2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-34.1. Revocation of Probated or Suspended Sentence; Alternative Sentencing; Burden of Proof; Length of Probation Supervision

1. For the purposes of this Code section, the term "special condition of probation or suspension of the sentence" means a condition of a probated or suspended sentence which:
   1. Is expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and
   2. Is identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and require the defendant to serve up to the balance of the sentence in confinement.
2. A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.
3. At any revocation hearing, upon proof that the defendant has violated any general provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for such alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.
4. If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant's admission is the commission of a felony offense, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense constituting the violation of the probation. For purposes of this Code section, the term "felony offense" means:
   1. A felony offense;
   2. A misdemeanor offense committed in another state on or after July 1, 2010, the elements of which are proven by a preponderance of evidence showing that such offense would constitute a felony if the act had been committed in this state; or
   3. A misdemeanor offense committed in another state on or after July 1, 2010, that is admitted to by the defendant who also admits that such offense would be a felony if the act had been committed in this state.
5. If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant's admission is the violation of a special condition of probation or suspension of the sentence, the court may revoke the probation or suspension of the sentence and require the defendant to serve the balance or portion of the balance of the original sentence in confinement.
6. The payment of restitution or reparation, costs, or fines ordered by the court may be payable in one lump sum or in periodic payments, as determined by the court after consideration of all the facts and circumstances of the case and of the defendant's ability to pay. Such payments shall, in the discretion of the sentencing judge, be made either to the clerk of the sentencing court or, if the sentencing court is a probate court, state court, or superior court, to the DCS office serving such court.
7. In no event shall an offender be supervised on probation for more than a total of two years for any one offense or series of offenses arising out of the same transaction, whether before or after confinement, except as provided by paragraph (2) of subsection (a) of Code Section 17-10-1 and subsection (g) of Code Section 42-8-34.

(Code 1981, §42-8-34.1, enacted by Ga. L. 1988, p. 1911, § 1; Ga. L. 1989, p. 855, § 1; Ga. L. 1992, p. 3221, § 6; Ga. L. 2001, p. 94, § 7; Ga. L. 2010, p. 318, § 1/HB 329; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2016, p. 443, § 8-5/SB 367.)

The 2015 amendment, effective July 1, 2015, in subsection (c), deleted "intensive probation," following "community service," in the first sentence, and substituted "such alternatives" for "said alternatives" in the second sentence; substituted "the DCS office serving such" for "the probation office serving said" near the end of the last sentence in subsection (f); and added "and subsection (g) of Code Section 42-8-34" at the end of subsection (g). See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, deleted "diversion centers," following "community service," in the middle of the first sentence of subsection (c).

- Ga. L. 2001, p. 94, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the '2001 Crime Prevention Act.'"

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

- For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For note on 1989 amendment of this Code section, see 6 Ga. St. U.L. Rev. 287 (1989). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 47 (2001).

ANALYSIS

• General Considerations
• Evidence Sufficient for Revocation
• Evidence Insufficient for Revocation

General Considerations

Fourth Amendment not violated.

- Police were not acting in bad faith or in an arbitrary and capricious manner when the police searched the defendant's home since the defendant waived Fourth Amendment rights for probation and the police had a reasonable suspicion that there were drugs present. Reece v. State, 257 Ga. App. 137, 570 S.E.2d 424 (2002).

- Although a condition of probation that the defendant not cohabit with a person of the opposite sex was not in writing and may not have even applied, O.C.G.A. § 42-8-34.1(a)(2), defendant's challenge to the condition after probation had already been served was moot. Jayko v. State, 335 Ga. App. 684, 782 S.E.2d 788 (2016).

- Sentencing court's failure to warn a defendant, in writing, as to the consequences of violating the terms of probation was not substantial compliance with O.C.G.A. § 42-8-34.1(a)(2). Harvey v. Meadows, 280 Ga. 166, 626 S.E.2d 92 (2006).

Because the relevant sentencing documents failed to state that a probationer's failure to complete a diversion center program would result in the court revoking probation and requiring the probationer to serve the balance of the original sentence in prison, and the original sentencing form did not comply with O.C.G.A. § 42-8-34.1, the trial court erred in revoking the remainder of the probationer's probation term; moreover, despite the state's contention that the probationer waived any issue regarding the wording of the sentence by consenting to the consent order, there was no basis found in the record for the appeals court to find such. Gamble v. State, 290 Ga. App. 37, 658 S.E.2d 785 (2008).

Trial court erred in revoking the defendant's probation under O.C.G.A. § 42-8-34.1 because the original sentencing form did not adequately warn the defendant in writing of the consequences of violating a special condition; thus, the defendant was entitled to resentencing. Sheppard v. State, 319 Ga. App. 813, 738 S.E.2d 662 (2013).

- O.C.G.A. § 42-8-34.1 governs the requirements for revocation of a probated sentence, and specifically repealed, without a savings clause, the prior statutory provision and all conflicting laws; the amended provision precluded the trial court from considering the prior, unamended statute during a revocation hearing as the court was bound by the revocation requirements in effect at the time defendant's probation was revoked, not at the time the defendant was sentenced to probation. Gardner v. State, 259 Ga. App. 375, 577 S.E.2d 69 (2003).

