State v. Brinson

• Decision Date: 27 October 1981
• Docket Number: No. 37619,37619
• Citation: 283 S.E.2d 463,248 Ga. 380
• Parties: The STATE v. BRINSON.
• Court: Georgia Supreme Court

Page 463

283 S.E.2d 463

248 Ga. 380

The STATE v. BRINSON.

No. 37619.

Supreme Court of Georgia.

Oct. 27, 1981.

J. W. Morgan, Dist. Atty., Charles E. Day, Asst. Dist. Atty., Covington, for the State.

Samuel D. Ozburn, Covington, for Kenneth Brinson.

PER CURIAM.

We granted certiorari to review the determination of the Court of Appeals that the instant case must be remanded to the trial court "for entry of a written statement ... showing the evidence relied upon and the reasons for revoking defendant's probation;" Brinson v. State, 158 Ga.App. 189, 279 S.E.2d 488 (1981).

1. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the U.S. Supreme Court set forth the following "minimum requirements of due process" in parole revocation proceedings: "(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 officer 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." (Emphasis supplied.) These requirements were extended to probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The petition for revocation of probation in the case at bar alleges "[t]hat the Defendant has violated the following terms and conditions of probation in the following particulars: Violate no State, local or Federal laws & be of general good behavior. 1. Accused of Theft By Taking against Victor Harris by taking $20 from him. 2. Violated State law by having in his possession & selling to Victor Harris a firearm (.32 caliber Smith & Wesson). 3. Arrested 9-5-80 by Covington P.D. for Burglary, 2 cts. against victims Robert Allen & W. D. Ballard. 4. Burglary 8/28/80 Dr. Sigman's clinic. Maintain steady employment. 1. Failure to maintain steady employment."

The revocation hearing was reported and transcribed, and the transcript is part of the record. At the conclusion of the hearing, the trial court stated: "I'll find that the State has proved each and every allegation. I'll revoke the probationer's sentence and order that he serve the balance in confinement." Thereon, the court entered the following order: "A petition for the revocation of probation of the defendant in the above-styled case having been duly brought before the Court, and notice thereof having been given to the defendant; and a hearing having been held respecting the matters set forth in said petition, it is hereby adjudged, based upon the evidence and testimony presented that the defendant has violated his probation as set forth in the petition."

In our view, the record in this case satisfies the requirements of Morrissey and Gagnon with regard to a "written statement." From the record, both the defendant and the appellate court can ascertain the basis for revocation of the defendant's probation. Given this fact, it was unnecessary for the trial court to commit his findings to a separate piece of paper. We do not construe Morrissey and Gagnon as elevating a superfluous exercise to the level of due process. United States v. Morgan, 595 F.2d 1134, 1138 (9th Cir. 1979).

2. Georgia adheres to the "slight evidence" rule in probation revocation proceedings. See, e. g., Johnson v. State, 142 Ga.App. 124, 235 S.E.2d 550 (1977), aff'd. Id. 240 Ga. 526, 242 S.E.2d 53 (1977). The evidence in this case satisfies the applicable standard. ¹

3. The defendant asserts that the trial court erred in revoking the entire balance of his probation. He labels this action "overzealous" because he "will be adequately punished on the alleged charges themselves if found guilty." No authority has been cited for this position and we have found none. The defendant had been given a twenty year sentence for burglary, with seventeen years to be served on probation. Code Ann. § 27-2713 provides for revocation of probation where the conditions of probation have been violated. By challenging the action of the trial court in this case, the defendant in effect challenges the legality of a twenty year sentence for burglary. This effort must fail. See Brand v. Wofford, 230 Ga. 750, 754, 199 S.E.2d 231 (1973).

4. In his remaining enumeration, the defendant asserts that the judgment of the trial court must be reversed because "there was insufficient evidence introduced of [his] having been placed on probation." The defendant is correct that a copy of his burglary sentence was not introduced into evidence. However, this was not required. The burglary sentence is included in the record. "[A] court may take judicial notice of its own records in the immediate case or proceedings before it. Branch v. Branch, ...