Mingo v. State, 59660
| Citation | 155 Ga.App. 284,270 S.E.2d 700 |
| Decision Date | 03 September 1980 |
| Docket Number | No. 59660,59660 |
| Parties | MINGO v. The STATE. |
| Court | Georgia Court of Appeals |
William P. Bartles, Jackson, for appellant.
E. Byron Smith, Dist. Atty., for appellee.
On February 13, 1978, defendant pleaded guilty to charges against him of forgery in the first degree and to theft by taking. He pleaded not guilty to another charge of burglary but after a trial by jury he was convicted as to this charge. The trial court sentenced him to 5 years in the state penal system for the burglary offense. He was to serve 2 years with 3 years probated. As to the offense of forgery in the first degree, he received the same sentence to be served concurrently, and for the misdemeanor offense he received a 12-month probated sentence consecutive to the felony sentences. On August 15, 1978, the State Board of Pardons and Paroles issued him an order of reprieve and an order of conditional commutation conditioned upon compliance with certain regulations set forth on a pledge signed by the defendant and upon failure to abide by said regulations revocation and withdrawal of said reprieve might be ordered. The sentence was to be stayed beginning September 12, 1978. This order stated his maximum sentence would expire December 30, 1978.
On October 10, 1979, the district attorney filed a petition for revocation of probation, alleging therein that the defendant had violated the terms and conditions of probation in that he did commit the offense of criminal damage to property in the second degree on September 6, 1979. In considering a motion to dismiss this petition in that it failed to adequately provide sufficient notice to the defendant of charges upon which the State brought the petition, it was granted by the trial court without prejudice. But the petitioner was granted permission to amend without prejudice or file a new petition alleging more specifically the alleged crime committed. However, at that hearing on November 9, 1979, the trial court denied another motion attacking the rule of law established by our appellate courts allowing the revocation of probationary sentences upon a finding of "slight evidence" as being violative of due process and equal protection of the laws as guaranteed to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Georgia. Defendant prayed that a higher standard of proof be applied so as to afford defendant the protection of his constitutionally guaranteed rights.
The petition for revocation was immediately redrawn to allege with more particularity that the defendant did on September 6, 1979, "intentionally damage the property of ... (the owner of a jewelry store) ... without the owner's consent by breaking out the front glass window of the building occupied by the said ... (owner) ... said damage exceeding $100.00."
Immediately the defendant filed another motion to dismiss alleging that the grand jury, acting upon an indictment for the alleged crime, after hearing evidence, returned a "no bill" in open court on November 5, 1979, and again alleged that to proceed on this petition further would be a denial of defendant's right to due process of the law and equal protection under the laws as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Georgia. After a hearing on November 12, 1979, in which the defendant argued the strong dissenting opinions in certain cases of the appellate courts that when a defendant had been indicted and acquitted on a criminal offense his probation should not be revoked based upon the "slight evidence" rule. This motion was denied, and the defendant also reasserted his motion of November 9, alleging the lack of constitutionality of the "slight evidence" rule with reference to probation revocation proceedings. The trial court then heard evidence from a juvenile arrested in the vicinity along with the defendant, who testified positively that the defendant broke out the front window of the jewelry store with a rock.
The court entered its order of revocation adjudging that the terms of probation had been violated in that the defendant had intentionally damaged the property of the jeweler without the owner's consent by breaking windows (the juvenile admitted they had broken a window earlier in the rear of the jewelry store) and that such action was a violation of the criminal laws of the State of Georgia, "a criminal trespass." The defendant was ordered to serve 2 years in the state penal system, however a further provision was added that "he serve the remainder of his sentence on probation when released from confinement." Defendant appeals. Held :
1. As shown above, the juvenile's testimony that the defendant had broken the front window of the jewelry store by throwing a rock through the window was sufficient to authorize the revocation of probation, but when added to the testimony of the police officer who arrested them when he drove to the vicinity of the jewelry store after an alarm had gone off and that he did not see any other person in the area of the jewelry store except the defendant and the juvenile, under all the circumstances the totality of this testimony authorized the trial court's revocation of the probated sentence. Christy v. State, 134 Ga.App. 504, 506(1, 2), 215 S.E.2d 267; Harper v. State, 146 Ga.App. 337, 246 S.E.2d 391; Wellons v. State, 144 Ga.App. 218, 219 (1), 240 S.E.2d 768.
2. Prior to the hearing the defendant challenged the constitutionality of the "slight evidence" rule, contending that this quantum of evidence authorized by the appellate courts of this state violates the Fifth and Fourteenth Amendments to the United States Constitution as well as denies him due process and equal protection of the laws as guaranteed by the Constitution of the State of Georgia. As stated by the Supreme Court of Georgia in Johnson v. State, 240 Ga. 526, 527, 242 S.E.2d 53, in affirming Johnson v. State, 142 Ga.App. 124, 235 S.E.2d 550, that court adopted the language of the Supreme Court of the United States in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484, which is as follows: "The revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations ... Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions." While the review in Johnson v. State, 240 Ga. 526, 242 S.E.2d 53, supra, was concerned with the principles of collateral estoppel and double jeopardy, we, nevertheless, hold that the benefit and protection afforded under the due process and equal protection clauses of our state and federal constitutions have not in anywise been violated in that the establishment of a defendant's guilt beyond a reasonable doubt "is not necessary to justify the revocation of a sentence of probation." Johnson v. State, 240 Ga. 526, 527-528, 242 S.E.2d 53, supra.
As stated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, supra, at page 480 the loss of liberty involved in a parole revocation is a serious deprivation requiring that a parolee be afforded due process. That case outlined the minimal requirements of the process to be afforded. Nevertheless, it is clear that the defendant here received "written notice of the claimed violation(s) of parole (probation)," the disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses and document evidence, the right to confront and cross examine adverse witnesses, heard by a neutral and detached judicial officer with a written statement by the fact finder as to the evidence relied on and reasons for revoking probation. We hold that application of the "slight evidence" rule does not deny the defendant due process and equal protection. There is no merit in defendant's...
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...have been applied in determining whether [the defendant] violated the terms of his probation." Mingo v. State, 155 Ga.App. 284, 287-288, 270 S.E.2d 700 (1980) (Smith, J., dissenting). This widely accepted standard is succinctly stated in ABA Standards, Probation § 5.4(a) (1970): "The court ......
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Edge v. State
...made a payment." We hold that this is sufficient specificity to satisfy the due process requirement. See generally Mingo v. State, 155 Ga.App. 284, 286-287(2), 270 S.E.2d 700. 2. Defendant's second contention is that the trial court erred in considering evidence of crimes of which he was no......
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Abney v. State, 67030
...527, 242 S.E.2d 53 (1978), quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972). Accord, Mingo v. State, 155 Ga.App. 284(1, 2), 270 S.E.2d 700 (1980). The trial court erred in ordering appellant to pay restitution based upon the charge used to support t......