The issue before us is whether a probationer without the means to hire counsel has the right to court appointed counsel in a probation revocation proceeding.
AS 12.55.110 governs revocation of probation proceedings. This section of our Code of Criminal Procedure provides that:
Although AS 12.55.110 is couched in terms of revocation of a "suspended sentence," in light of the provisions of AS 12.55.080 it is apparent that AS 12.55.110 is applicable to probation revocations.
At the time petitioner came before the lower court for hearing upon the petition for probation revocation which had been filed against him, the following exchange took place between the court and petitioner:
The hearing then continued and at its conclusion the court found that petitioner had violated the terms and conditions of his probation and revoked petitioner's probation.
We hold that petitioner has, by virtue of the provisions of AS 12.55.110, the same right to be represented by counsel at a probation revocation proceeding as does the probationer who has funds with which to hire counsel.
In short, we cannot ascribe to our legislature an intent to draw a distinction, along economic lines, as to which probationers were to be accorded this statutory right to counsel. To construe AS 12.55.110 as embodying an intended dichotomy between probationers unable to afford counsel and others would, in our opinion, render the statute repugnant to the Equal Protection Clauses of both the Federal and Alaska Constitutions.
The Supreme Court of the United States has in its decisions in Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), struck down distinctions between indigents and those with means in regard to post conviction remedies. Admittedly these three decisions involved appeals in criminal cases and were not concerned with probation or parole issues, but as was observed by Judge Sobeloff, in reference to these cases, in his concurring opinion in Jones v. Rivers, 338 F.2d 862, at 876 (4th Cir.1964):
What we do today is to refuse to sanction any discriminatory application between indigent probationers and others in the administration of the right to counsel granted by AS 12.55.110.
In reaching this conclusion we have rejected the state's contention that this court does not have jurisdiction to decide the issue of the right to court appointed counsel in the probation revocation proceeding in question. In support of this contention, the state argues that if the proceeding here is
Although petitioner has failed to comply with the requirements of subsections (2) and (5) of Rule 33(a), we are of the opinion that in view of the circumstances of this case, strict adherence to the provisions of Rule 33(a) should be dispensed with in order to avoid injustice.
We hold that petitioner's pro se application for a writ of habeas corpus is properly before us despite his technical failure to comply with the provisions of Rule 33(a).
The petition for a writ of habeas corpus is granted. The lower court's order of October 1, 1964, revoking petitioner's probation is reversed. The case is remanded for appointment of counsel for petitioner and further proceedings upon the September 29, 1964, petition for probation revocation. The custody of petitioner pending such further proceedings shall be determined by the superior court.
Section 2 of the Act provided:
Section 3 of the Act provided:
Since February 1964, AS 12.55.080 has been repealed and reenacted twice. See S.L.A. 1964, ch. 43, § 24; S.L.A. 1965, ch. 68, § 8.
On October 1, 1964, petitioner appeared for hearing upon the petition which alleged in part that the petitioner had violated the express conditions of his probation in that:
The lower court on the same day as the hearing also entered a final order which read in part:
Alaska Constitution, art. I, § 1, provides in part: