State v. Harris

621 So. 2d 851, 1993 La. App. LEXIS 2496, 1993 WL 254919
Louisiana Court of Appeal·Decided June 29, 1993·No. Nos. 93-KA-37, 93-KA-38·Published·Cited by 3 cases

Opinion

KLIEBERT, Chief Judge.

Defendant Joseph Harris appeals the revocation of his probation. There is no right of appeal from a probation revocation. LA-C.Cr.P. Article 912. However, in the interest of judicial economy, we will consider these consolidated appeals as applications for supervisory writs 1 and grant the writ of review but, for the reasons which follow, deny the relief sought.

Defendant was originally charged by separate bills of information with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967 A and with possession with intent to distribute over 32 grams of cocaine in violation of LSA-R.S. 40:967 F. On May 14, 1992, defendant withdrew his previous pleas, entered a plea of guilty in each criminal action to the reduced charge of possession of cocaine in violation of LSA-R.S. 40:967, and waived sentencing delays. The trial court sentenced defendant to serve three years in parish prison on each offense, execution of which was suspended and defendant was placed on three years active probation. Concurrent service of those sentences was ordered. Among the general and special conditions of his probation, defendant was required to “[rjefrain from criminal conduct, specifically the violation of any State, Federal, Local or Municipal Law” and to “[rjefrain from owning or possessing firearms or other dangerous weapons.”

On September 2, 1992, defendant’s probation officer filed a Rule to Revoke Probation, executed under oath, alleging several grounds for the revocation of defendant’s probation, including criminal conduct and possession of firearms by defendant. After a hearing on the rule, the trial judge found that defendant had engaged in criminal conduct. He therefore revoked defendant’s probation and ordered execution of defendant’s original parish prison sentences, subject to credit for time already served.

Defendant urges us to set aside the revocation of his probation on two grounds. He first contends that revocation proceedings in this case were improperly instituted without an arrest warrant supported by an affidavit from defendant’s probation officer. Secondly, defendant argues that the evidence presented at the hearing on the [853]*853rule to revoke failed to establish that defendant engaged in criminal activity while on probation.

Probation revocation proceedings are initiated with either the issuance of a warrant for the arrest of the defendant for violation of any of the conditions of probation or the issuance of a summons to appear and answer a charge of violation or threatened violation. LA-C.Cr.P. Article 899 A. In either case, an affidavit executed under oath by a complainant must support the warrant or the summons. LAC.Cr.P. Articles 202, 209, 385. If a supporting affidavit is lacking, the warrant or summons is invalid and the revocation proceeding is improperly instituted. State v. Forest, supra.

In the present case, defendant’s probation officer instituted the revocation proceeding by filing a Rule to Revoke Probation alleging that defendant violated conditions of his probation. Defendant’s probation officer executed the rule under oath as evidenced by his affidavit supporting the rule. Attached to the rule was an order for defendant to appear and show cause why his probation should not be revoked. The Louisiana Supreme Court has held that such an order attached to a rule to revoke probation constitutes a summons to appear. State v. Broussard, 408 So.2d 909 (La.1981). Since the rule to revoke in this case was supported by the affidavit of defendant’s probation officer, the revocation proceeding against defendant was properly instituted with the issuance of the order directing defendant to appear and show cause why his probation should not be revoked. State v. Forest, supra. The absence from the record of a warrant for defendant’s arrest for violating conditions of his probation is immaterial and has no bearing on the validity of the revocation proceedings initiated by summons in this case. The first ground asserted by defendant in challenging his probation revocation thus has no merit.

Defendant next urges us to set aside the revocation of his probation because the testimony presented at the hearing on the rule to revoke did not establish that defendant violated a probationary condition by engaging in criminal activity. At a revocation hearing, the state may show a violation of the conditions of probation either by establishing a conviction or by proof of the actual commission of a crime, apart from conviction. State v. Dabney, 594 So.2d 581 (5th Cir.1992), writ denied, 599 So.2d 317 (La.1992).

In this case, the state’s proof of the defendant’s criminal activity consisted of the testimony of defendant’s probation officer, as corroborated by the testimony of a fellow probation officer, that defendant admitted to selling cocaine while on probation. Scott Rome, defendant’s probation officer, testified that defendant came to the probation office for processing on June 30, 1992. Defendant was wearing a paging beeper which activated and displayed a telephone number in the presence of Officer Rome and another probation officer, Richard Wiedenhaft. After defendant left the probation office to go to the Jefferson Parish Sheriff’s Office to register as a felony probationer, Officers Rome and Wiedenhaft called the telephone number displayed by the beeper and were told by the party responding to the call to tell defendant to make sure he brought the “Idaho potatoes.” Shortly thereafter, the sheriff’s office contacted Officer Rome and advised that defendant was being taken into custody on outstanding attachments for traffic violations. While walking from the probation office to central lock-up to investigate the situation, Officer Rome passed defendant’s parked automobile and saw a marijuana seed on the front seat and what appeared to be a gun barrel protruding from under the seat. At Officer Rome’s request, Officer Wiedenhaft drove to central lock-up to meet Officer Rome and the defendant, who had posted bond for his own release, and the three drove back to defendant’s parked car where they were joined by Gretna police officers and a drug-sniffing dog. With defendant’s consent, the automobile was searched. The gun protruding from beneath the seat was determined to be a toy weapon. The drug-sniffing dog located an approximate [854]*854$1500.00 sum of cash in the automobile. The dog alerted on the cash because of cocaine residue on the bills.

Officers Rome and Wiedenhaft confronted defendant with the large sum of cash and with the marijuana seed found on the front seat. Defendant admitted to the officers that he had been smoking marijuana earlier that day and further admitted that he had been selling cocaine. Officers Rome and Wiedenhaft each testified that defendant told them that the money found in the automobile was to be used to pay off defendant’s debt for cocaine provided to him to sell. This money, according to defendant, constituted the “Idaho potatoes” referred to when the probation officers called the telephone number displayed on defendant’s beeper.

Officers Rome and Wiedenhaft also testified that they found a 12 gauge shotgun during a consent search of defendant’s residence on July 29, 1992. When the officers arrived at the residence on that date, defendant’s girlfriend answered the door and advised that defendant was not present. Believing the defendant to be inside, the officers asked for and received the woman’s consent to enter the residence and verify the defendant’s absence.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Harris, 621 So. 2d 851, 1993 La. App. LEXIS 2496, 1993 WL 254919 (La. Ct. App. 1993).

621 So. 2d 851 (State v. Harris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Anderson
776 So. 2d 1289 (Louisiana Court of Appeal, 2000)
State v. Hale
652 So. 2d 118 (Louisiana Court of Appeal, 1995)
State v. Manson
650 So. 2d 327 (Louisiana Court of Appeal, 1995)