Trial court properly revoked a probationer's term of probation, pursuant to O.C.G.A. § 42-8-34.1 as amended, requiring the probationer to serve the full balance of the remaining sentence as the probationer failed to report to a probation supervisor as directed in the probation order and any violation of the special conditions could result in the revocation of the entire balance of probation and require the probationer to serve up to the balance of the sentence in confinement. Hill v. State, 270 Ga. App. 114, 605 S.E.2d 831 (2004).

- Revocation of probation based on a child molestation charge was error because competent evidence showed that the defendant's brother saw the defendant, fully clothed, asleep on the sofa with a fully clothed child in the defendant's lap, and did not see them doing anything wrong. Hunt v. State, 327 Ga. App. 692, 761 S.E.2d 99 (2014).

- Habeas court utilized the incorrect standard as a conviction was not necessary for a revocation of more than two years of probation; all that was required by former O.C.G.A. § 42-8-34.1(d) was that the felony upon which the revocation of probation was based be proved by a preponderance of the evidence, or by the defendant's admission of the felony's commission. Lewis v. Sims, 277 Ga. 240, 587 S.E.2d 646 (2003).

- Trial court abused its discretion in revoking the defendant's probation based upon incompetent and insufficient evidence; the only evidence that a crime was committed was an officer's hearsay testimony that the officer was told that an air compressor was stolen and that testimony was offered only to show the officer's reasons for conducting an investigation. Smith v. State, 283 Ga. App. 317, 641 S.E.2d 296 (2007).

- Because the revocation petition did not specify which Code section the defendant was alleged to have violated for the drug-related objects offense and instead simply accused the defendant of possessing certain specified drug-related objects, the only violation alleged and proven fell under O.C.G.A. § 16-13-32.2, a misdemeanor; therefore, the trial court was not authorized to revoke more than two years of the defendant's outstanding probation. Henley v. State, 317 Ga. App. 776, 732 S.E.2d 836 (2012).

Resentencing on revocation of probation was necessary as the trial court could not revoke more than two years of probation based on the remaining technical violations for failure to pay court-ordered monies. Hunt v. State, 327 Ga. App. 692, 761 S.E.2d 99 (2014).

- When, after the defendant's probation revocation hearing, the trial court ordered the defendant to serve six months in jail for each of the seven probation violations found to total three and one-half years, that order violated the plain words of subsection (b) of O.C.G.A. § 42-8-34.1, limiting confinement for probation revocation to no more than two years. Cockrell v. Brown, 263 Ga. 345, 433 S.E.2d 585 (1993).

Revocation of the balance of four and one-half years of the defendant's probation based on the commission of two new violent misdemeanors was error because, when the sole basis for revoking probation is the commission of a new misdemeanor, whether violent or not, the cap is two years. Lawrence v. State, 228 Ga. App. 745, 492 S.E.2d 727 (1997).

O.C.G.A. § 42-8-34.1(c) placed a two-year limitation on the period of confinement which may be ordered when probation was revoked because of a violation of a general provision of probation; a trial court's revocation order, which could possibly have been construed as ordering more than two years in confinement, was improper. Jordan v. State, 279 Ga. App. 399, 635 S.E.2d 163 (2006).

Probation conditions violated by a defendant were not special conditions under O.C.G.A. § 42-8-34.1 because the conditions were not imposed in addition to general conditions and court-ordered fines and fees; thus, the trial court was not authorized to revoke the balance of the defendant's probation and to require the defendant to serve more than two years in confinement. Chester v. State, 287 Ga. App. 70, 651 S.E.2d 360 (2007).

When nothing in the record showed that the trial court considered alternatives to confinement, the court erred in ordering a defendant who had violated probation to serve more than two years in confinement. Chester v. State, 287 Ga. App. 70, 651 S.E.2d 360 (2007).

- Trial court did not err in revoking defendant's probation and requiring defendant to serve five years in a probation detention center as the use of the probation detention center was an appropriate alternative; pursuant to O.C.G.A. § 42-8-34.1(c), the two-year maximum for confinement in jail did not apply. Syms v. State, 257 Ga. App. 521, 571 S.E.2d 514 (2002).

Trial court erred in ordering a probationer to serve three years because the sentence was a term of confinement greater than that specified in O.C.G.A. § 42-8-34.1(c). Klicka v. State, 315 Ga. App. 635, 727 S.E.2d 248 (2012).

- Under O.C.G.A. § 42-8-34.1(d) and (e), violation of a special condition of probation can result in revocation of more than two years of probation; violation of a general condition of probation authorizes the revocation of no more than two years of probation. Gardner v. State, 259 Ga. App. 375, 577 S.E.2d 69 (2003).

Resentencing was necessary because the trial court was authorized to revoke no more of the defendant's probation than the maximum time authorized for the defendant's violation of the North Carolina statute the defendant violated. Beavers v. State, 346 Ga. App. 373, 816 S.E.2d 384 (2018).

