Couch v. State, A00A1605.
| Decision Date | 22 September 2000 |
| Docket Number | No. A00A1605.,A00A1605. |
| Citation | 246 Ga. App. 106,539 S.E.2d 609 |
| Parties | COUCH v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Spix, Krupp & Reece, Mark V. Spix, Bruce S. Harvey, Atlanta, for appellant.
Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.
In this discretionary appeal, Couch appeals the judgment of conviction entered upon a revocation of first offender's probation. Because the trial court failed to credit Couch with time already served on probation, we remand for resentencing.
On December 16, 1993, Couch pled guilty to one count each of aggravated assault on a peace officer, violation of the Georgia Controlled Substances Act (possession of cocaine), driving under the influence, fleeing or attempting to elude a police officer, and reckless driving. He was sentenced as a first offender to boot camp plus ten years probation and a fine for aggravated assault and one year of probation to be served concurrently for possession of cocaine. He was also sentenced to three years of probation for the remaining counts, to be served concurrently.
On October 6, 1999, the State filed a petition to revoke Couch's probation for committing the subsequent offenses of obstruction, DUI, hit and run, and failing to avoid intoxication. After a hearing, the court revoked probation based on the finding that Couch had committed the offenses of obstruction DUI, and hit and run. The court adjudged Couch guilty of aggravated assault on a peace officer. He sentenced Couch to eighteen years with the first five years to be served followed by probation and ordered him to pay a fine and probation supervision fees. The court further ordered that the sentence was "in addition to any time [and] sentence already served."
1. The State concedes that the court erred by failing to give Couch credit for the over six years time already served on probation. Franklin v. State, 236 Ga.App. 401, 402(1), 512 S.E.2d 304 (1999). The sentence is vacated and the case remanded for resentencing.
2. Couch urges that the court erred in finding sufficient evidence of a violation of probation.
The evidence produced at the revocation hearing must establish the violations of probation by a preponderance of the evidence. OCGA § 42-8-34.1(a). "Hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding." Goodson v. State, 213 Ga.App. 283, 284, 444 S.E.2d 603 (1994), applying Barnett v. State, 194 Ga.App. 892, 893, 392 S.E.2d 322 (1990). "Thus, such evidence is incapable of supporting a trial court's findings whether or not objection was lodged." Id. But if some of the allegations regarding revocation are supported by admissible evidence, the revocation decision will be affirmed. Id.
(a) Couch was charged with obstruction because he failed to come to the door of his home at the request of probation officers, and instead, he had to be captured outside at gunpoint. Couch contends that the charge was based on several hearsay statements from his wife and from the nontestifying probation officer. But, nonhearsay evidence that the officers identified themselves, that they asked Mrs. Couch about Couch's whereabouts, that Couch did not come to the door, that she was communicating with someone at the back of the house, and that Couch was found hiding in the bushes outside the home is sufficient to support the finding by a preponderance of the evidence that Couch was obstructing the officers from their duty. See OCGA § 16-10-24(a). But see Porter v. State, 224 Ga.App. 276, 280(2), 480 S.E.2d 291 (1997) ().
(b) Couch contends the charges of DUI and hit and run were not based on sufficient admissible evidence.
Mandy Dwyer testified that she was the victim of a hit and run accident. She stated that her burgundy colored car was hit by a burgundy or purple Toyota Tacoma pickup truck. A brief glimpse revealed that the driver was a white man. A bystander stopped and gave her the license tag number of the Tacoma.
Officer Thompson testified that she responded to a call about an accident in which she was given a description of the truck and the tag number. She got the same information directly from Dwyer as well. Thompson ran a check on the license number and found that the defendant was the owner of a Toyota Tacoma pickup. She went to his residence about 45 minutes after the accident, found a purple Tacoma in the driveway with damage on the driver's side bumper, and knocked on the door. Mrs. Couch invited the officer in, and Thompson woke up Couch and read him his Miranda rights. Couch agreed to talk, and said that he had had a couple of beers, admitted driving, but denied being in an accident. He gave off a strong odor of alcohol, had bloodshot, watery eyes, was disoriented, had slurred speech, and failed field sobriety tests. He was placed under arrest for driving under the influence and hit...
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Thomas v. State, A13A0308.
...[defendant] come over to answer some questions.” Id. at 663(1)(a), 727 S.E.2d 257. The dissent's citation to Couch v. State, 246 Ga.App. 106, 107(2)(a), 539 S.E.2d 609 (2000), as support for the contention that Sublett's requests were a lawful command is unpersuasive. In Couch, we did not s......
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Lovelace v. State, A03A1228.
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