Gonzales v. The State, No. A05A1831.

• Decision Date: 18 October 2005
• Docket Number: No. A05A1831.
• Citation: 622 S.E.2d 401,276 Ga. App. 11
• Parties: GONZALES v. THE STATE.
• Court: Georgia Court of Appeals

276 Ga. App. 11

622 S.E.2d 401

GONZALES v. THE STATE.

No. A05A1831.

Court of Appeals of Georgia.

October 18, 2005.

Charles Price, Smith, Price & Wright, Rome, for Appellant.

Leigh Patterson, District Attorney, Charles Cox, Assistant District Attorney, for Appellee.

ANDREWS, Presiding Judge.

Pursuant to our grant of his application for discretionary appeal, Jose D. Gonzales argues that the State failed to satisfy its evidentiary burden under OCGA § 42-8-34.1(a) and, therefore, the trial court erred in determining that he had violated the terms and conditions of his probation by committing a new felony offense (theft by receiving stolen property). We agree and reverse.

Pursuant to OCGA § 42-8-34.1(b), a court may revoke any part of any probated or suspended sentence if the defendant admits the violation as alleged or if the evidence produced at the revocation hearing establishes the violation by a preponderance of the evidence. "This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court." (Citation and punctuation omitted.) Cheatwood v. State, 248 Ga.App. 617, 621(2), 548 S.E.2d 384 (2001). Accord Dugger v. State, 260 Ga.App. 843, 581 S.E.2d 655 (2003); Edwards v. State, 173 Ga.App. 589, 591(2), 327 S.E.2d 559 (1985).

Gonzales was sentenced on February 7, 2003, to five years, probated, for a violation of the Georgia Controlled Substances Act. General condition one of his probation was to not violate the criminal laws of any governmental unit. In November 2004, Gonzales' probation officer filed his petition to revoke, alleging that, on October 27, 2004, Gonzales had committed theft by receiving stolen property.

OCGA § 16-8-7(a) provides that

[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. "Receiving" means acquiring possession or control or lending on the security of the property.

(Emphasis supplied.)

The evidence produced at the revocation hearing was that, on October 23, 2004, sometime between 1:00 a.m. and 6:00 a.m., a four-wheel all terrain vehicle (ATV) was stolen from its travel trailer parked at the Garden Lakes residence of its owner, Roger Callahan. A report was filed with the police.

On October 27, 2004, Callahan and a friend, Patrick Earwood, were looking around the Garden Lakes neighborhood for the ATV. On a nearby street, Earwood and Callahan saw an ATV parked on a concrete pad behind the carport of the home occupied by Gonzales, his wife, and her two children.¹ Callahan and Earwood recognized the ATV by extra padding added to it as well as the base of a tree stand Callahan had added. The ATV was covered in mud and part of the tree stand was missing. Earwood knocked on the door and spoke with Mrs Gonzales. Neither he nor Callahan saw Gonzales at the house. When asked about the ATV, Mrs. Gonzales told Earwood that it belonged to one of her 19-year-old son's friends. Mrs. Gonzales told Callahan and Earwood to return later to check with her son. Only Mrs. Gonzales and Josh, a friend of her son, were at the house when Callahan and Earwood came by. Gonzales was attempting to get Mrs. Gonzales' car unstuck down the road from the house.

Police were notified of the presence of the ATV and Officer Barnett responded. He spoke with Callahan and Earwood and then went to the Gonzales' residence. Upon arriving, Barnett was met by Gonzales. Barnett explained that there was a report of a stolen ATV on his property and asked Gonzales if he cared if Barnett looked around the backyard. Gonzales gave his permission and he and Barnett walked around the backyard, but did not find an ATV. As they walked back to the front...