Marks v. State
306 Ga. App. 824
| Ga. Ct. App. | 2010Background
- Marks pled guilty to two counts of aggravated stalking on 11/30/2009, receiving a five-year sentence with one year confinement (time served) and the remainder on probation; probation included no contact with the victim, and required domestic violence intervention and 96–132 hours of community service during Intensive Probation Supervision.
- A warrant issued 2/17/2010 after the ex-wife reported harassment; as of 3/3/2010, Marks had not started the DV program or any community service.
- Probation was revoked on 4/16/2010 by reducing two years of the probationary term; the reversal granted discretionary review due to insufficiency of the evidence to support the revocation.
- Probation revocation requires either admission of violation or proof by a preponderance of the evidence, and the reviewing court defers to the trial court absent manifest abuse of discretion.
- No-contact violation: the ex-wife testified Marks did not contact or visit her, but allegedly authored web postings; evidence did not show Marks intended or caused direct contact; postings may not constitute probationary contact.
- DV program and community service: program could not be completed within the probation period and no specific dates directed for completion; no evidence that completion was possible within the term; lack of a precise deadline undermined the revocation
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of a no-contact violation | Marks | Marks | Insufficient evidence |
| Whether there was sufficient evidence of failing to attend DV program or perform community service | Marks | Marks | Insufficient evidence |
Key Cases Cited
- Collins v. Bazan, 256 Ga.App. 164, 165(2), 568 S.E.2d 72 (2002) (Ga. Ct. App. 2002) (publication and discussion with third parties does not constitute contacting the person)
- Wright v. State, 232 Ga.App. 646, 647(1), 502 S.E.2d 756 (1998) (Ga. Ct. App. 1998) (defines contact as getting in touch with or communicating with the victim)
- Murden v. State, 258 Ga.App. 585, 586(1), 574 S.E.2d 657 (2002) (Ga. Ct. App. 2002) (indirect contacts include going to the workplace and asking for the victim)
- Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978) (Ga. Sup. Ct. 1978) (probation conditions lack of a definite payment deadline cannot justify revocation)
- Smith v. State, 283 Ga.App. 317, 318, 641 S.E.2d 296 (2007) (Ga. Ct. App. 2007) (hearsay evidence insufficient in probation revocation)