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Harrison v. State

Court of Appeals of Georgia

January 30, 2015

HARRISON
v.
THE STATE

Revocation of probation. Columbia Superior Court. Before Judge Brown.

John M. Kraft, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

OPINION

Page 763

Andrews, Presiding Judge.

After the trial court granted the State's petition to revoke Richard Harrison's probation and revoked his probation in full for a period greater than eight years, this Court granted Harrison's application for discretionary appeal. Harrison argues on appeal that the trial court erred by revoking his probation for a period of time exceeding that authorized by OCGA § 42-8-34.1 (d) and by revoking his probation for behavior that did not violate a valid condition of probation. We conclude that under OCGA § 42-8-34.1 (d), the trial court was not authorized to revoke Harrison's probation for a period in excess of five years, and we therefore vacate the trial court's revocation order and remand for resentencing.

" 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." OCGA § 42-8-34.1 (b). " Generally, this court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. However, we review questions of law de novo." (Citations and punctuation omitted.) Dillard v. State, 319 Ga.App. 299 (735 S.E.2d 297) (2012).

The record shows that in January 2009, Harrison entered a plea of guilty under North Carolina v. Alford, 400 U.S. 25 (91 S.Ct. 160, 27 L.Ed.2d 162) (1970), to one count of child molestation. The trial court sentenced Harrison to five years incarceration and ten years probation. The trial court's sentence, filed January 5, 2009, contained a list of general conditions of probation, and a box appeared next to each condition so that

Page 764

the trial court could indicate with an " x" or some other mark which of the conditions applied. The first general condition on the list was that " [t]he defendant shall violate no laws of any governmental unit." The trial court did not mark that condition as applicable. On September 26, 2012, the trial court entered an order amending Harrison's probated sentence so that the conditions of probation included the general condition that he violate no laws of any governmental unit.

In March 2014, the State filed a petition to revoke Harrison's probation, alleging that Harrison violated the terms and conditions of probation by being arrested on or about February 26, 2014 for the new felony offense of theft by taking, as charged by the Columbia County Sheriff's Office, and by failing to pay court-ordered financial obligations. The State filed an addendum to the petition on April 14, 2014 alleging that Harrison violated the terms and conditions of probation [330 Ga.App. 571] by being arrested on or about February 26, 2014 for two counts of theft by taking and burglary, as charged by the Columbia County Sheriff's Office.

At the outset of the hearing on the revocation petition, the trial court recited the allegations in the petition and addendum and asked whether the allegations were admitted or denied. Harrison's counsel responded: " Judge, we would admit to the theft by taking count involving the theft of certain trailers. We deny the allegation that my client has committed burglary as a new offense. And we would also admit to failing to pay his financial obligations as directed." [1] The assistant district attorney then stated that in light of Harrison's admissions, she would concede for purposes of the hearing that she did not have sufficient evidence to prove burglary. Harrison's counsel then briefly described the circumstances surrounding the theft of the trailers, stating that Harrison took two trailers off of someone's property when he should have known he did not have the right to do so. One of the trailers was " homemade" and " put together with set parts," and the other was a manufactured trailer with " substantial value." Harrison testified and admitted to taking the trailers. He testified that he sold the homemade trailer as scrap for about $200. An officer with the Columbia County Sheriff's Office testified that Harrison sold the other trailer to a neighbor for $400 but that law enforcement was able to recover it.

Despite her concession that she could not prove burglary, the assistant district attorney cross-examined Harrison about that alleged offense. Harrison stated that he was helping his fiancé e move all of the furniture out of her father's home and that they took the hot water heater from the house because they noticed the lines had been cut and they were concerned someone was going to steal it. The Columbia County officer testified that the father of Harrison's fiancé e had stated that he told his daughter he did not approve of her relationship with Harrison and that she should not take anyone with her to his house, which was in foreclosure. The officer admitted that Harrison's fiancé e told him that she had asked Harrison to help her move items because he had a truck.

Following the hearing, the trial court entered an order revoking Harrison's probation in full for eight years, three months, and three days. The State's initial probation revocation petition was on a pre-printed form that included a space for the trial court to issue an order granting the petition. In the blank in which the trial court was [330 Ga.App. 572] to indicate the manner in which the terms and ...


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