2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-38. Arrest or Graduated Sanctions for Probationers Violating Terms; Hearing; Disposition of Charge; Procedure When Probation Revoked in County Other Than That of Conviction

1. Whenever, within the period of probation, an officer believes that a probationer under his or her supervision has violated the terms of probation in a material respect, if graduated sanctions have been made a condition of probation by the court, the officer may impose graduated sanctions as set forth in Code Section 42-8-23 to address the specific conduct leading to such violation or, if the circumstances warrant, may arrest the probationer without warrant, wherever found, and return the probationer to the court granting the probation or, if under supervision in a county or judicial circuit other than that of conviction, to a court of equivalent original criminal jurisdiction within the county wherein the probationer resides for purposes of supervision. Any officer authorized by law to issue warrants may issue a warrant for the arrest of the probationer upon the affidavit of one having knowledge of the alleged violation, returnable forthwith before the court in which revocation proceedings are being brought.
2. The court, upon the probationer being brought before it, may commit the probationer or release the probationer with or without bail to await further hearing, or it may dismiss the charge. If the charge is not dismissed at this time, the court shall give the probationer an opportunity to be heard fully at the earliest possible date on his or her own behalf, in person or by counsel, provided that, if the revocation proceeding is in a court other than the court of the original criminal conviction, the sentencing court shall be given ten days' written notice prior to a hearing on the merits.
3. After the hearing, the court may revoke, modify, or continue the probation. If the probation is revoked, the court may order the execution of the sentence originally imposed or of any portion thereof. In such event, the time that the defendant has served under probation shall be considered as time served and shall be deducted from and considered a part of the time he or she was originally sentenced to serve.
4. In cases where the probation is revoked in a county other than the county of original conviction, the clerk of court in the county revoking probation may record the order of revocation in the minutes of the court, which recordation shall constitute sufficient permanent record of the proceedings in such court. The clerk shall send copies of the order revoking probation to DCS and the Department of Corrections to serve as a temporary commitment and shall send the original order revoking probation and all other papers pertaining thereto to the county of original conviction to be filed with the original records. The clerk of court of the county of original conviction shall then issue a formal commitment to the Department of Corrections.

(Ga. L. 1956, p. 27, § 12; Ga. L. 1960, p. 857, § 1; Ga. L. 1966, p. 440, § 1; Ga. L. 2012, p. 899, § 7-11/HB 1176; Ga. L. 2015, p. 422, § 4-1/HB 310.)

The 2012 amendment, effective July 1, 2012, in the first sentence of subsection (a), twice inserted "or her" near the beginning, substituted "respect, if graduated sanctions have been made a condition of probation by the court, the probation supervisor may impose graduated sanctions as set forth in Code Section 42-8-23 to address the specific conduct leading to such violation or, if the circumstances warrant, may" for "respect, he may", and substituted "return the probationer" for "return him". See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, in subsection (a), in the first sentence, substituted "an officer" for "a probation supervisor" near the beginning, substituted "violated the terms of probation" for "violated his or her probation" near the middle, substituted "officer" for "probation supervisor" in the middle; in subsection (b), in the first sentence, substituted "the probationer" for "him" twice, and added a comma following "hearing", inserted "or her" in the second sentence; inserted "or she" in the last sentence of subsection (c); and in subsection (d), in the first sentence, substituted "minutes of the court" for "judge's minute docket" in the middle, and substituted "such court" for "that court" near the end, substituted "DCS and the Department of Corrections" for "the department" in the second sentence, and substituted "Department of Corrections" for "department" in the last sentence. See Editor's notes for applicability.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this 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 article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For comment criticizing Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975), see 27 Mercer L. Rev. 325 (1975).

ANALYSIS

• General Consideration
• Probation Revocation Procedure
• A. In General
• B. Notice
• C. Hearing
• D. Right to Counsel
• E. Trial by Jury
• F. Search and Seizures
• G. Use of Habeas Corpus
• Quantum of Proof Needed
• Evidence Sufficient for Revocation
• Evidence Insufficient for Revocation
• Computation of and Credit for Time Served
• Decisions Under Prior Law

General Consideration

Scope of section.

- Since the defendant was sentenced to the county jail when not at work, the defendant could not be considered to be on probation, thus an action by the trial court to modify and extend the defendant's sentence under O.C.G.A. § 42-8-38 was a nullity, since § 42-8-38 relates solely to revocation of probation. Howell v. State, 160 Ga. App. 562, 287 S.E.2d 573 (1981).

- Probated portion of a sentence may be revoked or modified at any time during the term of the probated sentence after hearing and finding of probation violation. Logan v. Lee, 247 Ga. 608, 278 S.E.2d 1 (1981).

- Even when a condition of probation has not been complied with, circumstances of an individual defendant must be taken into consideration in determining whether revocation is warranted. Malcom v. State, 162 Ga. App. 587, 291 S.E.2d 756 (1982).

- Trial court's 1998 sentencing order denying the defendant exoneration and discharge was void as a matter of law because the state never filed a motion for revocation; thus, exoneration and discharge was automatic under the First Offender Act, O.C.G.A. § 42-8-60(e), (g), and (h), and the defendant's motion to correct the void sentence was improperly denied. Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016).

- While the trial court has jurisdiction to change or modify the terms of the original sentence, it cannot increase the sentence originally passed. Howell v. State, 160 Ga. App. 562, 287 S.E.2d 573 (1981).

- Subsection (c) of O.C.G.A. § 42-8-38 limits the power of the trial court to a decision affecting only the probationary status of the previously convicted probationer. In no way does it provide for the imposition of a sentence of any kind based upon the charge underlying an alleged violation of the terms of a previously ordered probation. Abney v. State, 170 Ga. App. 265, 316 S.E.2d 845 (1984).

- It was error to hold that a probationer's failure to abide by the diversion center's regulations made the probationer liable for the felony offense of escape rather than for the mere revocation of the probationer's probation. Unsatisfactory performance in the program would subject the probationer to revocation of probation as specified by O.C.G.A. § 42-8-38; however, an alternative to revocation of probation would be the imposition of the more severe sanctions of O.C.G.A. § 16-10-52(a)(3) (redesignated as (a)(5) in 1997). When any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered. Chandler v. State, 257 Ga. 775, 364 S.E.2d 273 (1988).

- 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).

- After the defendant received a sentence which unambiguously revoked the defendant's prior probation, the defendant fully served the time imposed therein, and there was no indication in the sentence that any portion of the defendant's probation was to be reinstated upon the defendant's release, that sentence was fully satisfied when the defendant was released from jail, and the court's order subsequently revoking the defendant's probation was invalid as there was nothing left to revoke. Hulen v. State, 207 Ga. App. 465, 428 S.E.2d 405 (1993).

- Trial court misinterpreted O.C.G.A. § 42-8-38(a) as dealing with matters which were done within the period of probation when the court denied the state's petition to revoke a probationer's probation. State v. Huckeba, 258 Ga. App. 627, 574 S.E.2d 856 (2002).

When a convicted defendant's "future good behavior" has already been compromised by the commission of another criminal act even before the formal probationary period begins, a trial court should not be required to allow such defendant to serve a previously imposed probated sentence when the court deems that protection of society demands revocation. The trial court's interpretation of O.C.G.A. § 42-8-38(a) as precluding the exercise of the court's discretion to consider the state's petition to revoke the defendant's probation was an error as a matter of law. State v. Huckeba, 258 Ga. App. 627, 574 S.E.2d 856 (2002).

- Trial court erred in denying a probationer's motion to suppress the evidence seized from the probationer's apartment as, even though the entry into the apartment for the purpose of effecting an arrest of the probationer was permissible, most of the evidence seized without a warrant after the probationer was not found in the apartment had to be excluded under the Fourth Amendment as the search conducted was only permissible insofar as the search involved the observation of items of obvious evidentiary value in plain view during the time and activities required to attempt the probationer's arrest. The probationer was never placed on notice that the probationer was going to be subjected to warrantless searches, and the state failed to demonstrate any exigent circumstances justifying the warrantless search. Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007).

Cited in King v. Adams, 410 F.2d 455 (5th Cir. 1969); Young v. State, 123 Ga. App. 791, 182 S.E.2d 676 (1971); Brogdon v. State, 136 Ga. App. 121, 220 S.E.2d 471 (1975); Taylor v. State, 136 Ga. App. 317, 221 S.E.2d 224 (1975); Ware v. State, 137 Ga. App. 673, 224 S.E.2d 873 (1976); Robinson v. State, 139 Ga. App. 480, 228 S.E.2d 615 (1976); Alexander v. State, 141 Ga. App. 16, 232 S.E.2d 364 (1977); Palmer v. State, 144 Ga. App. 480, 241 S.E.2d 597 (1978); Harper v. State, 146 Ga. App. 337, 246 S.E.2d 391 (1978); Kilgore v. State, 155 Ga. App. 739, 272 S.E.2d 505 (1980); McElroy v. State, 247 Ga. 355, 276 S.E.2d 38 (1981); Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Brinson, 248 Ga. 380, 283 S.E.2d 463 (1981); Garland v. State, 160 Ga. App. 97, 286 S.E.2d 330 (1981); Brewer v. State, 162 Ga. App. 228, 291 S.E.2d 87 (1982); Brooks v. State, 162 Ga. App. 485, 292 S.E.2d 89 (1982); Shaw v. State, 164 Ga. App. 208, 296 S.E.2d 765 (1982); Smith v. State, 164 Ga. App. 384, 297 S.E.2d 738 (1982); Beasley v. State, 165 Ga. App. 160, 299 S.E.2d 886 (1983); Strickland v. State, 165 Ga. App. 197, 300 S.E.2d 537 (1983); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Williams v. State, 253 Ga. App. 10, 557 S.E.2d 473 (2001); Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012).

Probation Revocation Procedure

1. In General

- Revocation of probation based at least in part upon alleged commission of a crime for which a party has not yet stood trial and been found guilty does not contravene principles of due process and fundamental fairness. King v. State, 154 Ga. App. 549, 269 S.E.2d 55 (1980).

- Probation may be revoked by a court of equivalent original criminal jurisdiction when the probationer's county of supervision and residence is different from the county of original conviction. Biddy v. State, 132 Ga. App. 264, 208 S.E.2d 22 (1974).

Judge in the Dublin judicial circuit had jurisdiction to revoke a former prisoner's probation because: (1) while the prisoner pled guilty in the Macon judicial circuit and the prisoner's sentence was probated, the prisoner was involved in a theft which resulted in a partial revocation of probation and assignment to a probation detention center in the Dublin judicial circuit and, during the prisoner's confinement in the Dublin judicial circuit, the prisoner violated the terms of the prisoner's probation; and (2) because the prisoner was under supervision in a judicial circuit other than that of the prisoner's conviction, the prisoner was properly returned to a court of equivalent original criminal jurisdiction within the county wherein the prisoner was residing for the purposes of supervision under O.C.G.A. § 42-8-38(a). Williams v. Donald, F. Supp. 2d (M.D. Ga. Aug. 14, 2007).

- When an act on which revocation of probation is based is a felony, it is not erroneous for the hearing judge to base revocation on that accusation, before the accused shall have first been tried and found guilty of the criminal charge. Evans v. State, 153 Ga. App. 764, 266 S.E.2d 545 (1980).

- Following technical violations of the conditions of probation, short of conviction for another crime or a determination of initial ineligibility, the trial court had discretion to continue a first offender on probation without first revoking first offender status, entering an adjudication of guilt, or resentencing for the underlying offense. Mohammed v. State, 226 Ga. App. 387, 486 S.E.2d 652 (1997).

Nothing in O.C.G.A. § 42-8-38 ties the affidavit requirement for the issuance of arrest warrants to the validity of a subsequent revocation of probation. Even if the defendant's arrest on charges of violating the defendant's probation was illegal, that is not a bar to the subsequent revocation of the defendant's probation. 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).

- Any question as to the excessiveness of a sentence which is otherwise legal should be addressed to the sentence review panel. Strickland v. State, 158 Ga. App. 340, 280 S.E.2d 168 (1981).

- When the record from which basis for revocation can be ascertained is sufficient, it is not necessary for the trier of fact to commit the judge's findings to a separate piece of paper. Hayes v. State, 168 Ga. App. 94, 308 S.E.2d 227 (1983).

- Court need not hold separate dispositional or sentencing hearing after finding grounds for revocation of probation. Hayes v. State, 157 Ga. App. 659, 278 S.E.2d 424 (1981).

- Power to make a warrantless arrest of a known probation violator is not limited to the probation supervisor, but also includes a law enforcement officer with general arrest powers who has trustworthy information as to the probation violation. Battle v. State, 254 Ga. 666, 333 S.E.2d 599 (1985).

2. Necessity for Prescribed Rules and Regulations

Purpose for showing rules and regulations prescribed.

- Probated sentences must show the rules and regulations prescribed so that a violation of such rules and regulations will revoke the parole. Simmons v. State, 96 Ga. App. 718, 101 S.E.2d 111 (1957).

- Trial court erred in revoking purported probation sentence since construed as a whole, the sentence was an alternative one and the defendant was to be discharged upon payment of the fines and costs. Favors v. State, 95 Ga. App. 318, 97 S.E.2d 613 (1957).

- Since the court cannot revoke a probated sentence unless that sentence has conditions sufficiently definite to be enforceable, and unless those conditions have not been complied with, and since the defendant is entitled to notice and an opportunity to be heard on the charge which is brought against the defendant, only those alleged violations which are terms of the original sentence, and notice of the violation of which has been given the probationer, may be considered by the court on the hearing to revoke the probated sentence. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

- When the trial court erroneously ruled that "theft by disposing" is a lesser included offense of theft by taking, revocation of the defendant's probation could not stand because the revocation was not made on the ground stated in the petition. Sosbee v. State, 155 Ga. App. 196, 270 S.E.2d 367 (1980).

3. Constitutional Requirements

A. In General

- Probation is granted as a privilege, and not as a matter of right; and revocation of probation is punishment for the crime for which the defendant was convicted in the first instance. Scott v. State, 131 Ga. App. 504, 206 S.E.2d 137 (1974); Heard v. State, 154 Ga. App. 420, 268 S.E.2d 757 (1980).

- Because parole and probation revocation proceedings are not designed to punish a criminal defendant for violation of a criminal law and, because the purpose of parole and probation revocation proceedings is to determine whether a parolee or probationer has violated the conditions of the probationer's parole or probation, such proceedings are fundamentally distinguishable from juvenile proceedings, the latter being indistinguishable from a criminal prosecution, and, thus, the double jeopardy clause of U.S. Const., amend. 5 does not apply to parole and probation revocation proceedings. United States v. Whitney, 649 F.2d 296 (5th Cir. 1981).

- Revocation of probation, premised upon failure to timely pay court ordered restitution, does not violate due process and equal protection. Wilson v. State, 155 Ga. App. 825, 273 S.E.2d 210 (1980).

Minimum requirements of due process for parole revocation are: a written statement by the fact finders as to the evidence relied on and reasons for revoking parole. Reed v. State, 151 Ga. App. 224, 259 S.E.2d 209 (1979).

Although this section does not require it, "a written statement by the fact finders as to the evidence relied on and reasons for revoking probation" has been established as a minimum due process requirement in assuring the constitutional rights of an individual who will be condemned to suffer grievous loss by restraint of liberty. Moore v. State, 151 Ga. App. 791, 261 S.E.2d 730 (1979).

- Order revoking probation must state evidence relied upon and reasons for revocation. Rey v. State, 156 Ga. App. 474, 274 S.E.2d 822 (1980).

- When uncorroborated accomplice testimony is shown inherently to lack credit, or is sufficiently controverted, abuse of discretion in admitting it in hearing may become manifest. Christy v. State, 134 Ga. App. 504, 215 S.E.2d 267 (1975).

B. Notice

Notice and hearing required for revocation.

- When probation is sought to be revoked, the defendant is entitled to notice, which notice must be sufficient to inform the defendant of the manner in which the defendant has violated the defendant's parole and give the defendant an opportunity to defend. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

Failure to afford probationer notice and a hearing would render a revocation order void for lack of due process of law. Sellers v. State, 107 Ga. App. 516, 130 S.E.2d 790 (1963); Scott v. State, 131 Ga. App. 504, 206 S.E.2d 137 (1974).

In order to revoke the probationary features of a sentence the defendant must have notice and opportunity to be heard, the notice being sufficient to inform the defendant not only of the time and place of the hearing and the fact that revocation is sought, but the grounds upon which it is based. Horton v. State, 122 Ga. App. 106, 176 S.E.2d 287 (1970).

When a person is placed under a probation sentence, probation cannot be revoked without notice to the probationer and an opportunity to be heard on the question as to whether the probationer violated its terms. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972).

- When the defendant received written notice of the claimed violation of probation, the disclosure of the evidence against the defendant, an opportunity to be heard in person and to present witnesses and document evidence, the right to confront and cross-examine adverse witnesses, heard by a neutral and detached judicial officer, with a written statement by the fact finder as to the evidence relied on and reasons for revoking probation, application of the "slight evidence" rule did not deny the defendant due process and equal protection. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

C. Hearing

Time period between petition and hearing.

- Absent special circumstances, 30 days is a reasonable time period between petition and hearing, for the sake of both the state and the offender. Anderson v. State, 166 Ga. App. 521, 304 S.E.2d 747 (1983).

Purpose of a probation revocation hearing is to determine whether the conduct of the defendant during the probation period has conformed to the terms and conditions outlined in the order of probation. Evans v. State, 153 Ga. App. 764, 266 S.E.2d 545 (1980).

- Hearing required need not meet the requisites of a jury trial; the proceedings may be informal or summary. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972); Wellons v. State, 144 Ga. App. 218, 240 S.E.2d 768 (1977).

- Rules of evidence of normal criminal proceedings are not applicable to a hearing under this section and evidentiary matters are within the discretion of the trial judge. Christy v. State, 134 Ga. App. 504, 215 S.E.2d 267 (1975).

- Failure of trial court to afford a preliminary hearing to establish probable cause to conduct a revocation of probation hearing followed by an evidentiary show cause hearing, rather than consolidating the procedure into one hearing does not violate due process. Wilson v. State, 152 Ga. App. 695, 263 S.E.2d 691 (1979), cert. denied, 449 U.S. 847, 101 S. Ct. 133, 66 L. Ed. 2d 57 (1980).

- Hearing of this character is not a trial on a criminal charge, but is a hearing to judicially determine whether the conduct of the defendant during the probation period has conformed to the course outlined in the order of probation. If the act which violated the probation should happen to be a criminal one, it does not thereby change the character of the hearing. Sparks v. State, 77 Ga. App. 22, 47 S.E.2d 678 (1948); Johnson v. State, 214 Ga. 818, 108 S.E.2d 313 (1959).

Fact that act alleged to be in violation of probation is of a criminal nature does not change character of revocation hearing. Robinson v. State, 154 Ga. App. 591, 269 S.E.2d 86 (1980).

- Fact that certain defenses could also be advanced in a trial upon the merits of the offense does not in any way drain the legal effect of a failure to offer defenses at the dispositional hearing. Wilson v. State, 152 Ga. App. 695, 263 S.E.2d 691 (1979), cert. denied, 449 U.S. 847, 101 S. Ct. 133, 66 L. Ed. 2d 57 (1980).

- Defendant is not in the position of one accused by indictment, even though the probationary condition alleged to have been violated is the commission of a crime. Jackson v. State, 140 Ga. App. 659, 231 S.E.2d 554 (1976).

- When no special plea of insanity is filed, the granting of a motion for a psychiatric examination is within the sound discretion of the trial court. This rule attaches in probation revocation hearings as well as in criminal proceedings. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).

- When there is no transcript of hearing, an appellate court is bound to assume that the trial judge's findings are supported by sufficient competent evidence. Nalley v. State, 147 Ga. App. 634, 249 S.E.2d 685 (1978).

D. Right to Counsel

Probation revocation hearing.

- There is no right to counsel at a probation revocation hearing. Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975).

Defendant is not ordinarily entitled to appointed counsel for a probation revocation hearing. Kemp v. Spradlin, 250 Ga. 829, 301 S.E.2d 874 (1983).

- Indigent is not entitled to appointed counsel at the indigent's probation revocation hearing. Nalley v. State, 147 Ga. App. 634, 249 S.E.2d 685 (1978).

- Proceeding to revoke a probated sentence of one convicted of a criminal offense is not a criminal proceeding, and the failure of the court to supply the convict with counsel is not a denial of the right to counsel unless a statute provides for benefit of counsel at such a hearing. Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221 (1967).

- See Kemp v. Spradlin, 250 Ga. 829, 301 S.E.2d 874 (1983).

E. Trial by Jury

Constitutionality.

- Ga. L. 1956, p. 27, § 12 (see now O.C.G.A. § 42-8-38) is not unconstitutional as a violation of Ga. Const. Art. I, Sec. I, Para. V (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) because no provision is made for trial by jury upon the hearing to determine whether a parole shall be revoked. 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, 108 S.E.2d 313 (1959).

- Hearing on a revocation is not a trial on a criminal charge and the probationer has no right to a trial by jury. Sellers v. State, 107 Ga. App. 516, 130 S.E.2d 790 (1963); Scott v. State, 131 Ga. App. 504, 206 S.E.2d 137 (1974).

F. Search and Seizures

Basis for reasonable search by probation officer.

- Search by a probation officer is reasonable if it is actuated by the legitimate operation of the probation supervision process and the probation officer acts reasonably in performing those duties. Austin v. State, 148 Ga. App. 784, 252 S.E.2d 696 (1979), overruled on other grounds, State v. Thackston, 289 Ga. 412, 716 S.E.2d 517 (2011).

- If an affiant shows ample facts to authorize the issuing magistrate to conclude that there is probable cause to believe that a crime of the nature set forth in the affidavits has been committed and that evidence of the crime would be produced by a search of the premises described in the affidavits, the fact that much of the affiant's information is derived from informants will not vitiate the warrant. Causey v. State, 148 Ga. App. 755, 252 S.E.2d 664 (1979).

- Assuming that the defendant's arrest on charges of violating the defendant's probation was illegal, this would not in and of itself constitute a bar to the subsequent revocation of the defendant's probation. Hayes v. State, 157 Ga. App. 659, 278 S.E.2d 424 (1981).

G. Use of Habeas Corpus

Correction of errors or irregularities committed at trial.

- When no exception was taken to order revoking probation as provided by law, the petitioner may not seek review, by habeas corpus, of the judgment revoking the probationary sentence imposed upon his wife, since habeas corpus cannot be used as a substitute for appeal or other remedial procedure, for the correction of errors or irregularities alleged to have been committed by a trial court. Balkcom v. Parris, 215 Ga. 123, 109 S.E.2d 48 (1959).

- Allegations in petition for habeas corpus that order of revocation under attack was premature in that the probationer was entitled to a jury trial on the question of whether or not the probationer had committed the offense in violation of the terms of the probationer's probation, prior to the revocation, that three days' notice of the revocation hearing was not sufficient or adequate notice, that the probationer had been acquitted by a jury, subsequent to the order of revocation, of the offense alleged to have constituted the probation violation, and that the evidence on the hearing was insufficient to sustain the exercise of the judge's discretion in revoking probation were insufficient to sustain the prisoner's discharge under the writ in that such allegations failed to show the judgment of revocation to be void, which is requisite to such relief. Balkcom v. Parris, 215 Ga. 123, 109 S.E.2d 48 (1959).

Quantum of Proof Needed

1. In General

- Quantum of evidence sufficient to justify trial court in revoking a probationary sentence is less than that necessary to sustain a conviction in the first instance. Lankford v. State, 112 Ga. App. 204, 144 S.E.2d 463 (1965); Boston v. State, 128 Ga. App. 576, 197 S.E.2d 504 (1973); Christy v. State, 134 Ga. App. 504, 215 S.E.2d 267 (1975); Barlow v. State, 140 Ga. App. 667, 231 S.E.2d 561 (1976); Swain v. State, 157 Ga. App. 868, 278 S.E.2d 743 (1981); Keasler v. State, 165 Ga. App. 561, 301 S.E.2d 915 (1983).

All that is required to revoke probation is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. Evans v. State, 153 Ga. App. 764, 266 S.E.2d 545 (1980).

Revocation of probation can rest upon evidence less than is required for conviction. Kemp v. Spradlin, 250 Ga. 829, 301 S.E.2d 874 (1983).

Quality or quantity necessary for revocation is not that demanded for conviction of a crime. Seldon v. State, 166 Ga. App. 326, 304 S.E.2d 475 (1983).

2. Slight Evidence Test

Evidence for revocation.

- Only slight evidence is required to authorize revocation. Christy v. State, 134 Ga. App. 504, 215 S.E.2d 267 (1975); Barlow v. State, 140 Ga. App. 667, 231 S.E.2d 561 (1976); Gilbert v. State, 150 Ga. App. 339, 258 S.E.2d 27 (1979); Wade v. State, 152 Ga. App. 529, 263 S.E.2d 268 (1979); Pickard v. State, 152 Ga. App. 707, 263 S.E.2d 679 (1979); Morris v. State, 153 Ga. App. 415, 265 S.E.2d 337 (1980); White v. State, 153 Ga. App. 808, 266 S.E.2d 528 (1980); Heard v. State, 154 Ga. App. 420, 268 S.E.2d 757 (1980); King v. State, 154 Ga. App. 549, 269 S.E.2d 55 (1980); Robinson v. State, 154 Ga. App. 591, 269 S.E.2d 86 (1980); Lynch v. State, 158 Ga. App. 232, 279 S.E.2d 537 (1981); Davis v. State, 165 Ga. App. 709, 302 S.E.2d 610 (1983); Seldon v. State, 166 Ga. App. 326, 304 S.E.2d 475 (1983).

- Slight evidence will support a judgment of revocation since the trial court on such a hearing has a wide discretion in considering the evidence against the probationer. Horton v. State, 122 Ga. App. 106, 176 S.E.2d 287 (1970).

Only slight evidence is required which need only be sufficient to satisfy the trial judge in exercise of the judge's sound discretion that the defendant has violated the terms of the defendant's probation. Raines v. State, 130 Ga. App. 1, 202 S.E.2d 253 (1973).

It is not necessary that evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence. Only "slight evidence" is required. Scott v. State, 131 Ga. App. 504, 206 S.E.2d 137 (1974).

On probation revocation hearing, slight evidence will be sufficient to support judgment revoking the probationary feature of the sentence. Hulett v. State, 150 Ga. App. 367, 258 S.E.2d 48 (1979).

Only slight evidence is necessary to support a finding of a violation of probation. Jones v. State, 153 Ga. App. 411, 265 S.E.2d 334 (1980).

There must be some evidence that the defendant violated the terms of the defendant's probated sentence as charged in the notice given the defendant of the revocation hearing. Young v. State, 153 Ga. App. 454, 265 S.E.2d 362 (1980).

In determining sufficiency of evidence in probation revocation hearing, the trial judge is not bound by the same rules of evidence as is jury in passing on the guilt or innocence of the accused in the first instance, but has wide discretion and only slight evidence is required to authorize revocation. Partee v. State, 155 Ga. App. 662, 272 S.E.2d 528 (1980).

- Under the "slight" evidence test, the standard by which the sufficiency of the evidence is determined is not violative of due process in that it is less than that necessary to sustain a conviction. King v. State, 154 Ga. App. 549, 269 S.E.2d 55 (1980).

- When the trial judge finds slight evidence that the conditions of probation have been violated, the judge may through the judge's discretionary power revoke the probation, and such action may not be overturned without a showing that there has been a manifest abuse of discretion. Hayes v. State, 157 Ga. App. 659, 278 S.E.2d 424 (1981).

Only slight evidence is required to authorize revocation of probation and when there is even slight evidence of misconduct the appellate court will not interfere with revocation unless there has been a manifest abuse of discretion. Gamble v. State, 157 Ga. App. 613, 278 S.E.2d 413 (1981); Swain v. State, 157 Ga. App. 868, 278 S.E.2d 743 (1981); Tinsley v. State, 159 Ga. App. 579, 284 S.E.2d 84 (1981).

3. Showing of Some Evidence

Appeal of revocation.

- Although the trial court on a hearing for the revocation of probation has a wide discretion, and although only slight evidence will support a judgment of revocation, some evidence is required. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

While the trial court has wide discretion in revoking a probated sentence, and while only slight evidence will support a judgment of revocation, some evidence that the defendant violated the terms of the defendant's probated sentence as charged in the notice given the defendant of the revocation hearing is required. Kendrick v. State, 125 Ga. App. 326, 187 S.E.2d 580 (1972).

Evidence need not support finding beyond reasonable doubt or even by the preponderance of the evidence but there must be some evidence for the judge to consider as the sole trier of fact. Wellons v. State, 144 Ga. App. 218, 240 S.E.2d 768 (1977).

Quantum of evidence necessary to support a probation revocation on appeal is merely that there be some legal evidence to support the finding; when no such evidence exists the decision must be reversed. Moore v. State, 155 Ga. App. 299, 270 S.E.2d 713 (1980).

4. Proof Need Not Sustain Criminal Conviction

Proof required.

- It is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of evidence. The judge is the trier of the facts and the judge has a very wide discretion. Sellers v. State, 107 Ga. App. 516, 130 S.E.2d 790 (1963).

Revocation of probation does not require proof sufficient to sustain a criminal conviction. Bentley v. State, 153 Ga. App. 408, 265 S.E.2d 292 (1980).

Revocation of probation does not require proof sufficient to sustain a criminal conviction beyond a reasonable doubt. Sosbee v. State, 155 Ga. App. 196, 270 S.E.2d 367 (1980).

Benefit and protection afforded under due process and equal protection clauses of Constitutions have not been violated in that the establishment of the defendant's guilt beyond reasonable doubt is not necessary to justify the revocation of a sentence of probation. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

- Under subsection (c) of O.C.G.A. § 42-8-38, the revocation or continuance of probation is still within the discretion of the trial court so long as a ruling to revoke is based on at least a preponderance of the evidence, as required by O.C.G.A. § 42-8-34.1(a) (now subsection (b)). The exercise of discretion in declining to revoke probation is not an adjudication of the allegations sufficient to constitute acquittal on the criminal charge forming the basis for the revocation proceeding. State v. Jones, 196 Ga. App. 896, 397 S.E.2d 209 (1990).

5. Review of Revocation by Appeals Court

Manifest abuse of discretion by trial court.

- Appeals court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. Sellers v. State, 107 Ga. App. 516, 130 S.E.2d 790 (1963); Scott v. State, 131 Ga. App. 504, 206 S.E.2d 137 (1974).

When, after notice and hearing, the court revokes the probationary feature of a sentence, and there is some evidence which would indicate that there has been a violation thereof, the Court of Appeals will not interfere unless a manifest abuse of discretion on the part of the trial court appears. Lankford v. State, 112 Ga. App. 204, 144 S.E.2d 463 (1965).

When there is any evidence supporting the offense charged as a violation of the probation, an appellate court will not interfere with a revocation unless there has been a manifest abuse of discretion. Barlow v. State, 140 Ga. App. 667, 231 S.E.2d 561 (1976); Clay v. State, 143 Ga. App. 361, 238 S.E.2d 724 (1977); Gilbert v. State, 150 Ga. App. 339, 258 S.E.2d 27 (1979).

- On hearing to determine whether probation should be revoked, the judge is the sole trier of fact and when there is even slight evidence the appellate court will not interfere with revocation unless there has been an abuse of discretion. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972).

Even when there is slight evidence of misconduct, the appellate court will not interfere with revocation unless there has been a manifest abuse of discretion. Boston v. State, 128 Ga. App. 576, 197 S.E.2d 504 (1973); Christy v. State, 134 Ga. App. 504, 215 S.E.2d 267 (1975); Keasler v. State, 165 Ga. App. 561, 301 S.E.2d 915 (1983).

- Because only slight evidence is required for revocation of probation any lack of specificity as to the date of the alleged violation in the rule nisi is harmless. Wilson v. State, 152 Ga. App. 695, 263 S.E.2d 691 (1979), cert. denied, 449 U.S. 847, 101 S. Ct. 133, 66 L. Ed. 2d 57 (1980).

Slight evidence is sufficient to support a finding of probation revocation and evidence of criminal acts of which a defendant has been acquitted may be used to revoke the defendant's probation. Kellam v. State, 154 Ga. App. 561, 269 S.E.2d 493 (1980).

Trial court erred in considering the prior testimony of witnesses who were not shown to be dead, disqualified, or otherwise inaccessible in a probation revocation hearing; nevertheless, any inadmissible hearsay was merely cumulative of the admissible probative testimony which was sufficient to show by a preponderance of the evidence that the defendant committed the offense of aggravated assault. Wolcott v. State, 278 Ga. 664, 604 S.E.2d 478 (2004).

Evidence Sufficient for Revocation

Testimony of juvenile combined with arresting officer.

- Juvenile's testimony that the defendant had broken window of jewelry store by throwing a rock, when added to the testimony of the police officer, who arrested them when the officer drove to the vicinity of the jewelry store after an alarm had gone off, that the officer did not see any other person in the area of the jewelry store except the defendant and the juvenile, under all the circumstances, authorized the court's revocation of probated sentence. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

- Testimony by a police agent identifying the substance sold the agent by the defendant as marijuana is sufficient to authorize revocation of the defendant's probation. Smith v. State, 144 Ga. App. 631, 241 S.E.2d 499 (1978).

- Although the evidence that the probationer made the probationer's arrest warrant unavailable to the officers was circumstantial, the evidence 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).

- Evidentiary showing of theft by deception is sufficient to authorize the revocation of probation. McKnight v. State, 151 Ga. App. 121, 258 S.E.2d 918 (1979).

Evidence Insufficient for Revocation

Charge in notice of arrest without introduction of supporting evidence.

- When notice contained in the special order of arrest charged the defendant with manufacturing illicit whiskey, but no evidence at all was introduced, mere fact that the defendant was operating a truck loaded with sugar, and that the defendant refused to give the name of the purchaser or seller of the sugar and that the defendant had no bill of lading or bill of sale for the sugar, which facts were perfectly consistent with the defendant's contention that the defendant was doing some hauling, was not sufficient to authorize revocation of the probation order. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

- When notice contained in the order of arrest failed to charge the defendant with a violation of that provision of the probation order prohibiting the defendant from leaving the state without permission, the mere fact that the defendant was stopped in Alabama was not a sufficient ground for revocation. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

Probation may not be revoked when there is no evidence the defendant violated its terms in the manner charged in the notice, even though there may be evidence at the hearing that the defendant violated the terms of probation in some other manner as to which no notice was given. Horton v. State, 122 Ga. App. 106, 176 S.E.2d 287 (1970).

- Revocation of probation based on the defendant's failure of a drug test was error when the test result lacked probative value since 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).

Computation of and Credit for Time Served

Crediting of probation toward imprisonment.

- When probationer is sentenced to serve time in penal institution for offense for which the probationer has spent time on probation, that the probation time must be credited to any sentence received, including cases involving first offender probation. Stephens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980); McKinney v. State, 240 Ga. App. 812, 525 S.E.2d 395 (1999).

In the case of the defendant who was convicted and sentenced for child molestation, a resentencing order requiring the defendant to serve a total of 13 years - five to be served in prison beyond the three already served on probation, to be followed by an additional five years on probation - was not error because the defendant was resentenced within the maximum sentence allowable by law, the defendant was clearly advised of this possibility, and the court credited the time already served on probation. Roland v. Meadows, 273 Ga. 857, 548 S.E.2d 289 (2001).

Trial court did not err in granting summary judgment to the defendants in an inmate's action alleging that the inmate, who had violated probation, was imprisoned for longer than allowed as O.C.G.A. § 42-8-38 did not require the inmate's pre-revocation of probation jail time to be credited toward the inmate's sentence in a manner that would reduce the overall time served (either on probation or in confinement) to something less than the 10 years for which the inmate was sentenced. Stallings v. Sparks, 314 Ga. App. 216, 723 S.E.2d 514 (2012).

- Since the trial court can order execution of sentence originally imposed, the probationer is entitled to assert that periods of imprisonment prior to final disposition of the prisoner's revocation petition must be counted toward that original sentence, and the order of revocation cannot result in the execution of a longer sentence than was originally imposed. Dickey v. State, 157 Ga. App. 13, 276 S.E.2d 75 (1981).

Since the trial court cannot, under O.C.G.A. §§ 17-10-1 and42-8-38, increase sentence originally passed, period of time probationer serves in jail prior to final disposition of the probationer's revocation proceeding is credited as time served on original sentence and thus limits the permissible parameters of the trial court's power to revoke. Dickey v. State, 157 Ga. App. 13, 276 S.E.2d 75 (1981).

Probationer imprisoned and awaiting final determination of whether the probationer violated probation and what part of the probationer's original sentence should be executed is not serving that part of the probationer's sentence which is subsequently ordered executed when violation is found. During this period, the probationer is continuing to serve the probated part of the probationer's sentence prior to final disposition of the revocation petition. Such periods do not suspend the running of the original sentence received and the probationer is entitled to assert that those periods pending a determination of probation revocation are, in effect, served under probation and shall be considered as time served and shall be deducted from and considered a part of the time the probationer was originally sentenced to serve. Dickey v. State, 157 Ga. App. 13, 276 S.E.2d 75 (1981).

- Time served by probationers incarcerated while awaiting a probation revocation hearing will not be credited toward any sentence imposed upon the probationers at such hearing. Penney v. State, 157 Ga. App. 737, 278 S.E.2d 460 (1981).

- Once service of suspended sentence begins, either by incarceration or probation, it cannot exceed maximum sentence of confinement which could have been imposed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

- While under former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) the trial court did have jurisdiction to change or modify the terms of the original sentence, the court cannot, under former Code 1933, § 27-2502 and Ga. L. 1956, p. 27, § 12 (see now O.C.G.A. §§ 17-10-1 and42-8-38), increase the sentence originally passed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

After the defendant violated the terms of the defendant's probation, the court could not impose the maximum sentence without giving the defendant credit for time served on probation since to do so would impose a sentence exceeding the maximum allowed by law. Franklin v. State, 236 Ga. App. 401, 512 S.E.2d 304 (1999).

The revoking court may not increase the original sentence. Thus the language "modify or change" in former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) was limited by Ga. L. 1966, p. 440, § 1 (see now O.C.G.A. § 42-8-38). England v. Newton, 238 Ga. 534, 233 S.E.2d 787 (1977).

