probation revocation hearing in Georgia

2022“The United States Supreme Court has recognized that ‘the loss of liberty entailed by a probation revocation proceeding is a serious deprivation requiring that the probationer be accorded due process.’ Gagnon v. Scarpelli, 411 U. S. 778, 781 (II) ( 93 SCt 1756 , 36 LE2d 656) (1973).” Meadows v. Settles, 274 Ga. 858, 860 (3) 1 This does not mean that an accountability court termination proceeding is analogous to a probation revocation hearing in every respect or under every set of circumstances.

2022“The United States Supreme Court has recognized that ‘the loss of liberty entailed by a probation revocation proceeding is a serious deprivation requiring that the probationer be accorded due process.’ Gagnon v. Scarpelli, 411 U. S. 778, 781 (II) ( 93 SCt 1756 , 36 LE2d 656) (1973).” Meadows v. Settles, 274 Ga. 858, 860 (3) 1 This does not mean that an accountability court termination proceeding is analogous to a probation revocation hearing in every respect or under every set of circumstances.

2020App. 151, 154 (1), n.3 ( 834 SE2d 291 ) (2019). 7 While the State relies upon Wolcott v. State, 278 Ga. 664 ( 604 SE2d 478 ) (2004), to assert that Elrod had no right to counsel in the probation revocation hearing, that case holds only that a probationer has no Sixth Amendment right to counsel in a probation revocation hearing.

2020App. 151, 154 (1), n.3 ( 834 SE2d 291 ) (2019). 7 While the State relies upon Wolcott v. State, 278 Ga. 664 ( 604 SE2d 478 ) (2004), to assert that Elrod had no right to counsel in the probation revocation hearing, that case holds only that a probationer has no Sixth Amendment right to counsel in a probation revocation hearing.

2011See Meadows v. Settles, 274 Ga. 858, 859 (2), 561 S.E.2d 105 (2002); Johnson v. State, 214 Ga. 818, 819 , 108 S.E.2d 313 (1959); Howard v. State, 168 Ga.App. 143, 144 (2), 308 S.E.2d 424 (1983).

2011See Meadows v. Settles, 274 Ga. 858, 859 (2), 561 S.E.2d 105 (2002); Johnson v. State, 214 Ga. 818, 819 , 108 S.E.2d 313 (1959); Howard v. State, 168 Ga.App. 143, 144 (2), 308 S.E.2d 424 (1983).

2024The “minimum requirements of due process include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation).” (Citation and emphasis omitted.) Id.2 Thus, the probationer must make some 2 See also Morrisey v. Brewer, 408 U. S. 471, 489 (III) (b) ( 92 SCt 2593 , 33 LE2d 484) (1972) (minimum requirements of due process owed to parolees include the right to confront adverse witnesses unless the hearing officer finds good cause for not allowing such); Gagnon v. Scarpelli, 411 U. S. 778, 781-782 (II) ( 93 SC

2024The “minimum requirements of due process include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation).” (Citation and emphasis omitted.) Id.2 Thus, the probationer must make some 2 See also Morrisey v. Brewer, 408 U. S. 471, 489 (III) (b) ( 92 SCt 2593 , 33 LE2d 484) (1972) (minimum requirements of due process owed to parolees include the right to confront adverse witnesses unless the hearing officer finds good cause for not allowing such); Gagnon v. Scarpelli, 411 U. S. 778, 781-782 (II) ( 93 SC

2022“The United States Supreme Court has recognized that ‘the loss of liberty entailed by a probation revocation proceeding is a serious deprivation requiring that the probationer be accorded due process.’ Gagnon v. Scarpelli, 411 U. S. 778, 781 (II) ( 93 SCt 1756 , 36 LE2d 656) (1973).” Meadows v. Settles, 274 Ga. 858, 860 (3) 1 This does not mean that an accountability court termination proceeding is analogous to a probation revocation hearing in every respect or under every set of circumstances.

