P. v. Johnson
Defendant Eric Lee Johnson admitted violating the terms of his probation in two criminal cases based on a positive drug test. Based on a Johnson waiver,[1]the trial court ordered defendant to serve six months in jail in one case (case No. S04CRF0358) with no credit for time already spent in custody and no conduct credits for the incarceration to come, and with his probation in that case to terminate upon completion of the jail term. In the other case (case No. S05CRF0263), the court imposed a two-year prison term, but stayed execution of that sentence and reinstated defendant on probation subject to various conditions. After the sentencing hearing, on the same day he filed a notice of appeal in both cases, defendant filed a Marsden[2]motion for a new attorney. The trial court summarily denied the motion without a hearing, concluding the motion was untimely because there were no hearings scheduled and defendant could have raised the issue earlier. On appeal, defendant asserts the trial court erred in denying his Marsden motion without a hearing. Defendant also contends the trial court erred in not construing an earlier letter to the court as a Marsden motion. Court disagree on both counts. Accordingly, Court affirm.
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