Under O.C.G.A. § 42-8-34.1(d), a trial court was authorized to revoke no more than the lesser of the balance of probation or the maximum time of sentence authorized for the crime constituting a violation of the defendant's probation; since the maximum sentence for the crime constituting a violation of the defendant's probation, felony obstruction, was five years, the trial court erred in revoking over eight years of probation. Gibson v. State, 279 Ga. App. 838, 632 S.E.2d 740 (2006).

Trial court properly revoked the defendant's probation as a result of finding by a preponderance of the evidence that the defendant engaged in a conspiracy to commit a forgery by buying a roll of holograph-imprinted laminate from an inmate to make fraudulent driver's licenses; but the trial court erred in revoking seven instead of just five years of the defendant's probation because, pursuant to O.C.G.A. § 42-8-34.1(d), the maximum sentence authorized was the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation. Since conspiracy to commit first degree forgery was punishable by no more than five years imprisonment, and the defendant had seven years of probation left, only five years should have been revoked. Walker v. State, 289 Ga. App. 879, 658 S.E.2d 375 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

Burden is on the state to prove a violation of probation by a preponderance of the evidence. Farmer v. State, 216 Ga. App. 515, 455 S.E.2d 297 (1995).

- That the quantum of proof necessary to revoke probation has been changed from "slight evidence" to "a preponderance of the evidence" does not affect the rule that a ruling in favor of the probationer, continuing rather than revoking probation, has no collateral estoppel effect in a subsequent criminal trial. State v. Jones, 196 Ga. App. 896, 397 S.E.2d 209 (1990).

- Municipal court was not authorized to order the full sentence into execution upon revocation of a suspended sentence. Hughes v. Town of Tyrone, 211 Ga. App. 616, 440 S.E.2d 58 (1994).

When probationer both committed a felony and violated a special condition, the revocation court was authorized to dispose of probationer as having either violated a special condition or committed a felony. Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996).

- Sentence of defendant to confinement for two years, eight months, and fifteen days upon revocation of probation was reversed because the sentence exceeded the two-year limitation of O.C.G.A. § 42-8-34.1. Gordon v. State, 217 Ga. App. 271, 456 S.E.2d 761 (1995).

- Revocation of probation based on defendant's failure of a drug test was error since the test result lacked probative value and no expert testimony was offered by the state to prove the scientific reliability of the ontrack system as used for the purpose of drug detection. Bowen v. State, 242 Ga. App. 631, 531 S.E.2d 104 (2000).

On appeal from an order revoking a probationer's probation, the trial court erred by admitting the results of a Roche "OnTrack TesTstik" without a showing that the test had reached a scientific state of verifiable certainty, which would allow admission of the test's results in the absence of expert testimony; on remand, the court was directed to determine whether the court would have revoked the balance of the probation term based upon the probationer's failure to comply with the special condition of restitution standing alone, or impose a lesser penalty instead. Mann v. State, 285 Ga. App. 39, 645 S.E.2d 573 (2007).

- Defendant's confinement in a probation detention center was not equivalent to confinement in prison for purposes of O.C.G.A. § 42-1-12(g) because under O.C.G.A. § 42-8-34.1(c), such centers were alternatives to confinement in prison, and therefore the 10-year waiting period for release from sex offender registration requirements did not begin running upon the defendant's release from the center, but from the date the defendant was released from probation. In re White, 306 Ga. App. 365, 702 S.E.2d 694 (2010).

- Claim that probation was improperly revoked due to lack of substantial compliance with O.C.G.A. § 42-8-34.1 regarding the conditions imposed on the probation was a cognizable issue for purposes of a habeas corpus proceeding under O.C.G.A. § 9-14-42(a) as confinement under a sentence that was longer than that permitted by state law invoked a constitutional right. Harvey v. Meadows, 280 Ga. 166, 626 S.E.2d 92 (2006).

- To determine if an ex post facto violation resulted from use of the applied law in a probation revocation matter, the law in effect at the time of the probation revocation must be measured against the law in effect at the time of the initial offense, not the law in effect at the time of the act that resulted in probation revocation. Walker v. Brown, 281 Ga. 468, 639 S.E.2d 470 (2007).

- Use of the amended version of O.C.G.A. § 42-8-34.1 when an appellant's probation was revoked due, in part, to the appellant's failure to abide by a special condition of the probation, did not implicate ex post facto concerns inasmuch as the imposition of a probated sentence is within the discretion of the sentencing court, and the appellant did not have a substantial right to receive probation, much less to receive probation that could not be revoked in its entirety upon violation of a special condition of probation. Walker v. Brown, 281 Ga. 468, 639 S.E.2d 470 (2007).

- Trial court's order revoking a probationer's probation did not violate the separation of powers doctrine under Ga. Const. 1983, Art. I, Sec. II, Para. III, as the probationer's release resulted from an administrative error, and there was no evidence of any executive department finding that the probationer had fully served an imposed sentence in confinement based on a good-time allowance or otherwise. Clark v. State, 287 Ga. App. 176, 651 S.E.2d 106 (2007).

- Notice given to a defendant that the defendant violated probation by committing robbery was sufficient notice that the defendant violated probation by committing the lesser included offense of theft by taking based on the same facts; under these circumstances, the defendant could not reasonably contend for due process purposes that the defendant was not aware of the grounds on which revocation was sought or that the defendant's ability to prepare a defense was compromised. Franklin v. State, 286 Ga. App. 288, 648 S.E.2d 746 (2007).

- As plaintiff had already served two years of plaintiff's probation, the motion to amend the probated sentence, which admittedly had a clerical error, prepared by defendant probation officer did not serve as an amendment to the length of the sentence imposed on the plaintiff. The grant of the order had the effect of revoking the probation provisions contained in the original sentence and requiring that the remainder of the sentence be served in confinement, but it could not, and did not, increase the length of the sentence. Morgan v. Yarbrough, F. Supp. 2d (M.D. Ga. Apr. 30, 2008).

- Two years of a probated sentence were properly revoked because the trial court did not err in allowing a probationer's spouse to testify without informing the spouse of the marital privilege pursuant to former O.C.G.A. §§ 24-9-21 and24-9-23 (see now O.C.G.A. §§ 24-5-501 and24-5-503) because the spouse was aware of the privilege but never asserted the privilege to the trial court, and it was assumed that the spouse waived the right not to testify. Geter v. State, 300 Ga. App. 396, 685 S.E.2d 342 (2009).

- In an action to revoke probation, remand was necessary because the written revocation orders stated that the trial court found that the defendant violated the conditions of probation by an unauthorized change of residence and failure to report to the defendant's probation officer as directed, reasons not charged in the state's petition and the appellate court could not ascertain the true basis for the revocation. Dillard v. State, 319 Ga. App. 299, 735 S.E.2d 297 (2012).

- Trial court did not abuse the court's discretion by revoking the defendant's probation because the ambiguity in the form of the sentencing document was not fatal to the court's revocation since the defendant violated a rule prescribed by the court in failing to complete the drug treatment program the defendant had already begun; however, the trial court erred by failing to credit the defendant for 14 days for time served as outlined in the defendant's sentence when the court revoked the defendant's probation. Floyd v. State, 317 Ga. App. 619, 732 S.E.2d 527 (2012).

- Trial court erred in revoking the defendant's probationary sentence because insufficient evidence supported the court's finding that the defendant violated the terms of the defendant's probation by failing to attend a domestic violence intervention program; the sentence did not require the defendant to complete the domestic violence intervention program by any specific date, and no evidence was presented that it was even possible for the defendant to have completed such a program during the approximately three months that the defendant served on probation prior to being arrested for violating the terms of the defendant's probationary sentence. Marks v. State, 306 Ga. App. 824, 703 S.E.2d 379 (2010).

- Insufficient evidence supported the trial court's findings that the defendant violated the terms of the defendant's probation by failing to complete any of the defendant's community service requirement because no evidence was presented that the defendant was ever directed to begin the defendant's community service on any specific date or at all. Marks v. State, 306 Ga. App. 824, 703 S.E.2d 379 (2010).

- Trial court erred in revoking the defendant's probation on a basis that was not alleged in the state's revocation petition as the state's petition to revoke sought to do so on the ground that the defendant committed a new offense of misdemeanor stalking, but the trial court's order provided that the court was revoking probation on the ground that the defendant committed a new felony offense, presumably the offense of aggravated stalking mentioned by the state during the revocation hearing. Ponder v. State, 341 Ga. App. 276, 800 S.E.2d 19 (2017).

Cited in Ledford v. State, 189 Ga. App. 148, 375 S.E.2d 280 (1988); Eubanks v. State, 197 Ga. App. 731, 399 S.E.2d 290 (1990); Mays v. State, 200 Ga. App. 457, 408 S.E.2d 714 (1991); Riggins v. State, 206 Ga. App. 239, 424 S.E.2d 879 (1992); Penaherrera v. State, 211 Ga. App. 162, 438 S.E.2d 661 (1993); Derrer v. Anthony, 265 Ga. 892, 463 S.E.2d 690 (1995); Ardeneaux v. State, 225 Ga. App. 461, 484 S.E.2d 74 (1997); Griffin v. State, 254 Ga. App. 848, 563 S.E.2d 916 (2002); Kitchens v. State, 234 Ga. App. 785, 508 S.E.2d 176 (1998); Solomon v. State, 237 Ga. App. 655, 516 S.E.2d 376 (1999); Couch v. State, 246 Ga. App. 106, 539 S.E.2d 609 (2000); United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); Griffin v. State, 254 Ga. App. 848, 563 S.E.2d 916 (2002); O'Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010).

Evidence Sufficient for Revocation

Violation of special condition.

- When the violation of probation results solely from infraction of a special condition, not from commission of a felony offense, the revocation court is authorized by subsection (c) to revoke no more than the balance of defendant's probation. Gearinger v. Lee, 266 Ga. 167, 465 S.E.2d 440 (1996).

Trial court's reliance on O.C.G.A. § 42-8-34.1(c) to revoke four years of defendant's probation was appropriate; violation of any new special condition imposed in a previous revocation proceeding or any original condition reimposed therein was deemed to be a violation of a special condition imposed pursuant to the statute. Bryant v. State, 251 Ga. App. 108, 553 S.E.2d 629 (2001).

