(dissenting).
I do not agree with the conclusions reached by the majority or the reasoning upon which they are premised, therefore respectfully dissent.
The question here presented centers primarily upon section 247.26, Code, 1966, which provides: “A suspension of a sentence by the court as herein provided may be revoked at any time, without notice, by the court or judge, and the defendant committed in obedience to such judgment.”
Contrary to the view adopted by the majority, I submit this statute, standing alone, does not answer the problem at hand. Rather, it must be viewed and applied in light of the dictates of fair play under present day standards.
I. In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the United States Supreme Court was called upon to determine the matter of defendant’s right to counsel at a hearing in connection with revocation of probation attended by a statutorily deferred sentence. Admittedly the Washington statute there involved differs from section 247.26, quoted supra. But *610again that alone should not be determinative.
This is to me clearly demonstrated by the fact that in Mempa v. Rhay, at 389 U. S. 137, 88 S.Ct. 258, the court made this informative statement: “All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.” (Emphasis supplied.). The majority, in the interpretation of that statement, agrees with the view expressed in the case of State ex rel. Riffle v. Thorn, W.Va., 168 S.E.2d 810, 813, where the court held, the disputed language means: “* * * when probation is revoked and the defendant is for the first time sentenced to the penitentiary that he must have a lawyer whatever the label that is placed upon the hearing.”
Despite this holding, I find no basis upon which to differentiate between revocation of probation, be it either subsequent to or simultaneously with imposition of sentence. In both instances the petitioner’s liberty is involved.
In Hewett v. North Carolina, (4 Cir.), 415 F.2d 1316, opinion issued August 26, 1969, the court, when confronted with the subject at hand, had this to say: “We have little doubt that the revocation of probation is a stage of criminal proceedings. Even if a new sentence is not imposed, it is the event which makes operative the loss of liberty. * * * Our inquiry is not concerned with whether North Carolina’s procedure is a carbon copy of that employed by the State of Washington.
“ * * * At stake in a revocation of probation proceeding is individual liberty, and the substantiality of this right may not be disputed. We are not impressed by the argument that probation is a ‘mere’ privilege, or a matter of grace, rather than a right and that, therefore, various constitutional mandates, including the right to counsel, should be held to be inapplicable.
* *
“We, therefore, conclude that counsel must be appointed for indigents in all revocation of probation proceedings conducted under the law of North Carolina, or the law of any other jurisdiction where the procedure similarly affects the substantial rights of the individual.”
Also, the court stated in Perry v. Williard, 247 Or. 145, 427 P.2d 1020, 1022: “The conceptual distinctions between a summary hearing before sentence is imposed, * * * and one after sentence is imposed are not operationally important insofar as such distinctions bear upon the trustworthiness and fairness of the decision to be made on disputed questions of fact concerning a probationer’s conduct. In either case, a person about to be deprived of his liberty ought to have a meaningful opportunity to disprove the charges against him.”
It is generally understood probation is granted a defendant in order that he may prove himself. To that end he must agree to specified standards of conduct, and continued liberty is dependent upon compliance with them. The freedom he enjoys is limited and subject to revocation for violation of the prescribed conditions. The probationer' promises to comply with stated requirements, and the court extends to him an implied promise that if he makes good his conditional liberty will continue. This promise should not be peremptorily brushed aside.
Fundamentally, personal liberty is one of the most sacred and valuable rights a citizen may have. Accordingly, one on probation should not be deprived, even of his conditional freedom upon possible false accusations, whim or caprice. So, where a defendant is granted suspension of sentence during good behavior he should have the right to rely upon that understanding so long as his conduct measures up to prescribed standards.
A person under probation should at least be accorded some minimal procedural safeguards to the end his liberty be not arbi*611trarily taken from him. He should be first given timely notice regarding claimed misconduct on his part which might subject him to revocation of probation.
This does not mean formal pleadings need be employed. If one on conditional release admits to the court his failure to “measure up” no other proceedings would be necessary. Otherwise a meaningful hearing should be conducted. In such instance the defendant is entitled to know the charges made against him, have benefit of counsel, give account of himself, have the privilege of presenting statements in his own behalf, and be granted the right to question those complaining of misconduct on his part. Of course, the state, being equally interested, should be permitted to participate fully in any such hearing.
Neither does it mean proof of guilt beyond a reasonable doubt need be established. Rather, if the evidence presented or showing made is of such nature as to induce a reasonable and impartial mind to believe the defendant has in any material respect violated the conditions of his probation, it would be sufficient. See State v. Brusenhan, 78 N.M. 764, 438 P.2d 174, 176-177.
