Brown v. State

• Decision Date: 14 July 1983
• Docket Number: No. 65781,65781
• Citation: 167 Ga.App. 473,306 S.E.2d 728
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 728

306 S.E.2d 728

167 Ga.App. 473

BROWN v. The STATE.

No. 65781.

Court of Appeals of Georgia.

July 14, 1983.

George W. Woodall, Albany, for appellant.

Hobart M. Hind, Dist. Atty., Britt R. Priddy, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

A petition was filed alleging that appellant had violated the terms of his probation "[i]n that on July 9, 1982, subject was arrested and accused of having committed the offense of rape." A hearing was held, at the conclusion of which the trial court made the following oral statement: "I find, as a matter of fact, that [appellant] has violated the terms of his probated sentence; he may not be guilty of the offense of rape, but certainly there is evidence to find him guilty of child molestation or some lesser included offense...." A written order was subsequently entered which stated only that appellant's probation was being revoked for the reason "[a]s set forth in petition." It is from this final order of revocation that appellant appeals.

Were it not for the trial court's oral pronouncement of the findings it had made in the instant case, we would be constrained to hold that the final written order evidenced a clear finding that appellant had violated his probation by committing the crime of rape. State v. Brinson, 248 Ga. 380, 283 S.E.2d 463 (1981). However, because the trial court's oral statement of its findings is apparently inconsistent with the final written order, the actual basis for the revocation of appellant's probation remains in doubt as to whether the trial court found that appellant had violated his probation by the commission of rape "as set forth in the petition," or child molestation, or some other lesser included offense. Since this confusion and doubt did not exist on the record in Brinson, we do not construe that decision as authority which would preclude remanding of the instant case to the trial court for the entry of a written definitive statement as to reasons why appellant's probation was revoked. Such a disposition of the instant appeal would not be "elevating a superfluous exercise to the level of due process," because from the record before us we cannot "ascertain the basis for revocation of the defendant's probation." State v. Brinson, supra at 381, 283 S.E.2d 463. Accordingly, the instant case is remanded to the trial court for entry of a written statement by the court showing the reasons for revoking appellant's probation.

Case remanded with direction.

SHULMAN, C.J., QUILLIAN, P.J., and BANKE, SOGNIER and POPE, JJ., concur.

DEEN and McMURRAY, P.JJ., and BIRDSONG, J., dissent.

DEEN, Presiding Judge, dissenting.

"[A] probation revocation hearing is not a trial on a criminal charge. Rather it is a hearing to determine judicially whether the conduct of the defendant during the probation period has conformed to that outlined in the order of probation." Robinson v. State, 154 Ga.App. 591, 593(2), 269 S.E.2d 86 (1980); Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313 (1959).

Technical niceties applicable during a criminal trial are not required at a probation revocation hearing. Even where there is not enough evidence for conviction "beyond a reasonable doubt" as to a separate crime, one's probation as to the first crime committed may be revoked on slight evidence of the same separate charge for which the acquittal was obtained. Johnson v. State, 142 Ga.App. 124, 235 S.E.2d 550 (1977). "[T]he present trend of the case law is away from the overly-technical application of the fatal variance rule expressed in these and other cases." Ingram v. State, 137 Ga.App. 412, 415, 224 S.E.2d 527 (1976).

There appears to be a distinction and difference in the cases applicable to a criminal trial and in the hybrid civil-criminal revocation hearing:

(a) As to the criminal trial. In the case of Hill v. State, 246 Ga. 402, 405, 271 S.E.2d 802 (1980), and in the case of Drake v. State, 239 Ga. 232, 236 S.E.2d 748 (1977), the Supreme Court disapproved McFall v. State, 235 Ga. 105, 218 S.E.2d 839 (1975). The former case makes it clear that statutory rape is not a lesser included offense of forceful rape in a criminal trial. This is not necessarily the rule with respect to a probation revocation hearing.

(b) As to the probation revocation hearing. While statutory rape is a separate offense and requires proof of distinct elements than the offense of rape, the same is not true of the former crime committed against a young person and certain lesser included crimes such as child molestation (OCGA § 16-6-4) (Code Ann. § 26-2019), enticing a child for indecent purposes (Code Ann. § 26-2020) (OCGA § 16-6-5), and possibly fornication (OCGA § 16-6-18) (Code Ann. § 26-2010).

In the revocation probation case of Wilson v. State, 152 Ga.App. 695, 263 S.E.2d 691 (1979), it was held that the defendant's probation there was to be vacated because of an "arrest." In that case defendant was only given notice in the record of an allegation of an arrest, but evidence was developed at the hearing that the arrest was based on a sale of amphetamine. Nevertheless, this court concluded that in no event "could the appellant reasonably argue that he was not aware of the specific grounds upon which the revocation was based or that he could not adequately prepare his defense." Wilson v. State, supra, 697, 263 S.E.2d 691. In the case of Sosbee v. State, 155 Ga.App. 196, 270 S.E.2d 367 (1980), a petition for revocation as to theft by taking was filed, but the separate crime of theft by disposing was the final crime upon which the revocation was based. "He does not, under any circumstances we can think of, commit both crimes at once." Sosbee v. State, supra, 197, 270 S.E.2d 367. (Emphasis supplied.) This case was reversed because it was based on an offense not charged in the revocation. The case was followed in Moore v. State, 165 Ga.App. 59 299 S.E.2d 138 (1983), although it was a two-judge case, one judge concurring in the judgment only. The case of Radcliff v. State, 134 Ga.App. 244, 214 S.E.2d 179 (1975), indicated possible alcoholic intoxication but correctly held this was not one of the grounds stated in the petition for revocation. The one-judge case of Owens v. State, 153 Ga.App. 525, 527, 265 S.E.2d 856 (1980), concerning a probation revocation for possession of Quaaludes and marijuana,...