2011See Meadows v. Settles, 274 Ga. 858, 859 (2), 561 S.E.2d 105 (2002); Johnson v. State, 214 Ga. 818, 819 , 108 S.E.2d 313 (1959); Howard v. State, 168 Ga.App. 143, 144 (2), 308 S.E.2d 424 (1983).

2020Id.; see also Edison v. State, 256 Ga. 67, 68 (3) ( 344 SE2d 231 ) (1986) (“A defendant who testifies on his behalf waives his privilege against self-incrimination to the extent of that testimony.”).

2020Id.; see also Edison v. State, 256 Ga. 67, 68 (3) ( 344 SE2d 231 ) (1986) (“A defendant who testifies on his behalf waives his privilege against self-incrimination to the extent of that testimony.”).

2014Wolcott v. State, 278 Ga. 664, 667 (2) ( 604 SE2d 478 ) (2004); Bickel v. State, 323 Ga. App. 902, 903 ( 749 SE2d 1 ) (2013); Dillard v. State, 319 Ga. App. 299, 300 ( 735 SE2d 297 ) (2012).

2014Wolcott v. State, 278 Ga. 664, 667 (2) ( 604 SE2d 478 ) (2004); Bickel v. State, 323 Ga. App. 902, 903 ( 749 SE2d 1 ) (2013); Dillard v. State, 319 Ga. App. 299, 300 ( 735 SE2d 297 ) (2012).

2014Wolcott v. State, 278 Ga. 664, 667 (2) ( 604 SE2d 478 ) (2004); Bickel v. State, 323 Ga. App. 902, 903 ( 749 SE2d 1 ) (2013); Dillard v. State, 319 Ga. App. 299, 300 ( 735 SE2d 297 ) (2012).

2014Wolcott v. State, 278 Ga. 664, 667 (2) ( 604 SE2d 478 ) (2004); Bickel v. State, 323 Ga. App. 902, 903 ( 749 SE2d 1 ) (2013); Dillard v. State, 319 Ga. App. 299, 300 ( 735 SE2d 297 ) (2012).

2012Prior to the enactment of that statute, the right to counsel in such proceedings was not absolute.” (Citations omitted.) Miller v. State, 301 Ga. App. 706, 709 (1) ( 689 SE2d 46 ) (2009), vacated on other grounds, 288 Ga. 153 ( 702 SE2d 137 ) (2010).

2012Prior to the enactment of that statute, the right to counsel in such proceedings was not absolute.” (Citations omitted.) Miller v. State, 301 Ga. App. 706, 709 (1) ( 689 SE2d 46 ) (2009), vacated on other grounds, 288 Ga. 153 ( 702 SE2d 137 ) (2010).

2024The “minimum requirements of due process include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation).” (Citation and emphasis omitted.) Id.2 Thus, the probationer must make some 2 See also Morrisey v. Brewer, 408 U. S. 471, 489 (III) (b) ( 92 SCt 2593 , 33 LE2d 484) (1972) (minimum requirements of due process owed to parolees include the right to confront adverse witnesses unless the hearing officer finds good cause for not allowing such); Gagnon v. Scarpelli, 411 U. S. 778, 781-782 (II) ( 93 SC

2024The “minimum requirements of due process include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation).” (Citation and emphasis omitted.) Id.2 Thus, the probationer must make some 2 See also Morrisey v. Brewer, 408 U. S. 471, 489 (III) (b) ( 92 SCt 2593 , 33 LE2d 484) (1972) (minimum requirements of due process owed to parolees include the right to confront adverse witnesses unless the hearing officer finds good cause for not allowing such); Gagnon v. Scarpelli, 411 U. S. 778, 781-782 (II) ( 93 SC

1999This Court has held that due process in probation revocation proceedings does not require both a pre *555 liminary and a final hearing “where all requirements of due process can be afforded in a single hearing procedure.” McElroy v. State, 247 Ga. 355, 358 ( 276 SE2d 38 ) (1981).

1983Appellant would have us overrule or ignore the Supreme Court’s decision in McElroy v. State, 247 Ga. 355 ( 276 SE2d 38 ), and interpret OCGA § 42-8-38 (Code Ann. § 27-2713) as contemplating a bifurcated procedure for revocation of probation.