Referring again to Mempa v. Rhay, supra, the court there also said, loe. cit., 389 U.S. 134, 88 S.Ct. 257: “* * * appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.”
A fair analysis of the words “criminal proceeding” and “substantial rights” to me affords no reasonable or plausible basis upon which to conclude the holding in Mempa is limited to actual trial. Even though probation be characterized as “a matter of grace” it still remains, when it is revoked the probationer’s substantial rights are materially affected. In support hereof see Hewett v. North Carolina, supra.
Also in point is Blea v. Cox, 75 N.M. 265, 403 P.2d 701, 702-703, where the court said: “As long ago as 1917, in Ex parte Lucero, 23 N.M. 433, 168 P. 713, L.R.A. 1918C, 549, this court passed on the necessity of preserving constitutional guaranties in hearings seeking to revoke the suspension of a sentence. The record in that case disclosed that the defendant was not present in person or by counsel when suspension of his sentence was revoked and commitment issued. We quote from the opinion in that case:
“ ‘Upon principle it would seem that due process of law would require notice and opportunity to be heard before a defendant can be committed under suspended sentence. The suspension of the execution of the sentence gives to the defendant a valuable right. It gives to him the right of personal liberty, which is one of the highest rights of citizenship. This right cannot be taken from him without notice and opportunity to be heard without invading his constitutional rights.’
* *
“Aside from the right guaranteed in the Sixth Amendment to the Federal Constitution to be represented by counsel at all critical stages of a criminal proceeding, which has been held to be applicable likewise in state prosecutions by virtue of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, * * *
“As already noted in the quotation from Ex parte Lucero, supra, the taking from a man of his right to liberty being enjoyed under a suspended sentence amounts to the denying to him of one of his highest rights. This may not be done ex parte and without notice and hearing. We see in the proceeding for revocation of a suspension the same critical or crucial elements present as in other hearings wherein the right to counsel is guaranteed, such as the preliminary hearing, arraignment and trial. The need for and right to be represented by counsel, unless intelligently and knowingly waived, is as much a requisite in a hearing seeking revocation of a suspended *612sentence as in the other mentioned stages of the proceedings. Compare United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295., 11 L.Ed.2d 224.” See also Fleenor v. Hammond, (6 Cir.), 116 F.2d 982, 132 A. L.R. 1241.
Supportive of the foregoing views is this comment in State ex rel. Fulton v. Scheetz, Iowa, 166 N.W.2d 874, 887: “It is axiomatic that where liberty is to be restrained there must be due process * * *.”
In light of the foregoing I now ask: Where, as here, defendant’s liberty is at stake, is he not entitled to benefit of due process — to notice and a meaningful probation revocation hearing?
It is to me apparent due process of law is here involved.
II. By the same token I submit that at all stages of any such hearing the defendant is entitled to benefit of competent counsel.
With more than a minimal degree of logic the court held, in Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462, 463, a hearing which resulted in revocation of probation was invalid where defendant neither had nor was offered assistance of counsel.
And, in Perry v. Williard, supra, is found this pertinent statement, loc. cit., 427 P.2d 1022: “We now hold that counsel is not only desirable but is so essential to a fair and trustworthy hearing that due process of law when liberty is at stake includes a right to counsel.”
Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549, deals with the right of a defendant to representation by counsel in a parole board recommitment hearing, in holding the parolee then constitutionally entitled to assistance of an attorney, the court found no basis for differentiation between revocation of probation before or after sentencing with this marked comment, page 551, 249 A.2d: “We are helped not at all in determining appellant’s constitutional rights by attaching artificial labels to describe the proceeding before us.”
See also Hewett v. North Carolina, and Blea v. Cox, both supra.
III. Additional authorities supporting the views expressed supra, are: Application of Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527; Gideon v. Wainwright, 372 U.S. 335, 344-345, 83 S.Ct. 792, 796-797, 9 L.Ed.2d 799; Douglas v. People of State of California, 372 U.S. 353, 356— 358, 83 S.Ct. 814, 816-817, 9 L.Ed.2d 811; Griffin v. People of the State of Illinois, 351 U.S. 12, 16-18, 76 S.Ct. 585, 589-590, 100 L.Ed. 891; McNeely v. State, Fla. App., 186 So.2d 520, 522-523; Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124, 127, and Mason v. Cochran, 209 Miss. 163, 46 So.2d 106, 108.
I would reverse and remand with instructions, that trial court set aside the order heretofore entered revoking probation, timely notice be given defendant relative to revocation of probation, hearing be accordingly held, defendant be allowed benefit of counsel at all stages thereof, and if this be not done within 60 days then the writ to issue.
MASON and BECKER, JJ., join in this dissent.