When, after the original suspended sentence in a bastardy proceeding was entered in 1968, the court held a hearing in 1974 and ordered child support payments to include medical bills, and certain arrearage caught up as conditions of probation, and a second post-sentence hearing was held in 1978, at a time when the defendant was not in arrears under either of the prior orders, the purpose of the hearing being for reconsideration of the terms of the defendant's suspended sentence, after which the defendant's weekly payments were increased from $12.50 to $25.00, the effect was to increase the terms of the sentence originally passed and as such it was illegal. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

- One serving sentence on probation is fulfilling sentence as effectually as if confined in jail or on chain gang, and accordingly, if after a hearing the order granting such probation is revoked, the time served by the defendant before the revocation must be counted in the defendant's favor and deducted from the period of service imposed. Roper v. Mallard, 193 Ga. 684, 19 S.E.2d 525 (1942).

- Judge imposing sentence is granted power to suspend or probate the sentence under such rules and regulations as the judge thinks proper. Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951).

Judge has the right and authority to revoke the suspension or probation, after notice and a hearing, when the defendant violates any of the rules and regulations prescribed by the court. Simmons v. State, 96 Ga. App. 718, 101 S.E.2d 111 (1957).

- When a probation sentence is given, the trial judge is without authority to reserve the right to revoke the sentence without notice or hearing. Balkcom v. Gunn, 206 Ga. 167, 56 S.E.2d 482 (1949).

Judge has the right and authority to revoke suspension or probation, after notice and a hearing, when the defendant violates any of the rules and regulations prescribed by the court. Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951).

- When no rules or regulations are prescribed, and no violation of a prescribed rule or regulation is alleged, the court is without authority to order the defendant incarcerated upon the theory that one has violated the terms and conditions of a probation sentence. Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951); Simmons v. State, 96 Ga. App. 718, 101 S.E.2d 111 (1957).

- Probationer has right to notice and hearing upon question of revocation, and an order of revocation without a hearing is void. Roberts v. Lowry, 160 Ga. 494, 128 S.E. 746 (1925).

- It was general practice in Georgia for a warrant to be issued by a court on a written petition calling to the court's attention the alleged delinquency of a probationer, but the only requirement was that the defendant receive "due examination," which means that the defendant be given notice and an opportunity to be heard, and there being no requirement that the proceeding be initiated by written petition of the solicitor general (now district attorney), technical defects in such a petition when filed would not vitiate the warrant issued by the court or subsequent proceedings thereon, provided the requirements of notice and opportunity to be heard are complied with. Jackson v. State, 91 Ga. App. 291, 85 S.E.2d 444 (1954), overruled on other grounds, Jackson v. Jones, 254 Ga. 127, 327 S.E.2d 206 (1985).

- To deprive a defendant of the defendant's liberty upon the theory that the defendant has violated any of the rules and regulations prescribed in a suspended or probated sentence without giving the defendant notice and opportunity to be heard upon the question of whether or not the defendant has violated such rules and regulations, would violate one of the fundamental tenets that a person shall not be deprived of the defendant's liberty without due process of law, which includes notice and an opportunity to be heard. Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402 (1951).

- When, after due examination, the court revokes the court's order to the probationer to serve the remainder of the probationer's sentence outside the confines of the chain gang, jail, or other place of detention, Court of Appeals will not interfere unless a manifest abuse of discretion on the part of the lower court appears. Brown v. State, 71 Ga. App. 303, 30 S.E.2d 783 (1944).

Court of Appeals will not interfere unless a manifest abuse of discretion appears. Waters v. State, 80 Ga. App. 104, 55 S.E.2d 677 (1949); Bryant v. State, 89 Ga. App. 891, 81 S.E.2d 556 (1954).

- Discretion of the judge in revoking probation will not be interfered with unless grossly abused. Olsen v. State, 21 Ga. App. 795, 95 S.E. 269 (1918); Towns v. State, 25 Ga. App. 419, 103 S.E. 724 (1920).

Judge is the trier of the facts in a case for the revocation of probation and has very wide discretion and unless a manifest abuse of such discretion on the part of the lower court appears, the appellate court will not interfere. Alewine v. State, 79 Ga. App. 779, 54 S.E.2d 507 (1949).

Leaving jurisdiction of court is ground for revocation. See Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520 (1918).

- Degree of evidence necessary to convict in a criminal case being that which convinces the jury of the guilt of the defendant beyond a reasonable doubt, and the degree necessary to support the revocation of a probation sentence being only some evidence that the defendant has violated the conditions of the probation, which satisfies the trial court hearing the case in the exercise of a very wide discretion - it is not necessary to show that the defendant has been convicted of the act constituting the condition of the probation; the sole issue before the trial court is that of whether or not the defendant has committed the act. Bryant v. State, 89 Ga. App. 891, 81 S.E.2d 556 (1954).

- Violation of the conditions of probation must be established with reasonable certainty so as to satisfy the conscience of the court of the truth of the violation. It does not have to be established beyond a reasonable doubt. In such a hearing if the evidence inclines a reasonable and impartial mind to the belief that the defendant violated the terms of the defendant's probation, it is sufficient. Sparks v. State, 77 Ga. App. 22, 47 S.E.2d 678 (1948).

- It is not the record of conviction, but the fact of guilt of violation of a condition of probation, which determines whether probation should be revoked, and in determining this question 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 trier of the facts, and the judge has a very wide discretion. Bryant v. State, 89 Ga. App. 891, 81 S.E.2d 556 (1954).

- It is not improper for the trial judge to issue an order or warrant for the arrest of the probationer and to conduct the proceeding personally. Waters v. State, 80 Ga. App. 104, 55 S.E.2d 677 (1949).

- When a probationer is arrested on an order of the trial court directing that the probationer be placed in custody until a given date and then brought before the court for examination to determine the issue of whether or not the probationer's probation shall be revoked, and such probationer is brought before the court under arrest at the time and place specified, and counsel for the probationer also appears and represents the probationer at the hearing, it will be presumed that the probationer had proper notice and ample opportunity to be heard, it not appearing that counsel made any motion for a continuance to allow additional time to prepare the defense. Waters v. State, 80 Ga. App. 104, 55 S.E.2d 677 (1949).

- Under the provisions of former Code 1933, § 27-2705, the examination of the defendant to determine whether the defendant has violated the conditions of the defendant's probation is conducted by the court without a jury, and the quantum of evidence necessary to convince the court that a criminal act authorizing revocation has been committed is different from that on a trial of the defendant for such offense under an indictment charging the defendant therewith. Price v. State, 91 Ga. App. 381, 85 S.E.2d 627 (1955).

- While probation is matter of grace, probationer is entitled to fair treatment and not to be made the victim of baseless impression or caprice. Sparks v. State, 77 Ga. App. 22, 47 S.E.2d 678 (1948).

- To deprive a defendant of the defendant's liberty upon the theory that the defendant has violated rules and regulations prescribed in the defendant's sentence, when no rules, regulations, conditions, limitations, or restrictions were imposed by such sentence, would deprive the defendant of "due process of law." Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951).

