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04/27/76 PEOPLE v. TERMINELLI

April 27, 1976

PEOPLE
v.
TERMINELLI



Appeal from Oakland, James S. Thorburn, J.

Bronson, P. J., and McGregor and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. -- Probation Revocation -- Payment of Costs -- Indigency -- Constitutional Law -- Equal Protection.

The revocation of a defendant's probation for failure to meet a condition of probation that he make payments toward "costs or fines" violates the defendant's right to equal protection of the laws where the defendant is unable to make the payments because of indigency.

2. -- Probation -- Judges -- Discretion -- Indigency.

Probation is a privilege, the granting of which rests within the discretion of the trial court; however, a decision to terminate that privilege may not be based upon the probationer's financial situation of indigency.

The opinion of the court was delivered by: Maher

James P. Terminelli was convicted, on his plea of guilty, of attempted breaking and entering, and he was placed on probation. Probation revoked for failure to make payments towards costs, and defendant was sentenced to a term of imprisonment. Defendant appeals.

Defendant, upon a charge of breaking and entering, MCLA 750.110; MSA 28.305, pled guilty to an added count of attempted breaking and entering. On November 14, 1974, he was sentenced to three years probation. One of the conditions of his probation was payment of "costs or fines in the sum of $400 forthwith or at the rate of $20 per month".

On May 8, 1975, defendant appeared before the trial court on an order to show cause why his probation should not be revoked for his failure to make any payments towards the costs. After a brief hearing, the court found defendant in violation of his probation. On May 15, 1975, the court sentenced defendant to three to five years imprisonment. Defendant appeals.

It is not disputed that defendant violated the conditions of his probation by failing to make any payments towards costs. Defendant contends that his nonpayment, due to his indigency, cannot be used as a basis for revocation of his probation and imposition of a prison term, for such action constitutes a poverty-based discrimination prohibited by the Fourteenth Amendment. The prosecution counters with the assertion that defendant did not establish his indigency.

In other contexts, the equal protection clause of the Fourteenth Amendment has been used to prohibit imprisonment of indigents for nonpayment of fines or levies. In Williams v Illinois, 399 U.S. 235; 90 S Ct 2018; 26 L Ed 2d 586 (1970), the Supreme Court found an invidious discrimination in the Illinois scheme in which a prisoner, unable to pay a fine imposed along with a prison term, was held in jail beyond the statutory maximum term to satisfy the fine. The Court later held, in Tate v Short, 401 U.S. 395; 91 S Ct 668; 28 L Ed 2d 130 (1971), that imprisonment of an indigent without means to pay accumulated traffic fines, in a state with a "fines only" policy for traffic offenses, constituted impermissible discrimination on the basis of economic status. Cf. Morris v Schoonfield, 399 U.S. 508; 90 S Ct 2232; 26 L Ed 2d 773 (1970).

The reasoning behind the holdings in both Williams and Tate applies to probation revocation. Payment of costs as a condition of probation is legitimate, Fuller v Oregon, 417 U.S. 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), but where indigency prevents a probationer from fulfilling such a condition, his subsequent imprisonment constitutes a discrimination on the basis of economic status. The prosecution does not attempt to demonstrate any significant state interest served by this discrimination, nor is any apparent to us. Without such justification, the revocation of an indigent's probation for failure to make payments towards costs must be viewed as an impermissible denial of equal protection. Cf. People v Hernandez, 53 Mich App 91; 218 NW2d 394 (1974).

In holding that revocation of an indigent's probation for failure to make payments ordered as a condition of probation violates the probationer's constitutional rights, we in no way challenge the long-held view that probation is a privilege, the granting of which rests within the discretion of the trial court. People v Good, 287 Mich 110; 282 NW 920 (1938), People v Jim Williams, 57 Mich App 439; 225 NW2d 798 (1975). The decision to terminate that privilege, however, cannot be based upon the probationer's ...


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