No. 85-299 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSGARY JOSEPH SWAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Neil M. Leitch, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana: Michael Sehestedt, Deputy County Attorney, 

Missoula, Montana 

Submitted on Briefs: Sept. 12, 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 5s 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 is returned to prison. The 

defendant receives notice of the hearing and of the alleged 

violations. Finally, the hearing is held, before a judge, 

rather than an administrative body, providing additional 

protection for the defendant. 

There is no question here that the revocation hearing 

satisfies the requirements of Morrissey and Gagnon, supra. 

In the case at bar, the defendant was afforded the process 

contained in the statutes. In addition, he was represented 

by court appointed counsel. At his third appearance, four 

weeks after his transfer to Missoula County jail, defendant's 

counsel declined the District Court's offer to hear evidence 

concerning la.ck of probable cause to hold defendant on the 

alleged violation. The District Court also noted that the 

issuance of the bench warrant after an examination by an 

impartial judicial officer of the affidavit and petition 

afforded the defendant a preliminary showing of probable 

cause. Under these circumstances, we hold the defendant was 

not denied due process for the State's failure to provide an 

appearance denominated as a preliminary or probable cause 

hearing. 

In his second issue, the defendant contends that the 

filing of a petition and affidavit to revoke probation in 

District Court circumvents the process due defendant. This 

procedure afforded him the same judicial determination of 

probable cause that an unconvicted defendant receives in a 

criminal proceeding. There is no reason to afford a 

probationer any more due process than that which is 

guaranteed to an unconvicted defendant. We hold that the 

statutory procedure which was followed here, did not deny 

defendant due process. 
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: