Dickerson v. State, No. 51079

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBELL; WEBB; EVANS
Citation136 Ga.App. 885,222 S.E.2d 649
Decision Date21 November 1975
Docket NumberNos. 1,2,No. 51079,3
PartiesH. L. DICKERSON v. The STATE

Page 649

222 S.E.2d 649
136 Ga.App. 885
H. L. DICKERSON
v.
The STATE.
No. 51079.
Court of Appeals of Georgia, Division Nos. 1, 2, 3.
Nov. 21, 1975.
Rehearing Denied Dec. 4, 1975.

[136 Ga.App. 887] Ballard, Thigpen & Griffith, George W. Griffith, Covington, for appellant.

John T. Strauss, Dist. Atty., Covington, for appellee.

[136 Ga.App. 885] BELL, Chief Judge.

This appeal from a revocation of probation is controlled adversely to the appellant by Johnson v. State, [136 Ga.App. 886] 214 Ga. 818, 108 S.E.2d 313 and by many cases which have applied 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 is a felony, that it is erroneous for the hearing judge to have based the revocation on that accusation unless the accused shall have first been tried and found guilty of the criminal charge. To hold that would be to elevate a felony to a legal status more respectable than an ordinary and reasonable condition expressed in a probationary sentence, the violation of which would not constitute even a misdemeanor.

Johnson held: That a probationer is not entitled to a trial by jury for determining whether the conditions of a probation order have been breached; a revocation hearing is not a 'trial' to determine the guilt of a probationer for the commission of a misdemeanor or a felony; a hearing of this nature is not a trial on a criminal charge but is one to determine judicially whether the conduct of the probationer has conformed to the course outlined in the order of probation; and whether those conditions have been breached is to be determined by the court. To Johnson's holdings the Court of Appeals has added other criteria such as that slight evidence is both essential and enough to authorize revocation, Sellers, supra; that it is not required that the court in

Page 650

order to revoke be convinced beyond a reasonable doubt that defendant has violated a condition of his probation. Adkins v. State, 134 Ga.App. 507, 215 S.E.2d 270.

In this case the evidence authorized the revocation. The evidence is far more than 'slight', that the probationer committed the felony of rape.

The judgment of the trial court revoking the probationary sentence of the appellant is affirmed.

Judgment affirmed.

DEEN, P.J., and QUILLIAN, STOLZ and MARSHALL, JJ., concur.

PANNELL, P.J., and EVANS, CLARK and WEBB, JJ., dissent.

[136 Ga.App. 887] WEBB, Judge (dissenting).

On December 4, 1974, Clara Belle Benton swore out a warrant alleging that she had been raped and robbed by the defendant Dickerson. Three days later Dickerson turned himself in and was incarcerated. He was subsequently indicted for rape by the grand jury in the January Term, 1975, of the Newton Superior Court, and on January 17, seeking to exercise his Sixth Amendment rights, Dickerson filed a demand for a speedy trial. This demand, however, was not to be realized. On that same day, Dickerson, who was under a ten-year probationary sentence on a guilty plea to burglary, was served with a petition for the revocation of his probation. The petition alleged that he had violated the terms and conditions of his probation by committing the crimes of rape and robbery.

On January 20, a probation revocation hearing was conducted. Clara Belle Benton testified that defendant forcibly robbed her and raped her. This testimony, however, was contrary to previous statements she had made, self-contradictory in several material aspects and vague in response to cross examination. Witnesses for the defense stated facts directly contradicting the testimony of the prosecutrix and supporting Dickerson's testimony which denied any participation in the matter. Additionally, there was testimony that the physical condition of Mrs. Benton and her clothing following the alleged incident was inconsistent with with assertion of a forcible rape haing occurred in an area filled with broken glass and debris.

At the close of the evidence, the trial judge deferred judgment, stating that he wanted to think about the case 'overnight,' and remanded Dickerson to jail until he made a decision. Some two and a half months later, on April 3, judgment was entered revoking five years of Dickerson's probation on the ground that he had violated [136 Ga.App. 888] its terms in committing the offenses of rape and robbery by force.

Dickerson contends that the proceedings resulting in his imprisonment deprived him of due process of law, and that because Georgia law requires only 'slight evidence' of a violation of probationary conditions, he has been confined to prison since January and has lost his liberty for five years on charges which are unsupported by sustantial evidence. Thus, it is urged, Georgia's legal standard of evidence in probation revocation hearings can lead to arbitrary and unreasonable decisions effectively denying due process rights. Dickerson further argues that where revocation of probation is based solely upon new criminal charges, due process requires a criminal conviction or guilty plea as a condition pecedent to revocation.

1. Under our statutes, the trial court is empowered to determine whether a violation of the terms of probation has been committed. Code Ann. §§ 27-2502, 27-2713. Although the probation revocation hearing is brought under provisions of the Criminal Code, our courts have declared this action to be 'of a civil nature.' See Wilburn v. State, 140 Ga. 138, 140, 78 S.E. 819. In determining whether a violation has in fact occurred, however, the trial judge is not bound by the strict rules of evidence otherwise applicable to both civil and criminal

Page 651

proceedings. See Sellers v. State, 107 Ga.App. 516, 130 S.E.2d 790; Scott v. State, 131 Ga.App. 504, 206 S.E.2d 137. 'It is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence.' Allen v. State, 78 Ga.App. 526, 528, 51 S.E.2d 571, 574; Price v. State, 91 Ga.App. 381(2), 85 S.E.2d 627. Only 'slight evidence' has been required to show that the defendant violated the conditions of his probation. Faulkner v. State, 101 Ga.App. 889, 115 S.E.2d 393; Hinton v. State, 127 Ga.App. 853, 195 S.E.2d 472.

