Bailey v. State

1972 OK CR 72, 494 P.2d 1252

• Court: Court of Criminal Appeals of Oklahoma
• Decided: March 8, 1972
• Docket: A-16901
• Status: Published

Opinions

BUSSEY, Presiding Judge:

Gary Powell Bailey, hereinafter referred to as defendant, entered a plea of guilty in the District Court of Adair County, Oklahoma, to the offense of Burglary in the Second Degree, on April 23, 1970, and received a two-year suspended sentence. Said suspension was ordered revoked on July 16, 1971, and from said order of revocation, a timely appeal has been perfected to this Court.

At the revocation hearing, Lozier Brown testified that he was employed as an officer of the Department of Corrections and that the defendant was assigned to him on May 4, 1970. On May 7, 1970, the defendant appeared at Brown’s office and they went over the rules and regulations of probation. On June 4, 1970, defendant made the May report; on July 14, he made the June report. Defendant failed to report in July, August, and September. On October 12, 1970, the defendant appeared at the probation office and filed reports for July, August, and September, and was reprimanded for late reports and advised not to be late any more.

On November 4, 1970, the defendant made the October report. On November 16, 1970, the parole officer’s investigation revealed that the defendant had gone to California. Defendant failed to report in December, 1970, and January, 1971. On February 2, 1971, a Motion to Revoke Defendant’s Suspended Sentence was filed. Defendant appeared in the probation office on February 12, 1971, and filed reports for December and January. Defendant failed to file additional reports as of the date of the revocation hearing on July 16, 1971.

Defendant’s mother testified that the defendant had difficulty obtaining employment during this period of time and had hepatitis, being hospitalized on December 26, 1970, for a period of twelve (12) days.

We observe that two of the court-imposed conditions of the defendant's sentence were that he could not leave the State without written permission of the correction office, and that he report in writing to the Corrections Department as directed by them. The evidence is uncon-tradicted that the defendant failed to make timely reports to his probation officer. The defendant argues in his brief that the parole officer’s testimony as to the defendant leaving the State was based on hearsay. We are of the opinion that the parole officer’s conclusion that the defendant left the State, although based upon hearsay testimony is admissible in a revocation hearing. 24 C.J.S. Criminal Law § 1572(4) states: “Evidence which would be inadmissible in a criminal trial may be considered in revocation hearing.” In United States v. Cates, 402 F.2d 473 (1968), the Fourth Circuit stated:

“Cates puts forward a third argument, also frivolous. This is that the evidence against him at the revocation hearing was largely hearsay. Foreclosed now from making this contention because he did not object at the hearing, Cates also miscomprehends the nature of such a proceeding. A revocation hearing is an informal proceeding and rules of evidence need not be strictly observed.”

See also United States v. Register, 360 F.2d 689, cert. den., 385 U.S. 817, 87 S.Ct. 37, 17 L.Ed.2d 55.

The Order Revoking the Suspended Sentence is, accordingly, affirmed.

SIMMS, J., concurs.