Opinion
Docket No. 4,567.
Decided March 26, 1969.
Appeal from Allegan, Chester A. Ray, J. Submitted Division 3 February 10, 1969, at Grand Rapids. (Docket No. 4,567.) Decided March 26, 1969.
Gordon Donald Marshall's probation was revoked and he was sentenced for uttering and publishing. Defendant appeals. Reversed and remanded.
Lester J. Tooman, for defendant on appeal.
BEFORE: LEVIN, P.J., and HOLBROOK and DANHOF, JJ.
At defendant's probation hearing held on August 21, 1967, probation was revoked and he was sentenced to prison.
The offense herein was uttering and publishing, CL 1948, § 750.249 (Stat Ann 1962 Rev § 28.446) providing for a maximum sentence of 14 years.
Counsel was not offered defendant at the hearing nor was counsel waived by him.
Since the ruling in Mempa v. Rhay (1967), 389 U.S. 128 ( 88 S Ct 254, 19 L Ed 2d 336) a defendant must be afforded counsel at a hearing resulting in probation revocation and sentence. See McConnell v. Rhay (1968), 393 U.S. 2 ( 89 S Ct 32, 21 L Ed 2d 2), People v. Lott (1968), 12 Mich. App. 123, People v. Hernandez (1968), 14 Mich. App. 741, and People v. Dye (1967), 6 Mich. App. 217.
Defendant's sentence is set aside and the cause is remanded to the trial court for probation violation hearing with counsel present, unless defendant intelligently waives counsel for such hearing.