O.C.G.A. § 42-8-34.1(c) authorizes the revocation of the entirety of a probated sentence in those limited instances when the probationer has a prior revocation based on the violation of a special condition or when the special condition violated by the probationer consists of the failure to make court-ordered payments of restitution, reparation, costs, or fines. Chatman v. Findley, 274 Ga. 54, 548 S.E.2d 5 (2001), superseded by statute as stated in Williams v. Ayers, 276 Ga. 130, 577 S.E.2d 767 (2003).

Under O.C.G.A. § 42-8-34.1, a probated sentence cannot be revoked for more than two years unless the basis for revocation is either a new felony offense or a violation of a special condition of probation. Special condition of probation means a condition of a probated or suspended sentence which: (1) is expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and (2) is identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and requires the defendant to serve up to the balance of the sentence in confinement. Gardner v. State, 259 Ga. App. 375, 577 S.E.2d 69 (2003).

Defendant's original sentence for child molestation contained a virtually verbatim reproduction of the language required by O.C.G.A. § 42-8-34.1 to create a special condition of probation (that the defendant not associate with minors), and a modification order entered after the defendant's first probation violation did not suggest that the warnings contained in the original sentence were no longer applicable. Therefore, when the defendant violated the special condition of probation a second time, the sentencing court was justified under § 42-8-34.1 in requiring the defendant to serve the balance of the sentence in prison. Jowers v. Washington, 284 Ga. 478, 668 S.E.2d 703 (2008).

Trial court did not err in revoking probated sentence because the evidence was sufficient to convict the probationer of making a terroristic threat pursuant to O.C.G.A. § 16-11-37(a) in violation of the probationer's probation, and it was more than sufficient to justify the revocation of a portion of the probationer's probated sentence; the probationer's statement that he would shoot his wife in the head with his pistol would be sufficient to show that the probationer threatened his wife with a crime of violence with the purpose of terrorizing her, and the wife's testimony was corroborated despite the fact that she was the only one who heard the threats and despite the fact that she minimized their significance in her testimony. Geter v. State, 300 Ga. App. 396, 685 S.E.2d 342 (2009).

Because the defendant admitted that the defendant failed to make the required restitution payments, which were made a special condition of the defendant's probation, the trial court did not abuse the court's discretion in revoking the entire balance of the defendant's probation pursuant to O.C.G.A. § 42-8-34.1(e). Polly v. State, 323 Ga. App. 893, 748 S.E.2d 696 (2013).

- At the revocation hearing, the trial court expressly found that the defendant violated probation because the defendant committed the offense of cruelty to children, which was one of the grounds for revocation alleged in the petition, and the transcript of that hearing was a sufficient written record for the appellate court to determine the ground upon which the trial court revoked the defendant's probation. Haji v. State, 331 Ga. App. 116, 769 S.E.2d 811 (2015).

Trial court did not abuse the court's discretion in revoking the defendant's probation upon concluding the defendant did not rebut the presumption of ownership as the evidence of possession included not only the defendant's status as the driver, but also suspicious movements, driving away at low speed after being pulled over and before the officer's approach to the truck, the unanimous disclaimer of ownership (contradicted after arrest), and the defendant's statements immediately after arrest. Reeves v. State, 353 Ga. App. 347, 836 S.E.2d 838 (2019).

- Evidence was sufficient to show that the defendant violated the terms of the defendant's probation because at the probation revocation hearing, the defendant admitted that the defendant smoked marijuana while on probation and that the defendant failed to pay the fines associated with the original conviction for the sale of cocaine. Simpson v. State, 252 Ga. App. 1, 555 S.E.2d 247 (2001).

Evidence was sufficient to support revocation of the second defendant's probation as the state only had to prove by a preponderance of the evidence that the second defendant violated the terms of the second defendant's probation and the state proved that by showing that the second defendant possessed cocaine and by showing that the second defendant associated with disreputable characters, which it proved by establishing that the second defendant admitted the second defendant had associated with the first defendant. Dugger v. State, 260 Ga. App. 843, 581 S.E.2d 655 (2003).

Because the trial court did not err in: (1) admitting evidence of field tests done on the suspected methamphetamine found in a probationer's residence; (2) holding that the methamphetamine residue in a tin found in the probationer's dresser drawer supported a conclusion that the probationer's possession of the methamphetamine amounted to a violation of probation; and (3) admitting evidence showing the basis of the arrest warrant, despite a claim that the probationer was found to have not participated in a conspiracy to traffic methamphetamine, an order revoking the probationer's probation term was upheld. Giang v. State, 285 Ga. App. 491, 646 S.E.2d 710 (2007).

Trial court did not err in revoking probation on the ground that the probationer committed the felony offense of possession of cocaine with intent to distribute because it was within the court's discretion to find that a sufficient foundation had been laid to allow an officer to state the officer's opinion that the substance found in the car in which the probationer was riding was cocaine when the officer testified that the officer had been a member of the narcotics investigation unit for five years, that the officer had received training in the visual identification of cocaine, and that the officer had personally worked over 200 cases where the officer had seized suspected cocaine, which subsequently tested positive for cocaine; the trial court did not manifestly abuse the court's discretion when the court found by a preponderance of the evidence that the substance was cocaine and that the probationer had constructive possession of the cocaine because in addition to the officer's opinion on the identity of the substance, the record contained other circumstantial evidence indicating that the substance was cocaine, and the driver of the car denied that the cocaine was the driver's and stated that the cocaine was thrown to the floorboard under the driver's feet by the probationer. Thurmond v. State, 304 Ga. App. 587, 696 S.E.2d 516 (2010).

Defendant's application for discretionary appeal was improvidently granted and the defendant's appeal was dismissed because, pursuant to O.C.G.A. § 42-8-34.1(b), the evidence was sufficient to show that the defendant violated the terms of the defendant's probation when marijuana and an open container of alcohol were found on the floorboard of a vehicle at the defendant's feet, and the defendant resisted arrest. Killian v. State, 315 Ga. App. 731, 728 S.E.2d 258 (2012).

- Evidence was sufficient to support the trial court's decision to revoke the defendant's probation as a preponderance of the evidence showed that the defendant was in violation of the defendant's restitution obligation since the defendant admitted that the defendant was in arrears on that obligation, and that the defendant committed a second violation of the defendant's probation by committing criminal acts on another person after the victim testified that the defendant struck the victim in the head and was among a group of men who beat and robbed the victim. Cannon v. State, 260 Ga. App. 15, 579 S.E.2d 60 (2003).

Trial court may revoke a probated sentence when the preponderance of the evidence shows that the defendant has committed the alleged violation of probation pursuant to O.C.G.A. § 42-8-34.1(a); thus, since the defendant's voluntary handwriting sample was properly admitted, the trial court did not consider an unreliable photo identification, and an expert was properly qualified, the evidence was sufficient to revoke the defendant's probation. Poole v. State, 270 Ga. App. 432, 606 S.E.2d 878 (2004).

- Inadequacy of a probation revocation petition was not necessarily a basis for setting aside a revocation order if the factual grounds were established at the hearing; thus, a one-month variance between the date alleged in the petition and that proved at the hearing was not fatal. Wolcott v. State, 278 Ga. 664, 604 S.E.2d 478 (2004).

- Trial court was authorized to find, under the preponderance of the evidence standard, that the defendant's presence on private property caused a justifiable and reasonable alarm for the safety of the property, and the revocation of the defendant's probation was proper for the offense of criminal trespass and loitering or prowling when the record showed that the defendant climbed through a hole in a fence around private property at a time when the business was closed and the gate shut, where a manager called police, and where, when the defendant was told that police had been summoned, the defendant left the scene; there was no evidence that the defendant's economic status or homelessness factored into the trial court's decision to revoke defendant's probation. Milanovich v. State, 278 Ga. App. 669, 629 S.E.2d 556 (2006).

- Because the evidence showed that the probationer had continuous access to the firearms in the house on the day of a fatal shooting, and that the probationer intended to, and did in fact exercise control over the sons' access to one of the guns in the minutes leading up to the shooting, the trial court properly found that the probationer had constructive possession of the firearm. Wright v. State, 279 Ga. App. 299, 630 S.E.2d 774 (2006).

There was sufficient evidence to support the revocation of the defendant's probation as the evidence gave rise to a presumption of the defendant's constructive possession of the shotgun found in the closet of the master bedroom of the defendant's residence and there was no evidence others had equal access to the residence. Beavers v. State, 346 Ga. App. 373, 816 S.E.2d 384 (2018).

- Although the evidence that the probationer made the probationer's arrest warrant unavailable to the officers was circumstantial, it was sufficient to authorize the trial court's finding, by a preponderance of the evidence, that the probationer obstructed the officers. Carlson v. State, 280 Ga. App. 595, 634 S.E.2d 410 (2006), cert. denied, No. S06C2099, 2007 Ga. LEXIS 215 (Ga. 2007).

- Defendant's probation was properly revoked as the defendant committed the offense of cruelty to children by maliciously causing the defendant's own daughter cruel or excessive physical or mental pain because the evidence showed that, when the defendant's daughter was four and five years old, the defendant frequently disciplined the child by whipping the child's arms and back with a belt or stick and then locking the child in a dark closet for up to 10 minutes; the child was afraid of the dark and would beat on the closet door and scream and cry to be released from the closet; and, when the child was six, the child attempted to commit suicide to avoid being hurt by the defendant anymore, and because the child was scared of the defendant. Haji v. State, 331 Ga. App. 116, 769 S.E.2d 811 (2015).

- Because sufficient evidence showed that the probationer approached a minor girl and offered that girl candy and admitted having incidental contact with minors, when these actions were explicitly prohibited as a condition of the probationer's probation, once the probationer reported this contact and the victim of that contact corroborated the report, the court did not abuse the court's discretion in revoking the probationer's probation term. Mullens v. State, 289 Ga. App. 872, 658 S.E.2d 421 (2008).

- Evidence was sufficient to support the revocation of the defendant's probation because of the defendant's failure to complete treatment, a specific condition of the defendant's probation. Hilley v. State, 344 Ga. App. 58, 806 S.E.2d 280 (2017).

- Revocation of the appellant's probation was affirmed because evidence was sufficient based on testimony of a witness that the appellant had lied at a plea hearing to exonerate the witness and the trial court did not abuse the court's discretion when the court overruled the appellant's best evidence objection to witness testimony since the rule did not require production of a document simply because the document contained facts testified to by the witness. Almeda v. State, 348 Ga. App. 576, 824 S.E.2d 72 (2019).

Evidence Insufficient for Revocation

Theft by receiving insufficient for probation revocation.

- Revocation of defendant's probation based on theft by receiving was clearly erroneous as a stolen vehicle was seen at the defendant's home and later found in a yard next door to the defendant's home, but there was no evidence that defendant was ever in possession or control of the vehicle, which was a necessary element of theft by receiving. Gonzales v. State, 276 Ga. App. 11, 622 S.E.2d 401 (2005).

- Trial court erred in revoking the defendant's probation based, in part, upon the court's finding that the defendant violated the condition of probation that required the defendant to pay a fine because the record did not reflect that on or before the date of the revocation order that any balance was due. Orr v. State, 318 Ga. App. 77, 733 S.E.2d 378 (2012).

- Trial court committed reversible error in revoking the defendant's probation for failure to pay court-ordered fines and fees because the trial court made the court's determination without making the findings the United States Supreme Court required in revocation proceedings for failure to pay a fine or restitution, but rather, the trial court inquired only as to the defendant's fitness to work before deciding to revoke the defendant's probation; in order to revoke the defendant's probation based solely on the failure to pay those costs, the trial court was required to make a finding as to the defendant's wilfulness, and if the court concluded that the defendant was not at fault, the trial court was required to consider other punishment alternatives, which the court did not do. Johnson v. State, 307 Ga. App. 570, 707 S.E.2d 373 (2011).

- Since the conditions of defendant's probation did not include payment of restitution, costs, or fines, and were imposed by the original sentencing court, the balance of the probation was erroneously revoked under former O.C.G.A. § 42-8-34.1(c). Williams v. Ayers, 276 Ga. 130, 577 S.E.2d 767 (2003)(decided prior to deletion of phrase "imposed pursuant to this Code section").

- Where defendant's mother was also a previously convicted drug violator; the cocaine and money were in defendant's mother's possession; nothing was found on defendant's person; and during the period of time in which the house was under surveillance, the defendant had not been seen entering or leaving the house, this evidence did not establish by a preponderance of the evidence that the defendant violated the defendant's probation by possessing cocaine with intent to distribute. Anderson v. State, 212 Ga. App. 329, 442 S.E.2d 268 (1994).

That a defendant's criminal conviction for trafficking in cocaine was reversed on appeal did not mean that revoking the defendant's probation on the basis of the same trafficking offense was automatically error; the criminal prosecution and the revocation proceeding were separate matters. The validity of the probation revocation was reviewed only in light of the evidence adduced at the revocation hearing. Defendant's probation was improperly revoked because the defendant's alleged trafficking in cocaine had not been established by a preponderance of the evidence as required by O.C.G.A. § 42-8-34.1(b). An informant's hearsay statements were not competent to show the defendant arranged a drug sale and no evidence connected the defendant with cocaine found in a house. Brown v. State, 294 Ga. App. 1, 668 S.E.2d 490 (2008).

Evidence did not support the revocation of the defendant's probation pursuant to O.C.G.A. § 42-8-34.1(b) since, after objections to hearsay evidence were sustained, the evidence did not support a finding that the defendant sold cocaine and marijuana; the only admissible evidence showed that the defendant took something out of a pocket and gave it to two men in exchange for money, and then the two men were taken into custody and found to have cocaine and marijuana in their possession. Wright v. State, 297 Ga. App. 813, 678 S.E.2d 506 (2009).

Trial court erred in finding that the defendant violated the defendant's probation by committing the new felony of possessing a controlled substance, piperazine or TFMPP, in violation of O.C.G.A. § 16-13-30 because the circumstantial evidence was insufficient to show the defendant's constructive possession of the TFMPP pills; the only evidence linking the defendant to the drugs was spatial proximity, but it was at least equally likely that the pills belonged to the driver of the truck where the pills were found. Scott v. State, 305 Ga. App. 596, 699 S.E.2d 894 (2010).

Trial court erred in revoking the defendant's probation because the evidence was insufficient to support the court's finding that the defendant committed the new offense of possession of less than one ounce of marijuana since the state presented no evidence other than the defendant's mere spatial proximity to the marijuana to support a finding that the defendant had the intent to exercise dominion and control over the marijuana. Smith v. State, 306 Ga. App. 54, 701 S.E.2d 490 (2010).

Trial court manifestly abused the court's discretion by granting the state's petition to revoke probation because the evidence was insufficient to support a finding that the probationer possessed marijuana with intent to distribute; the state showed only that the probationer was at the open front door of a trailer and that a sandwich bag of marijuana was found in a closed container inside a closet in a bedroom, but the evidence showed that other individuals had access to the trailer, including a man who sold drugs to a confidential informant. Gray v. State, 313 Ga. App. 470, 722 S.E.2d 98 (2011).

Revocation of probation was reversed because the circumstantial evidence was insufficient to show the defendant's constructive possession of the contraband found. Defendant neither owned nor leased any portion of the property and there was no evidence that the defendant lived on or controlled any of the premises. White v. State, 318 Ga. App. 581, 734 S.E.2d 421 (2012).

- For purposes of probation revocation, a defendant had not committed a new felony offense, escape under O.C.G.A. § 16-10-52, by leaving a drug and alcohol treatment program and by failing to report to a probation officer; the defendant was not then in lawful custody or in a residential facility operated by the Georgia Department of Corrections. Chester v. State, 287 Ga. App. 70, 651 S.E.2d 360 (2007).

- Trial court manifestly abused the court's discretion by granting the state's petition to revoke probation because the evidence was insufficient to find that the probationer's discharge from a day center program was the result of any voluntary or willful conduct on the probationer's part; the probationer's own actions did not cause the probationer to be dismissed from the drug treatment program. Gray v. State, 313 Ga. App. 470, 722 S.E.2d 98 (2011).

- Trial court abused the court's discretion by revoking a defendant's probation because the state failed to prove that the conduct that formed the basis of the court's revocation order was expressly forbidden by any terms of the work-release program. Specifically, the allegation that the defendant "violated a court ordered work release program" was insufficient to satisfy due process, and the state failed to offer any evidence that the defendant was informed of the rules of the work-release program. Legere v. State, 299 Ga. App. 640, 683 S.E.2d 155 (2009).

- Evidence presented during hearing held to determine if defendant's probation should be revoked did not show that defendant did not intend to fulfill the terms of defendant's agreement to locate a car for a buyer, or that defendant had a fraudulent intent when defendant wrote a post-dated check that was dishonored when the buyer presented it for payment; the appellate court reversed the trial court's judgment finding that defendant committed theft by deception and revoking defendant's probation. Young v. State, 265 Ga. App. 425, 594 S.E.2d 667 (2004).

Because the evidence was insufficient, under a preponderance of the evidence standard, to find that defendant committed the offense of burglary, O.C.G.A. § 16-7-1, the trial court manifestly abused the court's discretion by revoking the probation. Parker v. State, 275 Ga. App. 35, 619 S.E.2d 750 (2005).

- Trial court erred in revoking the defendant's probationary sentence because the evidence was insufficient to find that the defendant violated the condition of probation that the defendant have no contact with the victim; no evidence was presented suggesting that the defendant authored untrue statements about the victim, which were posted on several websites, in order to get in touch with or communicate with the victim. Marks v. State, 306 Ga. App. 824, 703 S.E.2d 379 (2010).

- Trial court erred in revoking the defendant's probation on the ground that the defendant violated a condition of the probation by possessing a firearm because the state did not carry the state's burden of showing that the defendant was in possession of the rifle found leaning against the front porch of the defendant's trailer since the probation officer acknowledged that the rifle could have belonged to any one of the defendant's neighbors; there must be something more than mere spatial proximity that links the probationer to the prohibited item. Boatner v. State, 312 Ga. App. 147, 717 S.E.2d 727 (2011).

Trial court erred in revoking the defendant's probation on the ground that the defendant violated a condition of the probation because the evidence was insufficient to support a finding that the defendant possessed a stun gun and other items found in a truck the defendant had been seen driving; the truck belonged to the defendant's brother-in-law, and there was no evidence that the defendant owned the truck, had exclusive control over the truck, or drove the truck prior to the discovery of the stun gun. Boatner v. State, 312 Ga. App. 147, 717 S.E.2d 727 (2011).

- Trial court erred in revoking probation pursuant to O.C.G.A. § 42-8-34.1 on the ground that the probationer committed an aggravated assault in violation of O.C.G.A. § 16-5-21 because there was insufficient evidence that the probationer committed an aggravated assault offense; there was no evidence supporting an aggravated assault based on an alleged victim's apprehension of injury because even assuming that the probationer's collision with another vehicle while evading an officer was the basis for the aggravated assault charge, there was no evidence as to the occupant's apprehension of receiving an injury or as to his or her conduct showing the injury. Klicka v. State, 315 Ga. App. 635, 727 S.E.2d 248 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Violation of diversion center regulations.

- If the conditions of probation include a requirement that the probationer obey the rules and regulations of a diversion center, up to six months of probation time may be revoked under subsection (b) of O.C.G.A. § 42-8-34.1 if the probationer violates those rules and regulations. 1988 Op. Att'y Gen. No. U88-16.

"Two year" provision of subsection (b) of O.C.G.A. § 42-8-34.1 would not apply to probation violations committed by persons assigned to a diversion center as a part of a probated sentence. 1988 Op. Att'y Gen. No. U88-16.

- While misdemeanants may only be referred to probation centers upon initial sentencing pursuant to O.C.G.A. § 42-8-35.4, misdemanants may also be referred to such facilities pursuant to probation revocation proceedings under O.C.G.A. § 42-8-34.1 and after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A). 1999 Op. Att'y Gen. No. 99-14.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 488, 531, 535, 536.

- 24 C.J.S., Criminal Law, §§ 2144-2161.

- Who may institute proceedings to revoke probation, 21 A.L.R.5th 275.

Right and sufficiency of allocation in probation revocation proceeding, 70 A.L.R.5th 533.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 92 A.L.R.6th 1.