Jordan v. State, No. A06A0644.

• Decision Date: 15 May 2006
• Docket Number: No. A06A0644.
• Citation: 279 Ga. App. 399,635 S.E.2d 163
• Parties: JORDAN v. The STATE.
• Court: Georgia Court of Appeals

279 Ga. App. 399

Page 163

635 S.E.2d 163

JORDAN v. The STATE.

No. A06A0644.

Court of Appeals of Georgia.

May 15, 2006.

William A. Adams, Jr., Thomaston, for appellant.

Scott L. Ballard, District Attorney, Cindy L. Spindler, Assistant District Attorney, for appellee.

JOHNSON, Presiding Judge.

Gregory Jordan was charged with possession of cocaine with intent to distribute. He pled guilty to the reduced charge of possession of cocaine. On May 30, 2003, he was sentenced to serve five years on probation and six months in a detention center, and ordered to perform community service and pay a $1,500 fine and other fees. On June 27, 2005, Jordan's probation officer filed a petition to revoke the probation. The petition alleged that Jordan had violated certain conditions of his probation in that he: (1) was arrested and charged with trafficking in cocaine on or about December 8, 2004; (2) failed to report to the probation officer as directed; and (3) was in arrears in paying the fine and fees.

The trial court held a hearing on the petition on September 7, 2005. The court announced that it found that Jordan violated his probation by failing to report, failing to pay his fines, and being "involved in at least one criminal scheme during that period of time." The court stated that it was revoking the balance of Jordan's probation.

On the written order, the court indicated that Jordan had committed "violations of probation conditions as stated in petition." A handwritten "X" appears on the order in the box beside "Technical violations of probation conditions." A box beside "New felony offense" is also marked with an "X" (though that checkmark appears to be preprinted on the order). The trial court indicated on the order that Jordan would serve "Full Revocation" in an unspecified facility.

Jordan filed an application for discretionary appeal from the order, asserting that the trial court erred by (1) revoking his probation when there was no admissible evidence showing that he violated his probation; and (2) revoking his probation in its entirety when the law allows no more than two years to be revoked. We granted his application.

1. (a) A new felony offense. One of the conditions of Jordan's probation was that he not commit any crimes. The revocation petition alleged that, while on probation, Jordan was arrested and charged with trafficking in cocaine on or about December 8, 2004. It appears from the order that the trial court found that Jordan committed a new felony. We agree with Jordan that the state failed to show by a preponderance of evidence that he committed the trafficking offense alleged in the petition.

A drug task force agent testified that officers purchased $100 worth of crack cocaine from Jordan in June 2004. She testified that the substance was sent to the crime lab and tested positive for cocaine. Jordan objected to the testimony identifying the substance as cocaine, since the agent had no personal knowledge of the makeup of the substance and no one from the crime lab testified.¹ The court sustained the objection. The state also failed to introduce any evidence as to the quantity of the substance. Therefore, the state did not prove by a preponderance of the evidence that Jordan committed the offense of trafficking cocaine.²

(b) Failure to report and pay fine and fees. Jordan contends that the probation officer did not testify to the technical violations from his own knowledge, but merely read the charges set forth in the revocation petition. The transcript shows that when Jordan's probation officer was asked why he petitioned to have Jordan's probation revoked, the probation officer's response was nearly identical to the allegations as set forth in the petition. Specifically, the probation officer testified at the hearing that Jordan

violated condition number one by being arrested and charged with trafficking cocaine on or about December 8, 2004; condition number four, by failing to report to probation office as directed in January, February, March, April, May, June 2005; failing to pay his fees and fees of $774 arrears, with the fine balance — that is incorrect — well, the date of last payment was January 7, 2005, you know; and that payment was made at the Columbus Diversion Center.

Defense counsel objected to the testimony as hearsay, arguing that "he's just reading into the record what's in the petition for establishing the allegations in the petition...."³ The court overruled the objection, stating that the witness was "not doing anything other than reciting what's before the Court." The witness gave no other testimony regarding the reporting and payment allegations.

We agree that the state should have elicited testimony regarding specific facts which would have made it clear that the probation officer was testifying from his own personal knowledge rather than from the petition he prepared and filed. Nonetheless, the witness did testify that he supervised Jordan's probation, which implies that he was testifying from personal knowledge regarding probation reporting and payment matters. The witness essentially stated under oath that Jordan failed to report to the probation office as directed and failed to pay his...