- When sentence on charge of abandonment did not specify whether payments required were in the nature of fine or as payments for the support of the defendant's child or children, and failed to specify where or to whom the payments were to be made, this provision of the sentence was too vague and indefinite to be enforceable, and a revocation of the probation sentence solely on the ground that the defendant did not make the payments specified was without authority of law. Guest v. State, 87 Ga. App. 184, 73 S.E.2d 218 (1952).

- Sentence which is, in its entirety, ambiguous and doubtful should be given that construction which favors the liberty of the individual; sentences in criminal cases to be strictly construed, and, on a hearing of an issue made by motion to revoke a probation sentence on the theory that certain rules and regulations prescribed therein have been violated, it must appear that the rules were in fact prescribed with definiteness and certainty in the sentence, and that there has been an infraction thereof, since to deprive the prisoner of the defendant's liberty otherwise would be a violation of due process. Guest v. State, 87 Ga. App. 184, 73 S.E.2d 218 (1952).

- Since the original probation was void, it was not error to refuse to discharge defendant upon writ of habeas corpus. Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520 (1918); Roberts v. Lowry, 160 Ga. 494, 128 S.E. 746 (1925).

- Order revoking probationer's parole was not such a final judgment as was subject to review under Art. 2, Ch. 6, T. 5. Antonopoulas v. State, 151 Ga. 466, 107 S.E. 156 (1921); Troup v. State, 27 Ga. App. 636, 109 S.E. 681 (1921); Jackson v. State, 27 Ga. App. 648, 110 S.E. 423 (1921).

OPINIONS OF THE ATTORNEY GENERAL

Affidavit required for arrest of probation violator.

- Valid warrant for arrest of probation violator must be accompanied by affidavit, and to be valid, the affidavit must be sworn to under oath and signed by affiant. 1981 Op. Att'y Gen. No. 81-99.

- If a probation violator is arrested without a warrant, it would be incumbent upon the probation supervisor or other arresting officer to procure a warrant within the 48-hour period of time specified in O.C.G.A. § 17-4-62. 1988 Op. Att'y Gen. No. U88-14.

- Affiant need not have personal knowledge of information to which the affiant swears when executing affidavit for arrest of probation violator. 1981 Op. Att'y Gen. No. 81-99.

- Probation violator may be returned to sentencing court for hearing or the violator may have hearing in court of equivalent original criminal jurisdiction within county wherein probationer resides for purposes of supervision upon the giving of ten days' written notice to the sentencing court prior to the hearing on the merits. 1965-66 Op. Att'y Gen. No. 66-257.

- This offense is one for which those charged with a violation are to be fingerprinted. 1996 Op. Att'y Gen. No. 96-17.

Offense under O.C.G.A. § 42-8-38 requires fingerprinting only in those instances in which an adverse action is taken against the probationer such that the adverse action actually alters the terms of his or her probation. 1998 Op. Att'y Gen. No. 98-20.

- Only the circuit imposing first offender probation may revoke that period of probation, even though supervision has been transferred to another judicial circuit. 1980 Op. Att'y Gen. No. 80-79.

- Probated sentence may be revoked if the sentence being revoked is in effect and being served at the time the order of revocation is made, even if the act constituting the violation was committed prior to the commencement of service of the probated sentence; provided that the violation was committed subsequent to the imposition of sentence. 1974 Op. Att'y Gen. No. U74-107.

- Once a court revokes probation and orders serving of sentence, the clerk sends notice to Board of Offender Rehabilitation (Corrections) and the state has an obligation to accept such persons into the state penal system. 1982 Op. Att'y Gen. No. 82-33.

- Upon proper court order, the probation officers would be authorized to collect funds made payable in connection with suspended sentences. 1963-65 Op. Att'y Gen. p. 4.

- Issuance of warrant against person serving probated sentence does not stop running of time of the probated sentence; if probated sentence is revoked pursuant to the provisions for a hearing and judicial determination as set forth by this section, then the length of time to be served on the original sentence shall be time of sentence remaining after deduction is made for time which the probationer served under probation. 1967 Op. Att'y Gen. No. 67-391.

- Upon revocation of probated sentence, offender cannot be returned to confinement for period of time in excess of original probationary period. 1974 Op. Att'y Gen. No. U74-107.

- This section does not mean that in every case when probation is revoked, without more, the prisoner is not to receive credit for the time served outside the confines of the jail or prison, but it was the intention of the General Assembly that the judge revoking probation have the power to either give or deny such credit; it, therefore, is necessary to refer to the language of the order revoking probation. 1957 Op. Att'y Gen. p. 201.

- After revocation of probated sentence, in determining remaining balance of the sentence, the defendant is credited with the time on probation; however, to prevent the defendant from receiving double credit for this time, jail time credit should not be awarded toward the period of confinement ordered after revocation of a probated sentence. 1973 Op. Att'y Gen. No. 73-1.

- When order revoking probation is ambiguous with respect to whether prisoner should or should not receive credit for time served outside prison, it would be necessary to give credit for such time, under the rulings that an order of probation, and the order revoking the probation, is a part of the sentence and in cases of ambiguity, a sentence is to be construed so as to give the benefit of the doubt to the accused. 1957 Op. Att'y Gen. p. 201.

- For discussion of the effect of Stephens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980), which decided whether, upon revocation of probation entered under the terms of the First Offender Act, O.C.G.A. § 42-8-60, a criminal defendant was entitled to credit for time already spent on first offender probation, see 1983 Op. Att'y Gen. No. 83-6.

- Probated sentence preceded by term of imprisonment begins upon offender's fulfillment, including parole supervision, of the imprisonment obligation. 1974 Op. Att'y Gen. No. U74-107.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 526-536.

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

- Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.

Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.

Propriety of revocation of probation for subsequent criminal conviction which is subject to appeal, 76 A.L.R.3d 588.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 77 A.L.R.3d 636.

Admissibility, in state probation revocation proceedings, of incriminating statement obtained in violation of Miranda rule, 77 A.L.R.3d 669.

Right of defendant sentenced after revocation of probation to credit for jail time served as a condition of probation, 99 A.L.R.3d 781.

Admissibility of hearsay evidence in probation revocation hearings, 11 A.L.R.4th 999.

Power of court, after expiration of probation term, to revoke or modify probation for violations committed during the probation term, 13 A.L.R.4th 1240.

Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 A.L.R.4th 755.

Defendant's right to credit for time spent in halfway house, rehabilitation center, or other restrictive environment as condition of probation, 24 A.L.R.4th 789.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.