Norman Lee Brock v. State

• Court: Court of Appeals of Georgia
• Decided: March 27, 2026
• Docket: A26A0234
• Status: Published

Opinion

FOURTH DIVISION MCFADDEN, P. J., WATKINS and PADGETT, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

MARCH 27, 2026

In the Court of Appeals of Georgia

A26A0234. BROCK v. THE STATE.

PADGETT, Judge.

In January 2024, Norman Brock entered a non-negotiated Alford1 plea to

sexual battery against a child under the age of sixteen, and received a five-year

probated sentence under the First Offender Act, OCGA § 42-8-60. In June 2025,

Brock was alleged to have violated the conditions of his probation by committing the

offense of possession of a firearm by a convicted felon. Following a hearing, the trial

1 See North Carolina v. Alford, 400 US 25, 38 (91 SCt 160, 27 LE2d 162) (1970) (holding that a trial court can accept a guilty plea when there is a strong factual basis for the plea and the defendant clearly expresses a desire to enter it despite the defendant’s claims of innocence). court found that Brock committed the offense as alleged in the petition,2 adjudicated

him guilty of his original offense, and revoked the balance of Brock’s probation to be

served in confinement.

We granted Brock’s application for discretionary appeal, and Brock now

appeals, arguing that he was denied due process because of a “fatal variance”

between the offense the State alleged and the evidence adduced at the probation

revocation hearing. More specifically, Brock argues that the trial court committed

reversible error because, while the State charged him with possession of a firearm by

a convicted felon, it presented no evidence that he was a convicted felon at the time

the handgun was found in his home. We agree, as does the State.3

Under OCGA § 42-8-34.1(b), “[a] court may not revoke any part of any

probated . . . sentence unless the defendant admits the violation as alleged or unless

the evidence produced at the revocation hearing establishes by a preponderance of

the evidence the violation . . . alleged.” And generally, this Court will not interfere

with a revocation “unless there has been a manifest abuse of discretion on the part of

2 Probation officers testified that during a search of Brock’s home, a handgun was found in his nightstand drawer.

3 In its appellee brief, the State “concedes that the law . . . supports” Brock’s contention. We acknowledge and appreciate the State’s candor and fidelity to the law. 2 the trial court.” Dillard v. State, 319 Ga. App. 299, 299 (735 SE2d 297) (2012)

(citation modified). However, due process requires that

a defendant be given written notice of the claimed violation of his probation prior to a probation revocation hearing. In addition, in order to revoke the probationary features of a sentence the defendant must have notice and opportunity to be heard, the notice being sufficient to inform him not only of . . . the fact that revocation is sought, but the grounds upon which it is based. It may not be revoked where there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there be evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given. Likewise, if a judgment is based upon an offense not charged in the petition for revocation, it must be reversed.

Id. at 300 (quotation marks omitted).

Here, Brock was not a convicted felon when probation officers discovered his

possession of a firearm, and he was not charged with possession as a first-offender.

As such, the trial court’s revocation of his probation based on the commission of the

offense of possession of a firearm by a convicted felon was erroneous. See Ponder v.

State, 341 Ga. App. 276, 278(1) (800 SE2d 19) (2017) (holding the trial court

committed reversible error in revoking probation on ground not alleged in the State’s

petition); Williams v. State, 238 Ga. App. 310, 311 (520 SE2d 466) (1999) (reversing

trial court’s revocation based on charge of possession of a firearm by a first offender

3 where evidence showed defendant was no longer a first offender, but a convicted

felon; “[t]o permit the prosecution to prove that a crime was committed in a wholly

different manner than that specifically alleged in the indictment would subject the

accused to unfair surprise . . . and constitute a fatal variance” (citation modified)).

Accordingly, we reverse the trial court’s order revoking Brock’s probation and

remand the case for further proceedings consistent with this opinion. See Ponder, 341

Ga. App. at 279(2).

Judgment reversed and case remanded. McFadden, P. J., and Watkins, J., concur.