Clackler v. State

Citation130 Ga.App. 738,204 S.E.2d 472
Decision Date31 January 1974
Docket NumberNo. 48953,No. 2,48953,2
PartiesT. M. CLACKLER v. The STATE
CourtUnited States Court of Appeals (Georgia)

Rolader, Barham, Davis, Graham & McEvoy, William W. Barham, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Morris H. Rosenberg, Dennis Mackin, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The appellant, who had been serving a three-year probated sentence for aggravated assault, appeals from the order of revocation of his probation. Held:

1. The appellant contends that the trial judge erred in failing to give sanction to a previous court order allowing the probationer visiting rights with his children in his wife's custody, by construing the condition of probation, that the probationer not have any more trouble with his wife, as a limitation of his court-ordered visitation rights. The probationer did not offer as evidence the previous visitation order, hence he cannot raise this issue for the first time on appeal. See Turner v. Smith, 226 Ga. 448, 449, 175 S.E.2d 653. "(A) party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." White v. State, 230 Ga. 327, 333, 196 S.E.2d 849, 854, and cits. Moreover, it does not affirmatively appear from the record that the probationer's reasonable visitation rights under the previous court order (a copy of which has been filed in this court) were impaired either by the condition of probation or by its construction on the revocation of probation hearing.

2. It is contended that the trial judge erred in overruling the probationer's motion to dismiss the petition for revocation of probation on the ground that the condition of probation, 'not to have any more trouble with his wife,' was too vague and indefinite.

The last sentence of Section 3.2(b) of the American Bar Association's tentative draft of 'Standards Relating to Probation,' Institute of Judicial Administration (1970), which section is quoted in part in Inman v. State, 124 Ga.App. 190, 194, 183 S.E.2d 413, provides that conditions 'should not be so vague or ambiguous as to give no real guidance.' Although the trial judge was not limited to the imposition of only those restrictions enumerated in Code Ann. § 27-2711 (Ga.L.1956, pp. 27, 32; 1958, pp. 15, 23; 1965, pp. 413, 416; Gay v. State, 101 Ga.App. 225(1), 113 S.E.2d 223, even 'such terms as 'undesirable people' and 'general good behavior' border on the fuzzy and would be open to differing interpretations . . .' Inman v. State, supra, 124 Ga.App. p. 194, 183 S.E.2d p. 415. The condition, not to have any more trouble with his wife, is probably open to differing interpretations, ranging all the way from an implication that more trouble means trouble similar to that in which he had been involved previously, of which he may be presumed to be aware, (Daniel v. Whitlock, 222 Ga. 192, 195(2), 149 S.E.2d 79)-to the generalized and impracticable injunction of that trouble with wives that is accepted by some as the common lot of married mankind. It is unnecessary to decide the validity of this condition, however, in view of our holding in Division 3 hereinafter.

3. '(T)he quantum of evidence sufficient to justify revocation of probation is less than that necessary to sustain a conviction in the first instance. Harrington v. State, 97 Ga.App. 315, 319, 103 S.E.2d 126. Only slight evidence is required to authorize revocation, Sellers v. State, 107 Ga.App. 516,...

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5 cases
  • Dickerson v. State
    • United States
    • Georgia Court of Appeals
    • 21 Noviembre 1975
    ...Johnson such as Sellers v. State, 107 Ga.App. 516, 130 S.E.2d 790; Scott v. State, 131 Ga.App. 504, 206 S.E.2d 137 and Clarkler v. State, 130 Ga.App. 738, 204 S.E.2d 472. It would indeed be ridiculous to hold (as appellant would have us do) that where an act on which the revocation is based......
  • Williams v. Lawrence
    • United States
    • Georgia Supreme Court
    • 8 Enero 2001
    ...662 (1982) (following Simmons), rev'd on other grounds, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); Clackler v. State, 130 Ga.App. 738, 739-740(3), 204 S.E.2d 472 (1974). Compare Goodson v. State, supra at 284, 444 S.E.2d 603 (alternative ground not set forth in petition for revoca......
  • Veats v. State
    • United States
    • Georgia Court of Appeals
    • 8 Octubre 2009
    ...42-8-34.1(b). In a probation revocation hearing, "[o]nly slight evidence is required to authorize revocation." Clackler v. State, 130 Ga.App. 738, 739(3), 204 S.E.2d 472 (1974). Veats first argues that he was not in knowing possession of the video and never watched it, as he did not have a ......
  • Allstate Ins. Co. v. Prance, 48877
    • United States
    • Georgia Court of Appeals
    • 31 Enero 1974
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