Reece v. Pettijohn
| Decision Date | 10 October 1972 |
| Docket Number | No. 27448,27448 |
| Citation | 229 Ga. 619,193 S.E.2d 841 |
| Parties | Windelyn Farish REECE v. Jerry William PETTIJOHN. |
| Court | Georgia Supreme Court |
Patton & Flinn, C. Ronald Patton, Rome, for appellant.
Earl B. Self, Dist. Atty., Robert Edward Surles, Ralph Hill, Summerville, for appellee.
Syllabus Opinion by the Court
This appeal is from the grant of the appellee's motion to dismiss the appellant's petition for habeas corpus on the ground that it failed to state a claim upon which relief could be granted. The appellant contends that the habeas corpus court erred in ruling that he was not entitled to the assistance of counsel at his probation revocation hearing.
In our view the habeas corpus court was correct in this ruling. This court in Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221, a full bench decision, held that 'The failure to furnish counsel to one convicted of a criminal offense at the hearing to revoke his probation does not violate his right to counsel under the federal or the state Constitution.'
The decision of the Supreme Court of the United States in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, does not require a different result. There the court was dealing with the right to counsel in a situation where the state law provides for sentencing at the hearing on revocation of probation. Here the appellant was sentenced prior to being placed on probation, at which time he was represented by counsel.
See also in this connection, Shaw v. Henderson, 430 F.2d 1116 (5 CCA), which treats this subject fully and reaches the same conclusion that we do.
We find no error in the ruling made here.
Judgment affirmed.
All the Justices concur, except HAWES and GUNTER, JJ., who dissent.
The majority opinion holds that the appellant was not entitled to the assistance of counsel at his probation revocation hearing. In so holding the majority relies solely on Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221 (1967), a full-bench decision. 1
I have read many full-bench decisions during the past thirty years that I considered erroneous, but I have never read one during all of that time that I considered more patently erroneous than Dutton v. Willis.
That decision quotes the Georgia statute (Ga.L.1966, p. 440) to the effect that upon a probationer being brought before the court charged with having violated his probation, the court may dismiss the charge or it may order a hearing. The statute quoted in the opinion then says: 'If such charge is not dismissed at this time, the court shall give the probationer an opportunity to be fully heard at the earliest possible date on his own behalf, in person or by counsel.'
The decision then goes on to quote the general and accepted rule in the state and federal courts to the effect that the failure of the court to supply him (probationer) with counsel is not a denial of the right to counsel unless a statute provides for the benefit of counsel at such a hearing.
If this Georgia statute, quoted in that decision, does not provide for benefit of counsel at a probation revocation hearing in this state, then I do not know what a statute would have to say in order to provide for 'benefit of counsel' at such a hearing.
The decision of the Supreme Court of the United States in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, has established that such a revocation hearing must be held, it must be conducted within a reasonable time after the probationer has been taken into custody, and minimum due process requirements at such a revocation hearing are: '(a) Written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officers specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and, (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.' (Quoted from Syllabus).
The Court of Appeals of New York has decided that a parolee has a constitutional right to assistance of counsel at a parole revocation hearing. See Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238 (1971).
The United States Court of Appeals for the Second Circuit has held that a parolee was constitutionally entitled to assistance of counsel in a revocation proceeding. See Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (1971).
The majority opinion in this...
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Parks v. McClung
...(defendant's probation cannot be revoked if he was denied right to counsel when he received probated sentence); cf. Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841 (1972) (defendant not entitled to counsel at revocation hearing where he was represented by counsel at time of sentencing). Ina......
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Hunter v. State
...revocation hearing in Georgia.' This was a per curiam opinion in which the court stated is ruling was controlled by Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841. In both Reece and Mercer there were strong dissents which relied upon the U.S. Supreme Court ruling in Mempa v. Rhay, 389 U.S.......
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Christy v. State
...a condition of his probation in order to revoke it.' Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37. Nothing in Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841; Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221; Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Br......
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...of counsel at a revocation hearing, set forth in such cases as Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975); Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841 (1972); Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221 (1967), appears to have been modified by the United States Supreme Court......