Ave Peter H. Dowse, 2925 Edgerrock Cr. James Draxler, 2898 McClelland St Nina W. Duke, 1036 Colorado St Michael H. Dunfield, 2254 Alva Cr. Calvin Dunn, 700 E. 3 Fountains Drive 69 David N. Edgar, 5181 So. 4240 W. Betty Edmunds, i960 West 6200 So. Calvin D. Edwards, 4860 W. 5055 So Marvin P. Egleston 2150 Cumberland Drive Stanley H. Elg, 1155 South 3rd Ave, Murray Marvin L. Allred, 6218 So. 3rd E. Douglas Ancell, 6280 So. 725 E. Harvey S. Anderson, 382 Arlo Ave, Sandy Rosemary G. Anderson, 995 Sego Lily Dr. Sandy Thomas W. Anderson, 690 E. 12100 South, Draper Ashton, 2274 Kensington Kenneth Atkinson, 1445 West 4800 South Dennis E. Baer, 1658 Blaine Ave Bnma Rae Gwen L. Barber, 4209 Jupiter Reid Barton 1926 Yalecrest Ave Richard M. Bench, 2398 Campus Dr. Gerald Bertagnole 2223 Logan Ave James A. Bertola, 1454 Paradise Ln Hawley Bagley, 3772 So. 2300 E. Jack G. Bale, 1560 Lane Brook Ln Louis Baruffol, 631 6th Ave John C. Beckstrand, 4586 West 5255 South Joseph E. Belli ston, 1619 Monaco Av Clifford M. Berg, 4366 Camille Dr Jay C. Bergquist, 815 Yale Ave James Biondo, 4675 Idlewild Rd. LaVon Bishop 997 E. 78OO South Charles Bittle, 1226 Buccaneer Dr. Don W. Black, 3235 Metropolitan Wy Francis B. Black 9750 Silica Dr. Sandy Delice A. Blackham, 4384 Fortune East, Sandy Ellis, 4909 South 4380 W. William B. Ellis, 4593 Welling- Howard Way ton St. fineline finery 845 Park St. Dari M. Every, 2510 E. 4340 So. Ralph C. Ennan 1454 W. 6th So. Yvonne M. Erickson, 3064 E. 7180 So. 207 5th Ave drian Blaser, 1125 E. U085 So. West 5570 So. Ulon D. Blood 'oan M. Bluth, 159 E. 1040 South obert C. Blair, Rpy D. Estes, 3505 Eastwood Dr. G. Arlan Evans, 9224 So. 2700 59 vi'-- I), iai'j Ck.rH j wood Avenue P Way Floyd E. Fisher 1897 Fullmer Circle, SandyRuth Johnson- Flshburn, 3440 So. Street nor Buckner 6491 West 3785 So. Stephen Butterfield 7655 So. 5th East 45 Jack L. Fletcher, 2623 So. 1800 East 700 East Ijouis P. Camera, 147 West 5750 So. Melvin Foster, 2968 E. 4430 South William I. Frangos, 1791 E. 2960 South ,pr 8 Te-''- 4urray Campbell, 1439 Roxbury Rd Kathryn Carnes, 1709 Parley Canyon yle K. Harmon C. J. Faulkner 7467 So. Ramanee Midvale Drive, Charles R. Ferguson, 2821 Wester-lin- g Wanda Carpenter, 11191 So. ) 454,.2ci d Utah 253, 147 P. 2d 858, which states that: "The 8. Citing State v. There jurisdiction is determindd by the county and not by the district a whole but court district the covers only district is no diitrlct court which .... f :'j v . v. 1 Cox, 106 West West Jordan Barbara Mae Fair dough, 203 Rose- South, Sandy toward Brockbank, 517 K St. Toy P. Brown, (Pemberton) 323 See State v. Zolantakis, 70 Utah 296, 259 P. 1044; Baine v. Beckstead, 10 Utah 2d 4, 347 P. 2d 564; and see generally 7 Utah Law Rev. 125 (Spring 1960) for extensive discussion and analysis of Utah cases dealing with hearing and see authorities therein requirements in recommitment of probationers, ( East Alvin H. Allred, 124 Washington lelvin L. Brain, 3627 Canyon Way Tean B. Briggs, 2468 Sundown Ave ark A. Brinkerhoff 764 E. 8375 4. , Drive Louise Coles, 78 West Zane Ave Rena Condas 3268 West Teas Ave Arthur M. Connole, 1154 So. 13th last, Midvale Chief Justice R. L. Tuckett, Justice ll99). West, South Jordan John L. Christensen, 6046 West 3815 South Viola V. Coleman 4725 Sycamore E. 7200 So. lepha L. Boggess, So. 7284 S. Bradford, lorothy .440 East lean J. Brady, 6970 South 13th WE CONCUR: U4 Hattie Chenoweth, 1888 South 17th East Betty Christensen, 9727 So. 1650 JURORS TO SERVE IN DISTRICT andy i does not participate herein. 5U It is so ordered. No costs awarded. . nary J. utmeron, ouuin yui Franklin Circle West Winston V. Carger, 6l8 4th Ave Marjorie Chapman, . Lillian 806 Coat svi lie v I t ':r. ; H.- - H. . V' .1 w E, 00. Fullmer, 2475 Village Gallagher South, Sandy a l,;i n 36 E. 98OO |