Brinson v. State

Court of Appeals of Georgia

Brinson v. State

279 S.E.2d 488, 158 Ga. App. 189, 1981 Ga. App. LEXIS 2121

CourtCourt of Appeals of Georgia

DecidedApril 6, 1981

Docket61390

StatusPublished

Cited by7 cases

This text of 279 S.E.2d 488 (Brinson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brinson v. State, 279 S.E.2d 488, 158 Ga. App. 189, 1981 Ga. App. LEXIS 2121 (Ga. Ct. App. 1981).

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Opinions

McMurray, Presiding Judge.

Defendant originally entered pleas of guilty to the offenses of robbery by use of force (1976), aggravated assault (1976), and burglary (1978). As to the offense of robbery by use of force he was sentenced on March 31, 1976, to serve 1 year in confinement, but because of his age he was committed to the Division for Children and Youth, Department of Human Resources. See Code Ann. Title 99; Allen v. Ricketts, 236 Ga. 294 (223 SE2d 633). Also, on March 31, 1976, defendant was sentenced to serve a term of 5 years as to the aggravated assault to be served on probation, including restitution to the victim. As to the offense of burglary, on February 15, 1978, defendant was sentenced to serve a term of 20 years, the first 3 in confinement, the balance on probation to run concurrently with all previous sentences.

A revocation of probation proceeding was initiated on September 5, 1980, wherein defendant was alleged to have violated the terms and conditions of probation. The terms and conditions of probation alleged to have been violated were to violate no state or federal law and be of general good behavior inasmuch as he has been accused of theft by taking, violation of state law by having in his possession a firearm (a .32 caliber Smith & Wesson); arrested for burglary as to two separate victims; a separate burglary of a veterinary clinic; and, the failure to maintain steady employment. He was thereafter arrested for violation of the probation and after a hearing his probation was revoked. He was ordered to “serve the balance of his sentence in such place of incarceration as the Director of Corrections may direct.” Defendant appeals. Held:

1. The case sub judice is remanded to the trial court for entry of a written statement by the court showing the evidence relied upon and the reasons for revoking defendant’s probation as required by Gagnon v. Scarpelli, 411 U. S. 778 (93 SC 1756,36 LE2d 656); Moore v. State, 151 Ga. App. 791 (1) (261 SE2d 730); Richardson v. State, 152 Ga. App. 679 (263 SE2d 539); and Tucker v. State, 157 Ga. App. 202.

2. In view of our holding in Division 1, we do not reach defendant’s other enumerations of error.

[190]*190Decided April 6, 1981 J. Lynn Rainey, for appellant. J. W. Morgan, District Attorney, for appellee.

Remanded with direction.

Quillian, C.J., Shulman, P.J., Banke, Birdsong, Carley and Sognier, JJ., concur. Deen, P.J., and Pope, J., dissent.

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McMurray, Presiding Judge.

Defendant originally entered pleas of guilty to the offenses of robbery by use of force (1976), aggravated assault (1976), and burglary (1978). As to the offense of robbery by use of force he was sentenced on March 31, 1976, to serve 1 year in confinement, but because of his age he was committed to the Division for Children and Youth, Department of Human Resources. See Code Ann. Title 99; Allen v. Ricketts, 236 Ga. 294 (223 SE2d 633). Also, on March 31, 1976, defendant was sentenced to serve a term of 5 years as to the aggravated assault to be served on probation, including restitution to the victim. As to the offense of burglary, on February 15, 1978, defendant was sentenced to serve a term of 20 years, the first 3 in confinement, the balance on probation to run concurrently with all previous sentences.

A revocation of probation proceeding was initiated on September 5, 1980, wherein defendant was alleged to have violated the terms and conditions of probation. The terms and conditions of probation alleged to have been violated were to violate no state or federal law and be of general good behavior inasmuch as he has been accused of theft by taking, violation of state law by having in his possession a firearm (a .32 caliber Smith & Wesson); arrested for burglary as to two separate victims; a separate burglary of a veterinary clinic; and, the failure to maintain steady employment. He was thereafter arrested for violation of the probation and after a hearing his probation was revoked. He was ordered to “serve the balance of his sentence in such place of incarceration as the Director of Corrections may direct.” Defendant appeals. Held:

1. The case sub judice is remanded to the trial court for entry of a written statement by the court showing the evidence relied upon and the reasons for revoking defendant’s probation as required by Gagnon v. Scarpelli, 411 U. S. 778 (93 SC 1756,36 LE2d 656); Moore v. State, 151 Ga. App. 791 (1) (261 SE2d 730); Richardson v. State, 152 Ga. App. 679 (263 SE2d 539); and Tucker v. State, 157 Ga. App. 202.

2. In view of our holding in Division 1, we do not reach defendant’s other enumerations of error.

[190]*190Decided April 6, 1981 J. Lynn Rainey, for appellant. J. W. Morgan, District Attorney, for appellee.

Remanded with direction.

Quillian, C.J., Shulman, P.J., Banke, Birdsong, Carley and Sognier, JJ., concur. Deen, P.J., and Pope, J., dissent.

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279 S.E.2d 488, 158 Ga. App. 189, 1981 Ga. App. LEXIS 2121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brinson-v-state-gactapp-1981.

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