                                         No.    85-299

                I N THE SUPREME COURT O THE STATE O MONTANA
                                       F           F

                                               1986




STATE O MONTANA,
       F

                 P l a i n t i f f and Respondent,

         -VS-

GARY JOSEPH SWAN,

                 Defendant and A p p e l l a n t .




APPEAL F O :
        R M      D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
                 I n and f o r t h e County o f M i s s o u l a ,
                 The Honorable Douglas H a r k i n , Judge p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                 N e i l M.   L e i t c h , M i s s o u l a , Montana


         For Respondent:

                 Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                 John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena
                 R o b e r t Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
                 Montana:          Michael S e h e s t e d t , Deputy County A t t o r n e y ,
                 M i s s o u l a , Montana




                                               S u b m i t t e d on B r i e f s :   Sept.   1 2 , 1985




Filed:




                         h

                                               Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

         Gary Joseph Swan, the defendant, appeals the revocation
of his suspended sentence.              Defendant claims that he was
denied due process when he was not afforded a preliminary or
probable cause hearing prior to the probation revocation
hearing; that he was denied due process when the State filed
charges     in   District      Court;   and   that   S 46-23-1013, MCA,
setting forth a District Court's action after the arrest of a
probationer for a probation violation, is unconstitutional.
We affirm the revocation of defendant's probation.
         On September 30, 1982, the Missoula County District
Court sentenced defendant to a term of 4935 years in the
Montana    State      Prison    for the crime of       attempted   sexual
intercourse without consent.            The District Court suspended
all but     the time defendant had            served under an earlier
conviction which had been             reversed and remanded by       this
Court.     State v. Swan (1982), 199 Mont. 459, 649 P.2d 1297.
He was then placed on probation.
         A Choteau County deputy sheriff arrested the defendant
on May 17, 1984, after the defendant's niece reported that he
had forced her to have sexual intercourse with him.                  The
District Court file does not contain any information about
the subsequent proceedings in Choteau County.                  Defendant
states that      he    was     charged with     the offense of     sexual
intercourse without consent and remained in custody pending
trial.     Apparently, this charge was dismissed on December 3,
1984.
         On November 27, 1984, a deputy county attorney for
Missoula    County      filed    a   petition   to   revoke   defendant's
probation, alleging that defendant had violated the terms of
his probation by committing the offense of sexual intercourse
without consent.        He also filed an affidavit in support of
the petition setting forth in detail the allegations against
defendant.     The District Court then issued a bench warrant
for defendant's arrest.       The defendant was arrested and taken
to Missoula County jail on November 30, 1984 and brought
before the District Court and advised of his rights regarding
the petition on December 3, 1984.         At this time he requested
that counsel be appointed.       Defendant and his court appointed
counsel appeared before the District Court on December 10,
1984, and again on December 12, 1984 where he denied the
allegations of the petition.         The case was then referred to a
sentencing judge for further proceedings.
      On     January    3,   1985,   Judge   Harkin   held   a   status
conference with the parties.         The District Court granted the
defendant's motion for more time to review the evidence.            On
January 15, 1985, defendant filed a motion to dismiss for
failure to afford him due process, a motion to require the
complaining witness to be present at the revocation hearing
and a petition for writ of habeas corpus.         The District Court
held a hearing to consider the motions and petition.               The
court denied defendant's request to be released, finding that
defendant had been afforded a preliminary showing of probable
cause at the time the court examined the State's petition and
affidavit.      At     that hearing, held    on January      17, 1985,
counsel for the defendant declined the court's offer to hear
and determine the sufficiency of the evidence indicating
probable cause.        The District Court then held the revocation
hearing on January 29 and 30, 1985 and concluded defendant
had violated his probation.            His suspended sentence was
revoked and he entered the State Prison to serve the balance
of his sentence.
      Defendant raises three issues on appeal:
      (1) Whether he was denied due process when he was not
afforded a preliminary or probable cause hearing prior to his
probation revocation hearing.
      (2) Whether he was denied due process when the State
filed charges against defendant in District Court.
      (3) Whether   5 46-23-1013, MCA, is unconstitutional.
      In the first issue, defendant contends that he was not
granted a prompt, on-site preliminary hearing on whether
probable cause existed to hold him for probation revocation