1976In both Reece and Mercer there were strong dissents which relied upon the U. S. Supreme Court ruling in Mempa v. Rhay, 389 U. S. 128 (88 SC 254, 19 LE2d 336) (1967) and Gagnon v. Scarpelli, 411 U. S. 778 (93 SC 1756, 36 LE2d 665) (1972).

1975Since the 1967 case of Mempa v. Rhay, 389 U. S. 128, 134 (88 SC 254, 19 LE2d 336), the federal courts and state courts have taken various views of what the Supreme Court meant in stating that counsel is required "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” It is apparent from the testimony given at the habeas corpus hearing that appellant was operating under a handicap with respect to his inability to examine the witnesses who testified against him at the probation revocation hearing.

2025It is true that, generally, “[i]f there is no constitutional, statutory, or public policy prohibition against waiver, an accused may validly waive any right.” Thomas v. State, 260 Ga. 262, 263 (1990).

2024“In terms of the sufficiency of the evidence, this Court will affirm the judgment of revocation if the record includes some competent evidence to show that the defendant violated the terms of his probation in the specific manner charged, notice of which must be provided in writing before the probation revocation hearing.” Caldwell v. State, 327 Ga. App. 471, 472 ( 758 SE2d 325 ) (2014).

2024We agree. 1 See Bell v. Austin, 278 Ga. 844, 844 (1) (a) ( 607 SE2d 569 ) (2005) (“unsworn statements are not treated as amounting to any evidence, except in specified cases from necessity”) (citation and punctuation omitted). 5 The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Under the Confrontation Clause, testimonial hearsay is admissible against a criminal defendant only when (a) witness is unavailable to testify and (b) the defendant

2024We agree. 1 See Bell v. Austin, 278 Ga. 844, 844 (1) (a) ( 607 SE2d 569 ) (2005) (“unsworn statements are not treated as amounting to any evidence, except in specified cases from necessity”) (citation and punctuation omitted). 5 The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Under the Confrontation Clause, testimonial hearsay is admissible against a criminal defendant only when (a) witness is unavailable to testify and (b) the defendant

2023In our review of a statute we must “construe a statute according to its own terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” Kinslow v. State, 311 Ga. 768, 771 ( 860 SE2d 444 ) (2021) (citation and punctuation omitted).

2023In our review of a statute we must “construe a statute according to its own terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” Kinslow v. State, 311 Ga. 768, 771 ( 860 SE2d 444 ) (2021) (citation and punctuation omitted).

2023Stallings v. Sparks, 314 Ga. App. 216, 217 ( 723 SE2d 514 ) (2012).

2023Stallings v. Sparks, 314 Ga. App. 216, 217 ( 723 SE2d 514 ) (2012).

2022Compare Wilkinson v. State, 283 Ga. App. 213 (1) ( 641 SE2d 189 ) (2006) (finding termination of a defendant’s participation in a drug court program under OCGA § 16-3-2 to be analogous to the revocation of probation or first offender status for the purpose of determining the state’s burden of proof) with Oliver v. State, 305 Ga. App. 779 n. 1 ( 700 SE2d 861 ) (2010) (holding that an order enforcing the portion of a sentence that had been suspended while a defendant was in a drug treatment program was not the equivalent of a probation revocation and so was not subject to the discretionary appea

2022Compare Wilkinson v. State, 283 Ga. App. 213 (1) ( 641 SE2d 189 ) (2006) (finding termination of a defendant’s participation in a drug court program under OCGA § 16-3-2 to be analogous to the revocation of probation or first offender status for the purpose of determining the state’s burden of proof) with Oliver v. State, 305 Ga. App. 779 n. 1 ( 700 SE2d 861 ) (2010) (holding that an order enforcing the portion of a sentence that had been suspended while a defendant was in a drug treatment program was not the equivalent of a probation revocation and so was not subject to the discretionary appea

