State of Utah v. Gastelum-Lopez

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State of Utah v. Gastelum-Lopez, Case No. 20000829-CA, Filed November 16, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Liberado Gastelum-Lopez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000829-CA

F I L E D
November 16, 2001 2001 UT App 348 -----

Third District, Salt Lake Department
The Honorable Terry Christiansen

Attorneys:
Linda M. Jones and James A. Valdez, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Buckner, Salt Lake City, for Appellee -----

Before Judges Greenwood, Davis, and Thorne.

DAVIS, Judge:

Gastelum-Lopez argues that the court violated his rights under the probation revocation statute, Utah Code Ann. § 77-18-1(12) (Supp. 1997),(1) and his right to due process.(2) The failure to follow the procedures outlined in section 77-18-1(12)(b)-(c) warrants reversal.

Although bench probation is specifically authorized by section 77-18-1(2)(a)(ii), there is no provision excepting bench probation from compliance with the requirements of section 77-18-1(12)(b). Section 77-18-1(12)(b)(i) provides that to commence a revocation proceeding, there must be an affidavit filed alleging particular facts that, if proven, would constitute a violation. According to the statute, the court must then make a preliminary probable cause determination, and if the court finds there is probable cause to believe there has been a violation, it "shall cause to be served on the defendant a warrant for his arrest or a copy of the affidavit and an order to show cause why his probation should not be revoked." Id. § 77-18-1(12)(b)(ii); see also State v. Grate, 947 P.2d 1161, 1165 (Utah Ct. App. 1997) (stating the proper way to initiate a probation revocation proceeding is to issue an order to show cause). Under section 77-18-1(12)(c), the show cause order "shall" specify the time and the place for the hearing, "shall" give the probationer at least five days advance notice of the hearing, "shall" inform the probationer of a right to counsel and to appointed counsel if indigent, and "shall" inform the probationer of the right to present evidence. These procedures were not followed, and on this record we cannot say Gastelum-Lopez waived these rights. Cf. State v. Martin, 1999 UT App 62,¶¶14-16, 976 P.2d 1224 (upholding trial court's determination that probationer had waived rights provided by section 77-18-1(12)(b)-(e)). Therefore, it was reversible error for the court to disregard the mandatory language of the statute. See State v. Labrum, 925 P.2d 937, 940 (Utah 1996) (failing to follow statute requiring mandatory written findings for sentence enhancement was plain error requiring reversal); Martin, 1999 UT App 62 at ¶9 (implying that if probationer does not waive the procedural protections of section 77-18-1(12)(b)-(e), the procedures "must be followed").

Based on the court's failure to comply with the mandatory language of section 77-18-1(12)(b)-(c), our confidence in the outcome is sufficiently undermined that we must reverse the order revoking Gastelum-Lopez's probation.

However, we reject Gastelum-Lopez's contention that he is now entitled to outright release because the three year probation period has expired. This case does not present the potential for placing a probationer in a perpetual state of limbo, expecting that his probation has terminated only to be subject to a later revocation, as was the situation in Smith v. Cook, 803 P.2d 788 (Utah 1990). Here, Gastelum-Lopez had no reasonable expectation that his probation had terminated because a revocation hearing was held before the probation period terminated, he admitted a violation, and he was remanded to custody to serve the balance of his sentence. Thus, we agree with the State that the revocation proceeding, although defective, did toll the probationary period, see State v. Call, 1999 UT 41,¶11, 980 P.2d 201, and we remand for further proceedings consistent with section 77-18-1(12)(b)-(c).

Reversed and remanded.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. We utilize the 1997 version of the statute because it was the law when Gastelum-Lopez was sentenced. See Smith v. Cook, 803 P.2d 788, 792-93 (Utah 1990).

2. Due to our disposition on Gastelum-Lopez's procedural statutory claim, we do not reach his constitutional arguments or his separate claim that he had a statutory right to appointed counsel.