proceedings.   He evidently reads Morrissey v. Brewer (1972),
408 U.S.   471, 92 S.Ct. 2593, 33 L.Ed.2d    484, and Gagnon v.
Scarpelli (1973), 411 U.S.      778, 93 S.Ct.   1756, 36 L.Ed.2d
656, as requiring a preliminary hearing immediately after his
arrest for the felony, even though no petition to revoke his
probation was filed until about six months later.            This
approach confuses the procedural rights which arise following
an arrest for an offense and those which arise following an
arrest pursuant to a petition to revoke probation.            The
arrest and subsequent detention for the underlying offense is
not at issue in this appeal and the facts relevant to that
arrest and detention are not in the record.          Our inquiry
begins with the filing of the petition to revoke defendant's
probation on November 27, 1984, and concerns the procedural
rights due after the filing of such petition.
      Defendant relies   heavily    on   Morrissey   and   Gagnon,
supra, which set out the due process requirements generally
applicable to proceedings to revoke probation or parole.      The
minimum due process requirements for revoking parole include:
                (a) written notice of the claimed
               violations of parole; (b) disclosure to
               the parolee of evidence against him; (c)
               opportunity to be heard in person and to
               present    witnesses    and    documentary
               evidence; (d) the right to confront a.nd
               cross-examine adverse witnesses (unless
               the hearing officer specifically finds
               good     cause    for     not     allowing
               confrontation) ;  (e) a     "neutral and
               detached"   hearing   body   such as     a
               traditional parole board, members of
               which need not be judicial officers or
               lawyers; and (f) a written statement by
               the factfinders as to the evidence relied
               on and reasons for revoking parole.
Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at
499.      Gagnon, 411 U.S.          at 786, 93 S.Ct. at 1761-1762, 36
L.Ed.2d    at 664, extended these requirements to probation
revocations; held that the state was not required to provide
counsel        for     indigents      in       all    probation        revocation
proceedings; and held that a defendant was entitled to a
preliminary hearing on probable cause in addition to the
final hearing        on    revocation.          In Petition of Meidinger
(1975), 168 Mont. 7, 539 P.2d                  1185, this Court noted that
Morrissey and Gagnon involved decisions of administrative
boards rather than a judicial decision by the sentencing
judge     as    authorized     by     statute.         Montana's       method     of
probation       revocation thus          "provides an        inherent sort of
fairness       which      is   not        achieved         through     a     solely
administrative process."             Meidinger, 168 Mont. at 13, 539
P.2d    at 1189.         In Meidinger, we held that a preliminary
hearing was not necessary to insure protection of the rights
of the accused where no detention of the accused occurred.
The    issue    of whether        such     a   hearing      is required under
Montana's       method    where     detention        has    occurred       was   not
addressed.
        The purpose of the preliminary hearing is to determine
whether there is probable cause to believe that the accused
committed a probation violation.                    Owens v. Risley           (Mont.
1985), 702 P.2d 1, 42 St.Rep. 1000.                  The reason for holding
this hearing in addition to the revocation hearing is due to
a concern for promptness.            "There is typically a substantial
time lag between the arrest and the eventual determination by
the    parole      board     whether       parole    should      be     revoked."
Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d                         at
496.    The requirement that it be at or near the place of the
alleged violation stems from "the possibility of any mistake
or misunderstanding which might arise and the concomitant
hardship resulting from returning the parolee to prison."
Chilembwe v. Wyrick (8th Cir. 1-978), 574 F.2d 985, 987, cited
in Owens, 702 P.2d at 2, 42 St.Rep. at 1002.                    Morrissey also
states      that      due     process           requires   an         independent
decisionmaker, not necessarily a judicial officer, notice of
the    place    and   purpose       of    the    hearing   and    the     alleged
violations.
       Montana's system for dealing with probation violations
is set forth in 5 s 46-23-1012 and -1013, MCA.                  A defendant is
taken into custody when a court issues a warrant for the
arrest of       the   defendant      for violati-on of           conditions of
probation.       A warrantless arrest can occur only when the
defendant       is    given     a        written     statement        about     the
circumstances of the violation.              After the defendant has been
detained, he is brought before the court "without unnecessary
delay for a hearing on the violation charged."                            Section
46-23-1013 (1),       MCA.      No       two-stage    hearing         process    is
necessary under this system because the reasons for having a
preliminary hearing are absent.                  The revocation hearing is
held promptly, before a defendant i s returned t o prison.                                            The

