Johnson v. State

235 S.E.2d 550, 142 Ga. App. 124, 1977 Ga. App. LEXIS 1504

• Court: Court of Appeals of Georgia
• Decided: April 5, 1977
• Docket: 53146
• Status: Published

Opinions

Shulman, Judge.

Appellant was tried on an indictment for burglary and found not guilty by the jury. Appellant had been serving a previous sentence of four years on probation. A probation revocation petition was filed before indictment and trial on the burglary charge, but a hearing was not held on that petition until one day after his acquittal. Both parties stipulated that the evidence produced on the trial for burglary would be the same evidence upon which the probation revocation petition would be reviewed and decided. After a hearing, the trial judge entered an order revoking the balance of appellant’s probation.

Appellant offers two enumerations of error: that the trial court committed reversible error by revoking the probation and that the trial court committed reversible error by subjecting appellant to double jeopardy in violation of the 5th and 14th Amendments of the United States Constitution.

1. This is apparently a case of first impression in Georgia, in view of the fact that probation was revoked after a finding of not guilty to a criminal charge and the same evidence was used for determination at the probation revocation hearing.

The Supreme Court of the United States in the case of Morrissey v. Brewer, 408 U. S. 471, 480, states: "... [T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.”

In the case of United States v. Clanton, 419 F2d 1304 (5th Cir., 1969), the court held that a revocation of probation was not an abuse of discretion even though a state charge against a probationer growing out of the incident for which the revocation was demanded had been dismissed. The court stated, on p. 1305, " 'All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation’ . . . The law is well established that revocation of probation is an exercise of the trial court’s broad discretionary power, and such an action will not be disturbed in the absence of a clear showing of abuse of that discretion.”

Revocation of probation does not require proof sufficient to sustain a criminal conviction. Pickens v. Texas, 497 F2d 981, 982 (5th Cir., 1974).

In Georgia, Chief Judge Bell, speaking for this court in the case of Dickerson v. State, 136 Ga. App. 885, 886 (222 SE2d 649) stated: "It would indeed be ridiculous to hold (as appellant would have us do) that where an act on which the revocation is based is a felony, that it is erroneous for the hearing judge to have based the revocation on that accusation unless the accused shall have first been tried and found guilty of the criminal charge. To hold that would be to elevate a felony to a legal status more respectable than an ordinary and reasonable condition expressed in a probationary sentence, the violation of which would not constitute even a misdemeanor.”

We are not unmindful that strong dissents were also written by judges of this court in that decision. However, the Georgia law with respect to revocation of probation now seems to be clear.

An earlier case enunciating the same principle is that of Johnson v. State, 214 Ga. 818, 819 (108 SE2d 313): "A hearing of this character is not a trial on a criminal charge, but is a hearing to determine judicially whether the conduct of the defendant during the probation period has conformed to the course outlined in the order of probation. If the act which violated the probation should happen to be a criminal one, it does not thereby change the character of the hearing.” See also Dutton v. Willis, 223 Ga. 209, 211 (154 SE2d 221, 234).

This court recognized the "slight evidence” rule necessary to support a finding of a probationary violation in the cases of Dickerson v. State, 136 Ga. App. 885 (222 SE2d 649); Scott v. State, 131 Ga. App. 504 (206 SE2d 137); David v. State, 139 Ga. App. 335 (228 SE2d 362); and Hammond v. State, 139 Ga. App. 365 (228 SE2d 386).

It is therefore well settled that the procedure for holding a proceeding for probation revocation is different from that of a criminal prosecution. ". . . The cases applying this statute are uniform in holding that the quantum of evidence sufficient to justify revocation of probation is less than that necessary to sustain a conviction in the first instance, and where there is even slight evidence of misconduct the appellate court will not interfere with revocation unless there has been manifest abuse of discretion.” Christy v. State, 134 Ga. App. 504, 507 (215 SE2d 267).

"The rule in this state has been that as to revocation of probation 'it is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence.’ Cooper v. State, 118 Ga. App. 57, 58 . . . 'The evidence did not have to exclude every other hypothesis than that of the guilt of the accused. In other words, the court did not have to be convinced beyond a reasonable doubt that defendant had violated a condition of his probation in order to revoke it.’ ” Id.

It follows therefore that probation revocation is discretionary with the trial court and that unless there is a manifest abuse of this discretion, this court will not disturb the judgment.

Submitted January 10, 1977 Decided April 5, 1977 Rehearing denied April 29, 1977 John W. Timmons, Jr., Jack H. Affleck, Jr., for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

Based on the foregoing, we find no violation of appellant’s constitutional guarantees.

2. Double jeopardy limitations are traditionally viewed as applicable only to successive prosecutions for the same offense. Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469). As stated above, a probation revocation hearing is only a hearing to determine whether the conduct of the defendant during the probation period has conformed to the terms and conditions outlined in the order of probation. Dutton v. Willis, 223 Ga. 209, 211, supra; Scott v. State, 131 Ga. App. 504, supra. The Fifth Amendment prohibition against putting any person twice in jeopardy of life or limb applies only to twice subjecting an individual to criminal processes for the same offense against the same sovereign; there is no bar to the state’s imposing both a civil and a criminal penalty for the same act. Alexander v. State, 129 Ga. App. 395 (199 SE2d 918). It is generally accepted in courts of this state as well as in the federal courts, that a proceeding to revoke a probated sentence is not a criminal proceeding. It therefore follows that this enumeration of error is without merit.

While this court may, to some measure, be sympathetic with the plight of the appellant, that after having been acquitted of a criminal charge, his probation on a previous conviction was revoked, under the law we have no alternative but to affirm the judgment of the trial court.

Judgment affirmed.

Bell, C. J., Deen, P. J., Marshall and McMurray, JJ., concur. Quillian, P. J., Webb and Smith, JJ., dissent.