probation properly revoked on same evidence on which jury found defendant not guilty of criminal charge
How later courts described this case
- probation properly revoked on same evidence on which jury found defendant not guilty of criminal charge
- probation properly revoked on same evidence on which jury acquitted defendant of criminal charge
- revocation upheld even though defendant was acquitted of same offense in criminal proceeding
Written by the judges who cited it.
The opinion
*128 Quillian, Presiding Judge,
dissenting.
I dissent from that which is held in the majority opinion.
I agree with the majority opinion that prior to a defendant’s trial of a crime of which he was charged the quantum of evidence sufficient to justify revocation of probation is less than that which is necessary to sustain a conviction. I also agree that it is not necessary for the defendant to have been tried and convicted of the criminal charge which is the act on which the probation revocation is based. However, these are not the questions which are now before this court.
In the case sub judice the defendant had been tried and acquitted of the commission of the crime upon which the revocation was based. I cannot agree that where there has been a legal determination by a verdict of the jury that the defendant was innocent of the crime of which he had been charged, the court could subsequently revoke his probation on the ground that there was evidence that he had committed the very crime for which he had just stood trial and was found not guilty.
In United States v. Clanton, 419 F2d 1304, cited by the majority, the charges against the defendant had been dismissed. This is completely different from a case where the defendant was tried and found not guilty.
Furthermore, even if it were not distinguishable, that case is not binding on this court.