Dixon v. State

253 S.E.2d 238, 148 Ga. App. 818, 1979 Ga. App. LEXIS 1668

• Court: Court of Appeals of Georgia
• Decided: January 29, 1979
• Docket: 57001
• Status: Published

Opinion

Deen, Presiding Judge.

This defendant, serving a probated sentence for the offense of aiding an escape, was indicted, tried and convicted for the offense of murder. As in Johnson v. State, 240 Ga. 526 (242 SE2d 53) (1978) a complaint for revocation of probation based on a subsequent felony, as well as other lesser charges, was filed and it was stipulated that the evidence produced on. the trial of the subsequent indictment would constitute the evidence to be used on the revocation hearing.

In the Johnson case the defendant was acquitted on the trial of the subsequent indictment, but the evidence on that trial was nevertheless held by the Supreme Court sufficient to sustain the trial court’s revocation of probation judgment on the ground that the quantum of evidence necessary for the criminal trial (persuasion beyond a reasonable doubt) "is not necessary to justify the revocation of a sentence of probation.” Id., p. 527.

In the present case the defendant was convicted of murder, and the brief of evidence in that case which is appended to the record in this case is strongly persuasive of the fact that the defendant was guilty. It is accordingly sufficient as a basis for the judgment of revocation. Although at the time this appeal was filed the murder case was pending on appeal in the Supreme Court, that case has since been affirmed. Dixon v. State, 243 Ga. 46 (1979).

Submitted January 8, 1979 Decided January 29, 1979. Thompson & Petrella, J. Roger Thompson, Frank J. Petrella, for appellant. V. D. Stockton, District Attorney, Michael H. Crawford, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray and Shulman, JJ., concur.