Johnson v. State

Smith, Judge,

dissenting.

For two reasons I must dissent. First, I agree with the dissent in Dickerson v. State, 136 Ga. App. 885 ( 222 SE2d 649 ). See the addendum to Jackson v. State, 140 Ga. App. 659 ( 231 SE2d 554 ). Second, the peculiar facts of this case set it apart from the usual "run of the mill” probation revocation hearings.

Johnson, while serving a four year probation sentence imposed on July 16, 1973, was tried on a burglary indictment before a jury on June 28, 1976; he was found "not guilty.” Prior to the trial, on April 13, 1976, a petition for revocation of Johnson’s probation had *129 been filed. No action was taken on the petition until June 29, 1976, the day after Johnson had been acquitted of the burglary charge. On this date, the judge of the Clarke County Superior Court signed an order directing Johnson to show cause on July 2, 1976, why his probation should not be revoked. The petition for revocation, using language identical to the accusatory language in the burglary indictment, set out but one ground for revocation of the probation: the burglary. At the July 2 revocation hearing, the court noted in the record a stipulated agreement between the parties that "the transcript of the evidence offered at trial in indictment number 13615 in the Superior Court of Clarke County on Monday, June 28, 1976, constitutes the whole evidence on the issue of whether or not the defendant has violated the terms of probation contained in the sentence imposed on July 16,1973, as alleged in the Petition for Revocation of Probation.” (Emphasis supplied.)

Johnson’s 1973 sentence of probation contained six conditions; the only condition alleged by the revocation petition to have been violated was the command that he "not violate the criminal laws of any governmental unit during said period.” The law allegedly violated was Georgia’s burglary statute. But the jury found'that Johnson had not violated the statute. Thereafter, the superior court judge sitting as trier of fact at the revocation hearing found that Johnson had violated the statute, and the probation was revoked.

I think the court must be confined to the grounds set forth in the petition for revocation and, where the defendant has already been tried and acquitted, to allow the state cavalierly to wash away the verdict of twelve and impose a punishment based upon the same act is to pay nothing but lip service to the constitutional guarantees of a presumption of innocence and a trial by jury. To me, such a compromise of fundamental principles is intolerable. If a jury acquits the defendant but we nevertheless subject him to a penalty by indulging in the consolation that "he is guilty; we just couldn’t convince the jury,” then have we not turned our backs on the purpose and function of the jury? Likewise, a man is presumed innocent until proven guilty, but we allow the state one chance to rebut the *130 presumption with competent evidence. If the state succeeds, the defendant is forever "guilty”; if the state fails, the presumption is not rebutted and the defendant is "innocent.” Therefore, he is forever "innocent,” and how can we countenance an imposition of penalty based upon the defeated allegation? The state should not be allowed a double opportunity to prosecute the defendant.

There is nothing to be found in Johnson v. State, 214 Ga. 818 ( 108 SE2d 313 ) or the majority in Dickerson, supra, that conflicts with this dissent.

I would reverse the judgment.

I am authorized to state that Judge Webb joins in this dissent.