State of Utah v. Jackson

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Brenda Jackson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000166-CA

F I L E D
November 2, 2000 2000 UT App 306 -----

Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Maurice Richards and Jerald N. Engstrom, Ogden, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Thorne.

PER CURIAM:

Appellant Brenda Jackson appeals from the denial of her motion to correct an illegal sentence.

Jackson argues that the trial court lacked subject matter jurisdiction to restart her probation following proceedings in September and December, 1996, and her probation terminated statutorily. Accordingly, she claims the probation revocation in 1999 resulted in an illegal sentence.

In September, 1996, Jackson's probation officer filed an affidavit alleging that she had violated the terms of probation and seeking an order requiring her appearance to show cause why her probation should not be revoked. Jackson, whose whereabouts were not known to her probation officer, was arrested. After consultation with counsel, she waived her right to an evidentiary hearing on the alleged violations, and admitted violating the terms of her probation. The waiver followed a colloquy during which the trial court advised her of her right to have a hearing on the issue of probation violation under Utah Code Ann. § 77-18-1(12)(1999). In denying the motion to correct illegal sentence, the trial court concluded that Jackson waived any right to object to the probation proceedings when she appeared on September 16, 1996, waived her right to an evidentiary hearing, and admitted the violation.

In State v. Martin, 1999 UT App 62, 976 P.2d 1224, this court concluded that "the plain meaning of section 77-18-1 leads to the conclusion that probationers may elect either to have a hearing complete with all of the statutory protections set forth in subsections (b) through (e) or may waive the right to a hearing, thereby foregoing the procedural safeguards guaranteed in the statute." Id. at ¶9 (emphasis in original). Similarly, in State v. Call, 1999 UT 42, 980 P.2d 201, the supreme court concluded that probation was properly extended under section 77-18-1(12) where the record supported that defendant "knowingly, intelligently, and voluntarily waived her right to a hearing." Id. at ¶11. The record in the present appeal fully supports the trial court's conclusion that Jackson knowingly, intelligently, and voluntarily waived her right to a hearing in the 1996 proceedings, and that her probation had not terminated prior to the 1999 proceedings that resulted in the revocation of her probation. Accordingly, we conclude that the trial court did not err in denying the motion to correct illegal sentence.

We affirm.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge