In January of 2000, Frank Wolcott pled guilty to charges of terroristic threats and criminal trespass set forth in one indictment, and to a count of burglary alleged in another. For each of the three crimes, he received first offender treatment and a probated sentence. Later that same year, the State initiated probation revocation proceedings against him as to both cases. Acting pro se, Wolcott entered into consent orders, whereby he admitted his alleged violation, and agreed to a four-month revocation of his probation to be followed by another probationary period. In September of 2003, the State again filed revocation petitions as to the two cases, alleging Wolcott’s recent commission of the offense of aggravated assault in DeKalb County. At the conclusion of the final revocation hearing, the trial court revoked probation in both of the underlying criminal cases. Wolcott sought permission to file a discretionary appeal. We granted the application because, among the other issues raised, there was a challenge to the constitutionality of OCGA § 42-8-29.
*665 1. The probation revocation petitions were filed by Valerie Clark, in her capacity as Wolcott’s probation supervisor. Although Ms. Clark is not a licensed attorney, she was exercising the authority conferred on her by OCGA § 42-8-29. Under that statute, she acted
as a State agent in the preparation and filing of the petition[s] for revocation of [his] probation. ... In acting as an agent for the State of Georgia assigned to handle matters relating to [Wolcott’s] probation, [Ms. Clark] was a “party” to the action, as contemplated under [OCGA § 15-19-52], As such, [her] filing of [the] petition[s] seeking a court hearing on the revocation of [Wolcott’s] probation does not entail the unauthorized practice of law, such as when a layman represents another, unrelated “person” in a legal capacity. [Cit.] Thus,.. . [Ms. Clark] was authorized to act on behalf of the State of Georgia in filling out the revocation petition[s].
Leverette v. State,
The statutory grant to probation supervisors of the authority to file revocation petitions does not conflict with
Eckles v. Atlanta Technology Group,
Wolcott urges that Ms. Clark’s filing of the petitions was nevertheless unauthorized because OCGA § 42-8-29 violates the constitutional principle of separation of powers. He argues that, since the statute permits Ms. Clark to act in a dual capacity as an agent for the State and as an officer of the court when she filed the petitions, the statute is an unconstitutional grant of authority to serve in both the executive and judicial branches of government. Art. I, Sec. II, Par. Ill of the Georgia Constitution of 1983 does provide that “no person discharging the duties of one [of the three branches of government] shall at the same time exercise the functions of either of the others . . . .” However, “separation of powers is not a rigid principle.”
Greer v. State of Ga.,
As a probation supervisor, Ms. Clark is an immediate employee of the Department of Corrections, which is a department in the executive branch of this state’s government. See OCGA § 42-2-1 et seq. See also
Stephens v. State,
[I]n maintaining such continued jurisdiction, the sentencing court is aided by probation [ary] officers, who serve “as an investigative and supervisory arm of the court” [cit.] by actually monitoring probationers and providing required reports. [Cit.]
Huzzie v. State,
supra at 227. Thus, not unlike a district attorney, Ms. Clark works for the executive branch of state government and is charged with providing the trial court with information relevant to pending criminal proceedings over which the court alone exercises judicial authority. See
In re Pending Cases, Augusta Judicial Circuit,
*667
2. “Due process requires that a defendant be given written notice of the claimed violation of his probation prior to the revocation hearing. [Cit.]”
Collins v. State,
Moreover, “[t]he inadequacy of a petition is not necessarily a basis for setting aside a revocation where the factual grounds are established at the hearing. [Cit.]”
Oliver v. State,
3. Pursuant to OCGA § 42-8-38 (b), the trial court conducted a commitment hearing and determined that probable cause existed. At the subsequent revocation hearing, the trial court indicated that it would consider testimony given by some of the State’s witnesses at the preliminary hearing. Wolcott urges that this was error.
Under OCGA § 24-3-10, testimony given at a commitment hearing may be admissible at a subsequent proceeding if the witness has since died, is disqualified or has become inaccessible for any cause. Here, however, no such showing was made so as to render the previous testimony admissible. In overruling Wolcott’s objection, the trial court merely observed that, at the end of the preliminary
*668
hearing, it had stated that there would be no need for the State to call the witnesses to testify at the future revocation hearing. However, a trial court does not have the authority to waive the applicability of the rules of evidence, and “in this jurisdiction hearsay evidence is inadmissible in a probation revocation proceeding. [Cits.]”
Barnett v. State,
Nevertheless, a review of the transcript of the revocation hearing shows that any inadmissible hearsay was merely cumulative of the admissible probative testimony which was sufficient to show by a preponderance of the evidence that Wolcott committed the offense of aggravated assault as alleged in the revocation petitions. Under these circumstances, the trial court’s erroneous evidentiary ruling was clearly harmless.
Bennett v. State,
4. Wolcott contends that the trial court erroneously gave consideration to the consent orders entered in connection with his previous probation revocations, because he was not represented by counsel in those prior proceedings.
A guilty plea obtained in violation of a defendant’s Sixth Amendment right to counsel cannot be used “either to support guilt or enhance punishment for another offense . . . .”
Burgett v. Texas,
Judgments affirmed.