State v. O'CONNOR

229 S.E.2d 705 (1976)

STATE of North Carolina v. Richard Charles O'CONNOR, Jr.

No. 764SC444.

Court of Appeals of North Carolina.

November 17, 1976.

*706 Atty. Gen. Rufus L. Edmisten by Associate Atty. David S. Crump, Raleigh, for the State.

Turner & Harrison by F. W. Harrison, Kinston, for defendant.

BROCK, Chief Judge.

Defendant argues on appeal that the order revoking his probation should be reversed because defendant was not accorded a preliminary hearing at the time of, or near the time of, his arrest. Defendant relies upon Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).

Morrissey v. Brewer, supra, mandated both a preliminary and final revocation hearing in parole revocation proceedings. Gagnon v. Scarpelli, supra, applied the same reasoning in probation and suspended sentence revocation proceedings. The requirement of a preliminary hearing as promptly as convenient after arrest for parole violation as mandated in Morrissey was to afford the parolee minimal due process of law before he is deprived of the liberty he enjoyed on parole. The concern of the court in Morrissey was the arrest upon an allegation of violation of parole and the incarceration of a parolee for a substantial period of time before there can be a fact-finding hearing upon whether his parole should be revoked. Referring to the preliminary hearing stage mandated by Morrissey, it was stated: "Based on the information before him, the [hearing] officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the *707 parolee's continued detention and return to the state correctional institution pending the final decision." Morrissey v. Brewer, supra, 408 U.S. at 487, 92 S. Ct. at 2603, 33 L. Ed. 2d at 498. Gagnon v. Scarpelli, supra, applied the reasoning and procedures outlined by Morrissey to procedures for revocation of probation or suspended sentences. Both cases, in mandating the preliminary hearing stage, were concerned with a possible unjustified incarceration of a parolee or probationer for a substantial period of time before a fact-finding hearing could be held.

The possible unjustified deprivation of the conditional liberty of a parolee or probationer is not involved in this case. The defendant was served with a bill of particulars, arrested, and released on bond, all in the same day. He was free until the time of the fact-finding hearing from which stemmed the revocation of his probation.

Defendant received every benefit he could have received from a preliminary hearing. Under such circumstances due process did not require that defendant be accorded a preliminary hearing.

The order revoking probation is

Affirmed.

VAUGHN and MARTIN, JJ., concur.