Ware v. State, 51513
| Decision Date | 17 February 1976 |
| Docket Number | No. 51513,No. 1,51513,1 |
| Parties | B. L. WARE v. The STATE |
| Court | Georgia Court of Appeals |
M. Francis Stubbs, Reidsville, for appellant.
B. Daniel Dubberly, Sol., Glennville, for appellee.
This is an appeal from a revocation of probation. On December 9, 1974, defendant was placed on twelve months probation upon his entry of a plea of nolo contendere to a charge of driving under the influence of intoxicants. Thereafter, on June 24, 1975, defendant was again arrested upon a DUI charge. A petition for revocation of probation was served and a hearing was conducted on the matter. The court ruled defendant had violated the terms of his probation and entered judgment revoking said probation. This appeal followed. Held:
1. Defendant seeks a new trial on the ground that he was not afforded a preliminary hearing in conformance with Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 665. The former case ruled that parolees are entitled as of right to due process before revocation. Gagnon v. Scarpelli, supra, applied that requirement to probationers. 1 In these cases the United States Supreme Court held application of due process to parolees and probationers warranted both a preliminary and a final revocation hearing.
In Georgia we have provided for a preliminary hearing for parolees under the 1975 Ga.L. 786, 787, contained in the Annotated Code Supplement of § 77-518.1.
Contrary to the views 2 expressed in 1854 by Justice Benning in Padelford v. Mayor &c. of Savannah, 14 Ga. 438, we recognize our obligation to comply with the mandates of our nation's supreme mjudicial tribunal. Such compliance, however, does not necessarily require uniform procedures throughout all fifty states. This fact is recognized by the Supreme Court in Morrissey v. Brewer, supra, where the court stated 408 U.S. at page 488, 92 S.Ct. at page 2604 that The opinion of the court then spelled out those elements that must be provided to satisfy constitutional due process for revocation hearings. The court divided these details into two phases, a preliminary hearing and a final trial.
Since all of these due process requirements can be satisfied in a single court trial as was done in the instant case, we see no reason for duplication in the form of a preliminary hearing. The Supreme Court's directives are met and a probationer's constitutional rights are fully protected through a single dispositional hearing where, as here, the procedure included these successive steps: (1) a petition filed by the probation supervisor in the court where the original probation sentence has been entered; (2) such petition reciting (a) details of the original trial including nature of the offense, defendant's plea, the court's sentence and date thereof with a copy of the terms and conditions of the probations entence; (b) specificity as to alleged violations of the probation conditions; (c) prayer for citation, petition for revocation and for a rule to show cause; (3) consideration of the petition by trial judge and his entry of an order requiring service of a copy of the petition and a show cause ruling for a specified date, time and place in open court; (4) service of the petition and court order; (5) a full fledged hearing in accordance with Code Ann. § 27-2713; and (6) a judicial determination in writing by the court stating the particulars in which the terms of the probation had been violated and a recital as to the specific term that remains to be served.
Accordingly, we hold that there was no error in denying probationer a preliminary hearing prior to a final disposition trial as all due process requirements were here satisfied.
2. The trial court correctly overruled defendant's motion to suppress the testimony by the officers which motion was based on an allegedly unlawful arrest. Whether the detention was lawful or unlawful, the testimony was derived solely from events which preceded the arrest and can not therefore be construed as a fruit of the alleged illegality. See generally Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This enumeration is therefore without merit.
3. Another enumeration avers as error the refusal of the trial judge to grant appellant's counsel a continuance for one day to allow time to prepare the appellant's defenses. At the call of the case appellant's attorney announced that he had just been retained and needed time for investigation and preparation. The court observed that the probationer had known of the trial assignment for six days and therefore declined to grant the request although he recessed the hearing for one hour.
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