This minimal evidentary standard was largely the result of the view that probation is granted as a matter of privilege, not as a matter of right. Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313; Cross v. Huff, 208 Ga. 392, 396, 67 S.E.2d 124. However, 'the concept that [136 Ga.App. 889] constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege" has now been specifically rejected by the United States Supreme Court in Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534. Moreover, the principle enunciated in cases such as Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 and Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582, that since parole or probation is only a privilege it may be summarily revoked, has now been discarded. Graham v. Richardson, supra; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811. See generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). In my view, it necessarily follows, therefore, that decisions of this court exemplified by Sellers v. State, 107 Ga.App. 516, 130 S.E.2d 790, supra, and Scott v. State, 131 Ga.App. 504, 206 S.E.2d 137, supra, which rely on the earlier U.S. Supreme Court decisions, must be disapproved and overruled.

The view now taken by the Supreme Court is that 'Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817. . . . The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment . . . Once it is determined that due process applies, the question remains what process is due. It has been said so often by this court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. 'Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).' Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484.

[136 Ga.App. 890] In Morrissey the court determined that parole revocation is not a part of the criminal process and therefore not subject to 'the full panoply of rights due a defendant.' But it concluded that 'the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty,' and sicne parole revocation inflicts a 'grievous loss' on the parolee as well as on others, '(i)ts termination calls for some orderly process, however informal.' 408, U.S. at 480, 482, 92 S.Ct. at 2601. The Court subsequently determined that despite 'undoubted minor differences' between parole and probation, the revocation of either is 'constitutionally indistinguishable;' thus, probationers and parolees are entitled to the same due process...

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25 practice notes
  • People v. Baines, Docket No. 77-1058
    • United States
    • Court of Appeal of Michigan (US)
    • May 23, 1978
    ...and Texas a defendant has no right to delay a revocation hearing until the trial is held on the substantive offense. Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649 (1975), Jackson v. State, 140 Ga.App. 659, 231 S.E.2d 554 (1976), People v. Huff, 44 Ill.App.3d 273, 357 N.E.2d 1380 (1976......
  • Hunter v. State, No. 52691
    • United States
    • United States Court of Appeals (Georgia)
    • September 28, 1976
    ...In a revocation of probation proceeding only 'slight' evidence is necessary to authorize a finding of violation. Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649; Amiss v. State, 135 Ga.App. 784, 219 S.E.2d 28, supra; Manley v. State, 133 Ga.App. 436, 211 S.E.2d 391; Sellers v. State, 10......
  • Sigman v. Whyte, No. 14856
    • United States
    • Supreme Court of West Virginia
    • July 15, 1980
    ...747, 153 S.E.2d 467 (1967). Some courts require only "slight evidence" to show that probationer violated probation, Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649 (1975), while at least one may require proof beyond a reasonable doubt. State v. Guffey, 253 N.C. 43, 116 S.E.2d 148 (1960)......
  • Johnson v. State, No. 53146
    • United States
    • United States Court of Appeals (Georgia)
    • April 5, 1977
    ...of Texas, 497 F.2d 981, 982 (5th Cir., 1974). In Georgia, Chief Judge Bell, speaking for this court in the case of Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649, stated: Page 552 "It would indeed be ridiculous to hold (as appellant would have us do) that where an act on which the revo......
  • Request a trial to view additional results
25 cases
  • People v. Baines, Docket No. 77-1058
    • United States
    • Court of Appeal of Michigan (US)
    • May 23, 1978
    ...and Texas a defendant has no right to delay a revocation hearing until the trial is held on the substantive offense. Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649 (1975), Jackson v. State, 140 Ga.App. 659, 231 S.E.2d 554 (1976), People v. Huff, 44 Ill.App.3d 273, 357 N.E.2d 1380 (1976......
  • Hunter v. State, No. 52691
    • United States
    • United States Court of Appeals (Georgia)
    • September 28, 1976
    ...In a revocation of probation proceeding only 'slight' evidence is necessary to authorize a finding of violation. Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649; Amiss v. State, 135 Ga.App. 784, 219 S.E.2d 28, supra; Manley v. State, 133 Ga.App. 436, 211 S.E.2d 391; Sellers v. State, 10......
  • Sigman v. Whyte, No. 14856
    • United States
    • Supreme Court of West Virginia
    • July 15, 1980
    ...747, 153 S.E.2d 467 (1967). Some courts require only "slight evidence" to show that probationer violated probation, Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649 (1975), while at least one may require proof beyond a reasonable doubt. State v. Guffey, 253 N.C. 43, 116 S.E.2d 148 (1960)......
  • Johnson v. State, No. 53146
    • United States
    • United States Court of Appeals (Georgia)
    • April 5, 1977
    ...of Texas, 497 F.2d 981, 982 (5th Cir., 1974). In Georgia, Chief Judge Bell, speaking for this court in the case of Dickerson v. State, 136 Ga.App. 885, 222 S.E.2d 649, stated: Page 552 "It would indeed be ridiculous to hold (as appellant would have us do) that where an act on which the revo......
  • Request a trial to view additional results

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