State v. Michael Douglas White

Judge GRATTON,

specially concurring.

I concur with the majority opinion. However, I would add a strong caution against using the mere minutes from a probable cause hearing and the order finding probable cause as the sole basis of proof of a probation violation, particularly one involving a separate crime. Such minutes are a summary of testimony, not testimony. In this instance, the district court, at best, made only an implied finding of reliability. See State v. Farmer, 131 Idaho 803, 806 , 964 P.2d 670, 673 (Ct.App.1998) (requiring a reliability finding). In addition, the district court made no express findings as to any purported facts supporting the determination of probation violation. See State v. Chapman, 111 Idaho 149, 152-153 , 721 P.2d 1248, 1251-1252 (1986) (requiring findings). Consequently, it is made to appear that the court merely applied the probable cause determination itself as sufficient to establish the probation violation when a greater showing is required. See Morrissey v. Brewer, 408 U.S. 471, 488 , 92 S.Ct. 2593, 2603-04 , 33 L.Ed.2d 484, 498-99 (1972) (evidentiary hearing “must be the basis for more than determining probable cause”). While proof of a recent conviction would support a finding of a probation violation, it is not a prerequisite. State v. Wilson, 127 Idaho 506, 510-11 , 903 P.2d 95, 99-100 (Ct.App.1995). This is so, because a probation violation, unlike a criminal conviction, need not be proven beyond a reasonable doubt. State v. Dempsey, 146 Idaho 327, 329 , 193 P.3d 874, 876 (Ct.App.2008). Nonetheless, more than a finding of probable cause is necessary and citation to the probable cause hearing minutes and order, without more, is in my view insufficient.