2022See Williams v. Lawrence, 273 Ga. 295, 298 ( 540 SE2d 599 ) (2001) (“Evidence that would violate the Sixth Amendment or would be inadmissible hearsay if presented at a criminal trial may, in proper circumstances, be considered at a parole or probation revocation hearing without violating the due process right to confrontation.”) (citation and punctuation omitted). “[T]he minimum requirements of due process include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation).” (Citation and punctuation om

2022See Williams v. Lawrence, 273 Ga. 295, 298 ( 540 SE2d 599 ) (2001) (“Evidence that would violate the Sixth Amendment or would be inadmissible hearsay if presented at a criminal trial may, in proper circumstances, be considered at a parole or probation revocation hearing without violating the due process right to confrontation.”) (citation and punctuation omitted). “[T]he minimum requirements of due process include the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation).” (Citation and punctuation om

2022Compare Wilkinson v. State, 283 Ga. App. 213 (1) ( 641 SE2d 189 ) (2006) (finding termination of a defendant’s participation in a drug court program under OCGA § 16-3-2 to be analogous to the revocation of probation or first offender status for the purpose of determining the state’s burden of proof) with Oliver v. State, 305 Ga. App. 779 n. 1 ( 700 SE2d 861 ) (2010) (holding that an order enforcing the portion of a sentence that had been suspended while a defendant was in a drug treatment program was not the equivalent of a probation revocation and so was not subject to the discretionary appea

2022Compare Wilkinson v. State, 283 Ga. App. 213 (1) ( 641 SE2d 189 ) (2006) (finding termination of a defendant’s participation in a drug court program under OCGA § 16-3-2 to be analogous to the revocation of probation or first offender status for the purpose of determining the state’s burden of proof) with Oliver v. State, 305 Ga. App. 779 n. 1 ( 700 SE2d 861 ) (2010) (holding that an order enforcing the portion of a sentence that had been suspended while a defendant was in a drug treatment program was not the equivalent of a probation revocation and so was not subject to the discretionary appea

2022Ponder v. State, 341 Ga. App. 276, 278 (1) ( 800 SE2d 19 ) (2017).

2022Ponder v. State, 341 Ga. App. 276, 278 (1) ( 800 SE2d 19 ) (2017).

2021Compare Mays v. State, 336 Ga. App. 398, 402-404 (785 SE2d 408) (2016) (holding that the defendant was in custody under Miranda where a GBI agent questioned her in jail a week after she had been arrested for violating the terms of her probation, including by failing to complete community service, which was the main focus of the agent’s questions; the defendant was scheduled to appear in court for a probation revocation hearing less than a week after the interview; the agent did not tell the defendant she was free to leave until about 15 minutes into the 23-minute interview; and it was not clea

2021Compare Mays v. State, 336 Ga. App. 398, 402-404 (785 SE2d 408) (2016) (holding that the defendant was in custody under Miranda where a GBI agent questioned her in jail a week after she had been arrested for violating the terms of her probation, including by failing to complete community service, which was the main focus of the agent’s questions; the defendant was scheduled to appear in court for a probation revocation hearing less than a week after the interview; the agent did not tell the defendant she was free to leave until about 15 minutes into the 23-minute interview; and it was not clea

2020Accordingly, the judgment of the habeas court is vacated, and the case remanded for such a determination.” (citations omitted)); Elrod, 354 Ga. App. at 183 (4) (“As neither judge reviewed the probation revocation hearing transcript, and we cannot determine from the record before us whether the proper guidelines were used to determine if [the appellant] had a right to counsel in that hearing, we vacate [the appellant’s] sentence and remand this case to the trial court to apply the factors set forth in Gagnon, based upon a review of the probation revocation hearing transcript, if it can be obtai

2020Accordingly, the judgment of the habeas court is vacated, and the case remanded for such a determination.” (citations omitted)); Elrod, 354 Ga. App. at 183 (4) (“As neither judge reviewed the probation revocation hearing transcript, and we cannot determine from the record before us whether the proper guidelines were used to determine if [the appellant] had a right to counsel in that hearing, we vacate [the appellant’s] sentence and remand this case to the trial court to apply the factors set forth in Gagnon, based upon a review of the probation revocation hearing transcript, if it can be obtai