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21 Wayne L. Rev. 1127 (1974-1975)
Constitutional Law - Due Process - Probationer Not Entitled to Use Immunity at Deferred Sentence Violation Hearing Held Prior to Trial for Same Incident

handle is hein.journals/waynlr21 and id is 1155 raw text is: CONSTITUTIONAL LAW-DUE PROCESS-PROBATIONER NOT ENTITLED TO USE IMMUNITY AT DEFERRED SENTENCE VIOLATION HEARING HELD PRIOR TO TRIAL FOR SAME INCIDENT Petitioner, a probationer,' was indicted for robbery. Prior to trial, petitioner refused to testify at a deferred sentence violation hearing based on the robbery charge2 for fear of risking self- incrimination in his pending trial.3 The court found petitioner in violation of his deferred sentence agreement and sentenced him to 12 years in prison. Petitioner, subsequently acquitted of the robbery charge, applied for a writ of habeas corpus.4 The district court, finding that petitioner had been forced to make an uncon- stitutional choice between his right to be heard and his privilege against self-incrimination, granted the application.5 On appeal, held, reversed. A probationer is not entitled to use immunity at a deferred sentence violation hearing held prior to trial for the same incident. Flint v. Mullen, 499 F.2d 100 (1st Cir. 1974), cert. denied, 419 U.S. 1026 (1974). Prior to 1967, the rights of probationers and parolees were largely a matter of legislative discretion, and the privilege against self-incrimination was not assiduously protected by the courts. For some 30 years, courts relied upon Escoe v. Zerbst,l a Supreme 1. Petitioner pleaded guilty to three counts of robbery in 1964 and was sentenced to prison on two of the counts. Pursuant to R.I. GEN. LAws ANN. § 12-19-19 (1969), petitioner entered into a deferred sentence agreement on the third count providing for a probationary period of 5 years following his release from prison. Flint v. Mullen, 499 F.2d 100, 101 & n.2 (1st Cir. 1974), cert. denied, 419 U.S. 1026 (1974). 2. Petitioner moved to have the violation hearing postponed until after trial, but his motion was denied in Flint v. State, 106 R.I. 823, 259 A.2d 416 (1969), and in Flint v. Rhode Island, No. 361 (1st Cir. Jan. 8, 1970). 3. The state contended that petitioner's real motivation was to avoid disclosure of the defense he planned to use at trial. The instant court proceeded on the assumption that both motives were present when petitioner failed to testify at the violation hearing. 499 F.2d at 101 n.1. 4. The application was made pursuant to 28 U.S.C. § 2254 (1970). 5. Flint v. Mullen, 372 F. Supp. 213 (D.R.I. 1973). 6. 295 U.S. 490 (1935). In Escoe, petitioner's probation was revoked without a hearing before a federal judge. Held, petitioner was entitled to a writ of habeas corpus because the government failed to comply with the statutory requirement of a revocation hearing. The Court explicitly declared that the relief granted to petitioner was not based on a

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