Smith v. State

• Decision Date: 21 June 1984
• Docket Number: No. 68114,68114
• Citation: 171 Ga.App. 279,319 S.E.2d 113
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 113

319 S.E.2d 113

171 Ga.App. 279

SMITH v. The STATE.

No. 68114.

Court of Appeals of Georgia.

June 21, 1984.

Roman A. DeVille, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Carole E. Wall, Asst. Dist. Attys., for appellee.

QUILLIAN, Presiding Judge.

The defendant, Grady Smith, appeals from the revocation of his probated sentence to confinement. On March 10, 1982, in Fulton Superior Court, Smith pled guilty to a violation of the Georgia Controlled Substances Act and was sentenced to three years confinement and a fine of $600. The confinement was probated upon payment of the fine. On August 23, 1983, defendant entered a plea of nolo contendere to a violation of the Georgia Controlled Substances Act and received a sentence of 12 months, probated, and a fine of $250. Thereafter, on August 31, 1983, the court convened a probation revocation hearing on the 1982 conviction. The State called and swore its first witness, Smith's probation officer. The Assistant District Attorney apparently attempted to introduce evidence that Smith had entered a plea of nolo contendere in the second trial. The court refused to accept it (see OCGA § 17-7-95(c)) and asked the Assistant District Attorney about "getting the necessary witnesses subpoenaed to appear in court ..." A date was agreed upon and defendant was notified to "reappear September 16, 1983, at 9:00 o'clock a.m., and the hearing was recessed." No objection was voiced by defendant's counsel. Fifteen days later, the court announced: "I call for hearing the continuation of the hearing of the petition for revocation in the matter of the State versus Grady Lamar Smith." The defendant had filed a "Plea in Bar ... Because of Attachment of Double Jeopardy." Counsel argued that defendant had been before the court on August 31st for a determination of whether his probation should be revoked, and after both sides had announced ready, the State swore a witness and introduced testimony. He contended jeopardy attached at the first hearing and "some two weeks later, a case that was heard and was announced ready to [sic] two weeks ago is being sought to be presented against him again. And he shall again run a gambit [sic] of being in danger of losing his liberty." The court denied the plea in bar, and after hearing the State's witnesses, revoked Smith's probation. Smith brings this appeal. Held:

Defendant has filed five enumerations of error, but on appeal argues only that "[t]he sole issue to be decided in this case is whether the double jeopardy clause of the Georgia Constitution and the Constitution of the United States is applicable to multiple probation revocation proceedings." We shall answer only the present issue which is argued in the brief.

The Fifth Amendment to the U.S. Constitution provides, inter alia: "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ..." Our Georgia Constitution states: "No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial." Art. I, Sec. I, Par. XVIII. The Fifth Amendment of the U.S. Constitution is made applicable to the States through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. "[T]he Double Jeopardy Clause provides three related protections: 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' " United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232.

Here the prosecutor instituted a probation revocation proceeding and had insufficient evidence to prove his allegation. The court recessed the proceedings for two weeks and when they reconvened the State presented its witnesses and secured a revocation of defendant's probation. As a general rule, under double jeopardy principles, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717. And, when a prosecutor begins a case without sufficient evidence to convict, and the court grants mistrial over the defendant's objection, a defendant's plea of former jeopardy should be sustained. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1. However, this brings us to the basic issue. Is a probation revocation proceeding a criminal trial? "The threshold question to be addressed in any case involving double jeopardy is whether jeopardy has attached to defendant during the proceedings which he contends preclude further prosecution." Haynes v. State, 245 Ga. 817, 818, 268 S.E.2d 325.

The U.S. Supreme Court, in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, held that "... 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." (Emphasis supplied.) 408 U.S. at 480, 92 S.Ct. at 2600. Hence, the Court stressed that a probation revocation proceeding is not part of a criminal trial, and since the accused had already had his trial and received his sentence to confinement, he is at liberty only upon observance of the conditions of his parole and a parole revocation hearing was for determination only of the issue of whether he had breached those conditions which permitted him to be at liberty. Accordingly, since this was not a trial, but only makes a determination of whether an agreement was breached, the Supreme Court has held a parolee is not entitled to the "full panoply of rights due a defendant." In determining whether the requirements of "due process" of the Fourteenth Amendment applied to parole revocations, the court found that "the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole." 408 U.S. at 483, 92 S.Ct. at 2601. Thus, the Supreme Court found there was no necessity of a new criminal trial. They also found that the procedural process due a parolee was a "preliminary hearing" before an impartial individual, who need not be a judicial officer, for a determination of whether there was probable cause to believe the parolee had violated any condition of his parole. 408 U.S. at 485, 92 S.Ct. at 2602. Thereafter, a "revocation hearing" could be held before "a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers ..." 408 U.S. at 489, 92 S.Ct. at 2604. The Court stated: "We emphasize there is no thought...