Ponder v. the State, 341 Ga. App. 276

Ponder pleaded guilty (July 8, 2015) to directing terroristic threats and received a five-year sentence, suspended on probation.
In March 2016, the State obtained a misdemeanor stalking arrest warrant and filed a petition to revoke probation alleging commission of misdemeanor stalking.
At the May 26, 2016 revocation hearing, Ponder was willing to stipulate to facts supporting misdemeanor stalking and argued the court lacked authority to send him to the state penitentiary on those facts.
The State advised the court it had since indicted Ponder for aggravated stalking (a felony); the revocation petition, however, did not allege the felony.
The trial court revoked Ponder’s probation for commission of a new felony and ordered two years to be served in the State Penal System; the Court of Appeals reversed and remanded.

Issue	Plaintiff's Argument (Ponder)	Defendant's Argument (State)	Held
Whether probation may be revoked based on an offense not alleged in the revocation petition	Revocation on a felony not alleged violated due process—Ponder lacked notice and opportunity to defend against that charge	The court may consider the subsequently filed indictment for aggravated stalking as justification for revocation	Reversed: revocation cannot be based on an offense not charged in the petition; defendant must have notice of the grounds for revocation
Whether the court could order revoked time to be served in the State Penal System	Ordering prison on the basis of misdemeanor stalking was unauthorized; Ponder argued statute limits confinement alternatives for non-felony revocations	State relied on the felony indictment to justify commitment to state prison	Reversed as to the sentence because the underlying revocation was invalid; no evidence at hearing of a felony or violent misdemeanor to justify state prison confinement

Bryson v. State, 228 Ga. App. 84 (1997) (filing of discretionary application acts as supersedeas and divests trial court of jurisdiction to alter order appealed)
Dillard v. State, 319 Ga. App. 299 (2012) (standard of review; general deference to revocation decisions)
Gray v. State, 313 Ga. App. 470 (2011) (revocation review principles)
Scott v. State, 305 Ga. App. 596 (2010) (revocation review principles)
White v. State, 274 Ga. App. 805 (2005) (questions of law reviewed de novo)
Jones v. State, 314 Ga. App. 442 (2012) (due process requires written notice of alleged probation violation; revocation must be on charged grounds)
Kitchens v. State, 234 Ga. App. 785 (1998) (revocation cannot be based on uncharged violation)