People v. De Waele

FILES, J.

This appeal requires us to consider the right to counsel at a hearing where a defendant, whose probation before judgment has been revoked, is granted further probation conditioned upon spending additional time in the county jail. Our conclusion is that the latter order is appealable, and should be reversed because defendant’s counsel was not present.

On April 23, 1958, an information was filed containing eight counts, each charging defendant with issuing a check without sufficient funds in violation of Penal Code, section 476a. The information charged a prior conviction for violation of the same section. Defendant pleaded guilty to Count I

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and admitted the prior conviction. On May 19, 1958, the court, without pronouncing judgment, suspended proceedings and placed defendant upon probation for five years. The other seven counts were dismissed. As a condition of probation, defendant was required to spend six months in the county jail. Defendant was represented by the public defender, who appeared for him when he pleaded and when the order granting probation was made. On October 14, 1958, the terms of probation were modified and defendant was ordered to make restitution in a manner and amount prescribed by the probation officer.

No appeal was taken from either of those orders.

On November 2, 1962, an order was made revoking probation and a bench warrant was issued. Neither defendant nor his counsel was present on that occasion. On November 16, 1962, defendant was brought before the court. Present were a deputy district attorney, a deputy probation officer, and defendant without counsel. The entire reporter’s transcript of what occurred then is as follows: ‘ ‘ The Court : Charles Frederick De Waele. Charles Frederick De Waele, is that your true name? The Defendant: Tes, sir. The Court: The defendant will be found to be in violation of probation. He will be restored to probation on the original terms and conditions, except that it will be modified and extended to a period three years from this date—no—strike that. It will be modified and extended a period of one year from this date, and the defendant will be remanded and the balance of the period of probation will—the defendant will remain in custody, good time allowed, if earned, and the fine will be remitted. That means that the balance of the probation, one year, will be spent in jail. ’ ’