
    PEOPLE v. HERNANDEZ
    Criminal Law—Due Process—Right to Assistance of Counsel-Revocation of Probation.
    Due process requires that a person who was convicted of a crime and placed on probation be represented by counsel at all hearings regarding the revocation of such probation which includes sentencing, unless defendant intelligently waives the assistance of counsel.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 309, 313, 316, 568.
    Appeal from Saginaw, Borehard (Fred J.), J.
    Submitted Division 3 December 3, 1968, at Lansing.
    (Docket No. 5,033.)
    Decided December 19, 1968.
    ' Patrick John Hernandez was convicted of carrying a concealed weapon without a license and was placed on probation. Subsequently, defendant was found to have violated the terms of his probation and was sentenced to prison. Defendant appeals.
    Sentence vacated and cause remanded.
    
      Maurice Black, for defendant on appeal.
   Per Curiam.

September 21, 1967, after a probation violation hearing, defendant’s probation was revoked and he was sentenced to prison. Defendant was not represented by counsel-at the revocation hearing; he was not advised of his right to counsel; nor was it determined whether or not defendant desired counsel. On September 21, 1967, the law did not require that defendant be represented by counsel at a probation violation hearing nor that he be advised of his right to counsel. On the basis of Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336), defendant appeals and attacks the validity of the probation revocation and sentence.

Mempa, supra, was decided November 13, 1967, and it established that counsel must be afforded at a revoeation-of-probation hearing that includes sentencing. McConnell v. Rhay (1968) 393 US 2 (89 S Ct 32, 21 L Ed 2d 2), decided October 14, 1968, made the Mempa doctrine retroactive.

Defendant’s sentence is vacated and the cause is remanded to the trial court for a probation violation hearing with counsel present, unless defendant intelligently waives counsel for such hearing.

T. GL Kavanagh, P. J., and Quinn and Miller, JJ., concurred.  