Scott v. State

• Decision Date: 15 March 1974
• Docket Number: No. 49043,No. 2,49043,2
• Citation: 206 S.E.2d 137,131 Ga.App. 504
• Parties: Jerry SCOTT v. The STATE
• Court: Georgia Court of Appeals

Page 137

206 S.E.2d 137

131 Ga.App. 504

Jerry SCOTT v. The STATE.

No. 49043.

Court of Appeals of Georgia, Division No. 2.

March 15, 1974.

Rehearing Denied March 29, 1974.

Ben Lancaster, Cartersville, for appellant.

David N. Vaughan, Jr., Dist. Atty., Cartersville, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The probationer appeals from the revocation of his probation. The enumeration of error is on the general grounds.

' The only question before us is whether the evidence in this case is sufficient to authorize the revocation of a probationary sentence under Code Ann. § 27-2713.

" Probation is granted as a privilege, and not as a matter of right; and the revocation of the probation is punishment for the crime for which the defendant was convicted in the first instance.' Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313; Cross v. Huff, 208 Ga. 392, 396, 67 S.E.2d 124. Probation of sentence '. . . comes as an act of grace to one convicted of a crime. . . .' Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566. 'The defendant stands convicted; he faces punishment and cannot insist on terms or strike a bargain.' Burns v. United States,287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266.

' This does not mean that the probationer can be made the victim of whim or caprice. Williams v. State, 162 Ga. 327, 328, 133 S.E. 843; Sparks v. State, 77 Ga.App. 22, 24, 47 S.E.2d 678; Burns v. United States, 287 U.S. 216, 223, 53 S.Ct. 154, 77 L.Ed. 266, supra. Our statutes (Code Ann. § 27-2713 and former Code § 27-2705) expressly give him the right to notice and a hearing on the question of revoking probation. Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313, supra; Balkcom v. Gunn, 206 Ga. 167, 56 S.E.2d 482. The failure to afford the probationer such notice and a hearing would render a revocation order void for lack of due process of law. Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402. However, a hearing on a revocation '. . . is not a trial on a criminal charge. . . .' and the probationer has no right to a trial by jury. Johnson v. State, 214 Ga. 818, 819, 108 S.E.2d 313, 314, supra. It is somewhat like an application for a change of venue, which is 'of a civil nature.' See Wilburn v. State, 140 Ga. 138, 140, 78 S.E. 819.

' As to the sufficiency of the evidence to authorize revocation, '. . . the trial judge is not bound by the same rules of evidence as a jury in passing upon the guilt or innocence of the accused in the first instance. It is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence. The judge is the trior of the facts. He has a very wide discretion.' (Emphasis supplied.) Allen v. State, 78 Ga.App. 526, 528-529, 51 S.E.2d 571, 574; Price v. State, 91 Ga.App. 381(2), 85 S.E.2d 627. . . . This discretion '. . . takes into account the law and the particular circumstances of the case and is directed by the reason and conscience of the judge to a just result.' Sparks v. State, 77 Ga.App. 22, 24, 47 S.E.2d 678, 680, supra. Only 'slight evidence' is required. Faulkner v. State, 101 Ga.App. 889, 115 S.E.2d 393. This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. Waters v. State, 80 Ga.App. 104, 108, 55 S.E.2d 677; Atkinson v. State, 82 Ga.App. 414, 416, 61 S.E.2d 212; Harrington v. State, 97 Ga.App. 315, 320, 103 S.E.2d 126. The reason for flexibility is obvious. The probationer '. . . is still a person...