BARNETT v. THE STATE
A89A2074
Court of Appeals of Georgia
MARCH 15, 1990
194 Ga. App. 892 | 392 S.E.2d 322
Under the bylaws, the chairman of the judicial review committee is given a brоad discretion in the conduct of the hearing, including construction of the bylaws and determination of evidentiary questions. It is explicitly рrovided that “[t]he hearing shall not be conducted according to rules of law relating to the examination of witnesses or prеsentation of evidence.” Accordingly, plaintiff‘s various contentions as to evidentiary rulings by the chairman present nothing for review.
Plaintiff was permitted to respond on a point-by-point basis to the grounds stated for his termination. He presented his own testimony, which inсidentally, repeatedly conceded significant errors in his performance of his duties at the hospital. The testimony of the one witness offered by plaintiff was admitted, and plaintiff was permitted some cross-examination of a representative of thе residency committee, although such was limited to some degree by the chairman of the judicial review committee. The chаirman of the judicial review committee also determined that under the bylaws the burden of proof rested upon plaintiff and the сommittee determined that plaintiff failed to satisfy his burden of proof.
We conclude that the procedure afforded plaintiff was in substantial compliance with the provisions of defendant‘s bylaws. The superior court did not err in granting defendant‘s motion for summary judgment.
Judgment affirmed. Carley, C. J., and Beasley, J., concur.
DECIDED MARCH 15, 1990.
Novy & Jaymes, Eugene Novy, R. Craig Henderson, for appellant.
Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Pat M. Anagnostakis, for appellee.
BARNETT v. THE STATE.
(392 SE2d 322)
MCMURRAY, Presiding Judge.
The State brought this probation revocation proceeding against defendant alleging he violated the terms and conditions of his probation in a number of particulars. Specifically, it was alleged that defendant violated the rules of the Athens Diversiоn Center (“ADC“) as
With regard to a majority of the allegations set forth in the petition, the only evidence introduced by the State was hеarsay evidence. Although jurisdictions differ, see Annot., Admissibility of Hearsay Evidence in Probation Revocation Hearings, 11 ALR 4th 999 (1982), in this jurisdiction hearsаy evidence is inadmissible in a probation revocation proceeding. See Holbrook v. State, 162 Ga. App. 400, 402 (2) (291 SE2d 729). See generally Yarber v. State, 162 Ga. App. 475 (291 SE2d 780); Bradshaw v. State, 163 Ga. App. 819, 821 (3) (296 SE2d 119).
Of course, hearsay evidence is without probative value. Collins v. State, 146 Ga. App. 857 (1), 860 (247 SE2d 602). Thus, such evidence is incapable of suрporting a trial court‘s findings whether or not objection was lodged.
In relying upon hearsay evidence to support the majority of its findings in the case sub judice, the trial court erred. See Mills v. Bing, 181 Ga. App. 475, 477 (2) (352 SE2d 798). However, inasmuch as some of the allegations in the petition were supported by probative evidence (e.g., the failure to submit to a urine test on May 16, 1989, and the disorderly conduct on May 17, 1989), it cannot be said the trial court erred in modifying defendant‘s probation. See Allen v. State, 172 Ga. App. 323 (323 SE2d 242).
Judgment affirmed. Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope and Coоper, JJ., concur. Beasley, J., dissents.
BEASLEY, Judge, dissenting.
I dissent because, based on the ruling that the court took into account inadmissible evidence in determining to revoke probation and in fashioning a modified sentence, the case should be remanded for the trial court‘s reconsideration of the modified sentence. Since this court cannot substitute its judgment for that of a trial court in determining what is an aрpropriate sentence when a defendant has violated probation, it cannot assume that the court would have sеt the
Appellant had originally negotiated pleas of guilty to entering an auto and theft by taking of an auto. He had been sentenced to serve three years, to be followed by five years of probation with certain conditions. After imprisonment, probatiоn was started but was revoked and appellant was sent to the local diversion center. Alleged violations in that environment brought another revocation hearing, and we have now ruled that “a majority of the allegations” were inadequately provеn. Thus the modification of sentence must be based on the failure to submit to a urine test and an instance of disorderly conduct the nеxt day; allegations concerning employment and a staff member‘s order remain unproven and are not to be taken into account. Whether the appropriate disposition for the properly established violations is to be the same, i.e., 120 dаys at the detention center and then residence at a different diversion center, is problematic. The decision is up to thе sentencing court, to be reached after a consideration of the proved violations which were proved, the circumstances presented, and the available resources.
By affirming without an opportunity for the trial court to exercise its own judgment to tailor the sentence to fit the proved allegations of misbehavior, this court usurps the trial court‘s function.
Allen v. State, 172 Ga. App. 323 (323 SE2d 242) (1984), is distinguishable, at least in that the trial court revoked Allen‘s probation altogether. In this case the court continued defendant on probation and transferred him to a cеrtain detention center for 120 days, with the balance of the sentence remaining in accordance with the original sentenсe as previously modified, except that his next residence following the detention center was to be a different and pаrticular diversion center.
Also in Allen, the burden of proof of violation was only “slight evidence,” whereas now it is “preponderance of the evidence.”
DECIDED MARCH 15, 1990.
Kathleen J. Anderson, for appellant.
Harry N. Gordon, District Attorney, for appellee.