State v. Walter

(specially concurring).

I concur in the foregoing opinion only for the reason that our Supreme Court had spoken on the matter and, therefore, has mandated my concurrence. I believe, however, that the matter involved merits closer examination. The judicial cliché that “probation is a matter of grace and not of right” was spawned in the case of Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932) and perpetuated in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). The best that can be said about the principle enunciated by these cases is that it is easy to…