PEOPLE OF MI V BILLY JOHN FRENCHAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
March 12, 1999
Berrien Circuit Court
LC No. 93-001620 FH
BILLY JOHN FRENCH,
Before: Gribbs, P.J., and Saad and P. H. Chamberlain,* JJ.
Defendant Billy John French appeals of right from the circuit court judgment revoking his
probation and sentencing him to prison. We affirm.
On May 12, 1993 defendant pleaded guilty to breaking and entering a vehicle for the purpose
of taking property valued at not less than $5.00, MCL 750.356a; MSA 28.588(1). On June 21, 1993
the court sentenced defendant to three years’ probation, and required him to pay restitution of
$3,324.00 at the rate of $30.00 per month, and fines and costs of $400.00 at the rate of $30.00 per
Defendant violated his probation on several occasions. On three occasions the charges
included failing to report to his probation officer as required and failing to pay restitution, fines, and costs
as required. Defendant’s probation was extended, he was placed on electronic tether, and at one point
he was incarcerated for one year.
On June 10, 1997 defendant was arraigned on probation violation charges for the fifth time.
The charges included failing to report as required and failing to pay restitution, fines, and costs as
required. Defendant pleaded not guilty, and requested court-appointed counsel. A probation
revocation hearing was scheduled for June 12, 1997.
* Circuit judge, sitting on the Court of Appeals by assignment.
At the hearing, defendant’s appointed counsel indicated that defendant was not ready to
proceed because he wished to obtain retained counsel. The court declined to adjourn the hearing.
Defendant’s probation officer testified that defendant still owed $2,900 in restitution, and had not made
a payment since February, 1995. In addition, he still owed $400 in fines and costs. Defendant testified
on his own behalf and admitted that he had no excuses for not making the required payments. The
court revoked defendant’s probation and sentenced him to thirty to sixty months in prison, with credit
for 367 days.
A trial court’s decision to revoke probation is reviewed for an abuse of discretion. People v
Martinez, 20 Mich App 319, 324; 174 NW2d 14 (1969).
We affirm the decision of the trial court. Defendant’s assertion that the trial court abused its
discretion by revoking his probation is without merit. While nonpayment of restitution or fines and costs
cannot be grounds for revocation if the probationer is financially unable to make payments as required,
People v Gallagher, 55 Mich App 613, 620; 223 NW2d 92 (1974), defendant did not establish that
he was financially unable to make payments as required. Defendant testified that that he had been
employed on a fairly steady basis while on probation, and that he had no excuses for not making
payments as required. Under the circumstances, revocation of probation did not constitute an abuse of
discretion or a violation of defendant’s right to equal protection. People v Double, 57 Mich App 633,
635; 226 NW2d 594 (1975). Furthermore, defendant was not denied due process by the timing of his
revocation hearing. Defendant had two days’ notice of the hearing. We have held that depending on
the nature of the charges to be heard, one day’s notice can be sufficient. People v Duncan, 154 Mich
App 652, 654; 397 NW2d 857 (1986). The charges against defendant, failing to report as required
and failing to make payments as required, presented simple factual issues that required minimal time to
gather information. Finally, defendant had the right to be represented by counsel at the revocation
hearing. People v Bellanger, 227 Mich App 637, 641; 576 NW2d 703 (1998). However, at his
arraignment, defendant requested court-appointed counsel. The record does not reflect that between
the date of the arraignment and the date of the hearing, defendant took any steps to retain counsel. The
trial court did not err by declining to adjourn the hearing. Cf. People v Gulley, 66 Mich App 112,
117; 238 NW2d 421 (1975).
/s/ Roman S. Gribbs
/s/ Henry William Saad
/s/ Paul H. Chamberlain