d e f e n d a n t r e c e i v e s n o t i c e o f t h e h e a r i n g and o f t h e a l l e g e d

violations.             Finally,          t h e hearing i s held, b e f o r e a                 judge,

rather       than      an     administrative                 body,       providing        additional
p r o t e c t i o n f o r t h e defendant.

          There i s no q u e s t i o n h e r e t h a t t h e r e v o c a t i o n h e a r i n g

satisfies         t h e r e q u i r e m e n t s o f M o r r i s s e y and Gagnon,               supra.

In the case a t bar,                    t h e d e f e n d a n t was a f f o r d e d t h e p r o c e s s

contained i n t h e s t a t u t e s .                 I n a d d i t i o n , h e was r e p r e s e n t e d

by c o u r t a p p o i n t e d c o u n s e l .          A t his        t h i r d appearance,         four

weeks a f t e r h i s t r a n s f e r t o Missoula County j a i l , d e f e n d a n t ' s

counsel declined t h e D i s t r i c t Court's o f f e r t o hear evidence

c o n c e r n i n g la.ck o f p r o b a b l e c a u s e t o h o l d d e f e n d a n t on t h e

alleged violation.                  The D i s t r i c t C o u r t a l s o n o t e d t h a t t h e

issuance of            the    bench w a r r a n t           after       an e x a m i n a t i o n by a n

impartial         judicial         officer            of    the    affidavit        and       petition

afforded         the    defendant            a    preliminary            showing        of    probable

cause.        Under t h e s e c i r c u m s t a n c e s , we h o l d t h e d e f e n d a n t was

n o t d e n i e d due p r o c e s s f o r t h e S t a t e ' s f a i l u r e t o p r o v i d e a n

a p p e a r a n c e denominated a s               a    preliminary          o r probable cause

hearing.

          I n h i s second i s s u e ,                t h e defendant contends t h a t t h e

f i l i n g of    a p e t i t i o n and a f f i d a v i t t o r e v o k e p r o b a t i o n i n

D i s t r i c t C o u r t c i r c u m v e n t s t h e p r o c e s s due d e f e n d a n t .          This

procedure         a f f o r d e d him       the       same      judicial       determination of

p r o b a b l e c a u s e t h a t an u n c o n v i c t e d d e f e n d a n t r e c e i v e s i n a
criminal         proceeding.                 There         is     no     reason     to       afford     a
probationer            any     more         due        process          than     that        which     is

g u a r a n t e e d t o an u n c o n v i c t e d d e f e n d a n t .           W e hold      that the

s t a t u t o r y p r o c e d u r e which was              followed h e r e ,       d i d n o t deny

d e f e n d a n t due p r o c e s s .
        Defendant     challenges       the     constitutionality             of
§   46-23-1013,     MCA,   for   not    specifically        providing        a
preliminary hearing in his final issue.              This statute sets
forth    the   procedure    to   follow      after   the    arrest      of   a
probationer for a violation of his probation.                    As we held
above, this statutory procedure affords due process to the
de fenda.nt.        Therefore,     5 46-23-1013,          MCA,     is    not
unconstitutional.
        The decision of the District Court is affirmed.


                                             fP
                                              -       /  /&


                                          Justice    4                            \

We concur:
