Barnett v. State, A89A2074

• Decision Date: 15 March 1990
• Docket Number: No. A89A2074,A89A2074
• Parties: BARNETT v. The STATE.
• Court: Georgia Court of Appeals

Page 322

392 S.E.2d 322

194 Ga.App. 892

BARNETT v. The STATE.

No. A89A2074.

Court of Appeals of Georgia.

March 15, 1990.

Kathleen J. Anderson, for appellant.

Harry N. Gordon, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

The State brought this probation revocation proceeding against defendant alleging he violated the terms and conditions of his probation in a number of particulars. Specifically, it was alleged that defendant violated the rules of the Athens Diversion Center ("ADC") as follows: "Violation ADC Rule # 6 Failure to be at assigned destination 4-7-89 and 4-10-89. Violation ADC Rule # 3 Fired from job 4-11-89. Violation ADC Rule # 4 Failure to turn in pay to center 4-14-89. Violation ADC Rule # 1 Failure to obey order of staff member 4-18-89. Violation ADC Rule # 3 Fired from job 4-28-89. Violation of ADC policy to submit to urine test when ordered on 5-16-89. Disorderly conduct 5-17-89." Following a hearing, the trial court determined that defendant violated "the terms of probation contained in the sentence imposed upon him ... as alleged in the petition for revocation of probation except the alleged discharge of the Defendant on April 28, 1989...." Based on the alleged violations, the trial court modified defendant's probation in certain particulars. We granted defendant's application for a discretionary appeal. Held:

With regard to a majority of the allegations set forth in the petition, the only evidence introduced by the State was hearsay evidence. Although jurisdictions differ, see Annot., Admissibility of Hearsay Evidence in Probation Revocation Hearings, 11 ALR4th 999 (1982), in this jurisdiction hearsay evidence is inadmissible in a probation revocation proceeding. See Holbrook v. State, 162 Ga.App. 400, 402(2), 291 S.E.2d 729 (1982). See generally Yarber v. State, 162 Ga.App. 475, 291 S.E.2d 780 (1982); Bradshaw v. State, 163 Ga.App. 819, 821(3), 296 S.E.2d 119 (1982).

Of course, hearsay evidence is without probative value. Collins v. State, 146 Ga.App. 857(1), 860, 247 S.E.2d 602 (1978). Thus, such evidence is incapable of supporting a trial court's findings whether or not objection was lodged.

In relying upon hearsay evidence to support the majority of its findings in the case sub judice, the trial court erred. See Mills v. Bing, 181 Ga.App. 475, 477(2), 352 S.E.2d 798 (1987). However, inasmuch as some of the allegations in the petition were supported by probative evidence (e.g., the failure to submit to a urine test on May 16, 1989, and the disorderly conduct on May 17, 1989), it cannot be said the trial court erred in modifying defendant's probation. See Allen v. State, 172 Ga.App. 323, 323 S.E.2d 242 (1984).

Judgment affirmed.

CARLEY, C.J., and DEEN and BANKE, P.JJ., and BIRDSONG, SOGNIER, POPE and COOPER, JJ., concur.

BEASLEY, J., dissents.

BEASLEY, Judge, dissenting.

I dissent because, based on the ruling that the court took into account inadmissible evidence in determining to revoke probation and in fashioning a modified sentence, the case should be remanded for the trial court's reconsideration of the modified sentence. Since this court cannot substitute its judgment for that of a trial court in determining what is an appropriate sentence when a defendant has violated probation, it cannot assume that the court would have set the same sentence had it not considered the alleged infractions for which there was no competent evidence.

Appellant had originally negotiated pleas of guilty to entering an auto and theft by taking of an auto. He had been sentenced to serve three years, to be followed by five years of probation with certain conditions. After imprisonment, probation was started but was revoked and appellant was sent to the local diversion center. Alleged violations in that environment brought another revocation hearing, and we have now ruled that "a majority of the allegations" were inadequately proven. Thus the modification of sentence...