People v. Pratto

Mackenzie, P.J.

(dissenting). I would reverse and remand.

Defendant appeals as of right an order revoking his probation and sentencing him to 5 to 15 years imprisonment. His sole argument on appeal is that the trial court erred in accepting his guilty plea without advising him of his due process right to a contested hearing and without obtaining an admission from him that he had in fact violated probation.

While a defendant, accused of violating his probation, is not entitled to the full panoply of rights under the "guilty plea” rule, GCR 1963, 785.7, he does have the right to a contested hearing before pleading guilty. People v Hardin, 70 Mich App 204, 206-207; 245 NW2d 566 (1976), construing Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973).

Certain panels of this Court have disagreed regarding what must appear on the record to satisfy this requirement. It is now clear that the *525defendant need not be directly informed by the trial judge of his right to a contested hearing, as long as he is in some manner made aware of that right. People v Brooks, 91 Mich App 624, 626; 283 NW2d 817 (1979). In Brooks, the Court held that the record must disclose that the defendant was indeed aware of that right. Notwithstanding, other panels have held the defendant’s rights were adequately safeguarded where he was served with a bench warrant mentioning his right to a violation hearing, People v Darrell, 72 Mich App 710, 713; 250 NW2d 751 (1976), or where, under the totality of the circumstances, the defendant was given sufficient notice of the probation violation and, fully represented by counsel, admitted her violations to the Court, People v Hooks, 89 Mich App 124, 129; 279 NW2d 598 (1979).

In the instant case, defendant was served with an order to show cause why the probation order should not be revoked and terminated. However, that document did not inform defendant of his right to a contested hearing. Nor is it clear that defendant was served with a copy of the bench warrant which noted his right to a "violation hearing”.

Further, although defendant was represented by counsel at the probation revocation hearing on March 1, 1978, and the sentencing hearing on March 10, 1978, on neither occasion did the judge inform defendant of his right to a contested hearing before pleading guilty.

Nor did defendant admit the substance of the probation violations at either time. According to the bench warrant, there were three violations:

"1. Contrary to the provision #1 of the Order of Probation which states that 'the probationer shall not, during the term of his probation, violate any criminal *526law or ordinance of any state or of the United States or any of their subdivisions,’ he has violated this in that on January 5, 1977, he was found guilty of Larceny under $100 under St. Clair Shores Municipal Court Docket No. 354144.
"2. Contrary to provision #3 which states that, 'he shall report to the probation officer as often and in such manner as the latter may require,’ he was failed * * * to report in June, July, and August of 1977.
"3. Contrary to provision #5 which states that, 'he shall pay Court costs in the amount of $540.00 at the rate of $15.00 per month,’ he has failed to pay $15.00 per month, he has paid nothing to date.”

At the probation revocation hearing defendant’s counsel stated that defendant did not actually contest these violations but that the reason he had not reported to his probation officer for three months was he was in the army at that time. Additionally, at the sentencing hearing, the following colloquy occurred between the trial judge and defendant:

"DEFENDANT PRATTO: Well, your honor, that larceny thing was something about gas siphoning. Somebody siphoned gas from the neighbor’s car and I was working next door at the time it happened and there was nobody else around so the police got me, that larceny under $100.00.
"THE COURT: But you were convicted, were you not?
"DEFENDANT PRATTO: I just said, they told me they would take the $25.00 that I put up for bond and that was that, and I said, 'okay, I will give you $25.00’.
"THE COURT: But you pled guilty?
"DEFENDANT PRATTO: Yes, your Honor.”

Since the facts recited above give no indication that defendant was aware of his right to a contested hearing or that he admitted all the charges, I would vacate the sentence and remand to the trial court for a new hearing.