State v. Michelle Huffman ( 2019 )

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 18, 2019
In the Court of Appeals of Georgia
A19A1601. THE STATE v. HUFFMAN. PH-054C
PHIPPS, Senior Appellate Judge.
On this discretionary appeal from the grant of Michelle Huffman’s motion to
dismiss the State’s petition to revoke her probation, the State argues that the court
erred because the petition gave Huffman adequate notice of the charges against her.
We agree and reverse.
The issue here is whether the probation revocation petition afforded Huffman
due process. We review this question of law de novo. See White v. State, 274 Ga.
App. 805, 805 (619 SE2d 333) (2005) (reviewing the question of “the legal effect of
an order” issued by the Board of Pardons and Paroles “de novo”).
The relevant facts are not in dispute. On March 1, 2018, after Huffman entered
negotiated guilty pleas to 3 counts of withholding information from a practitioner, she
was sentenced to 12 years on probation. On November 7, 2018, the State filed a
petition for modification/revocation of probation, alleging that Huffman had
committed the following violations:
VIOLATION 1: did commit the new felony offenses of Forgery-First
Degree and Theft by Deception, on or about August 10, 2018, in
Houston County, Georgia, in violation of a condition of probation.
VIOLATION 2: did fail to pay court ordered monies in that [Huffman]
has made no payments on fines, fees, or supervision fees, in violation of
a condition of probation.
A hearing on the State’s petition was held on November 15, 2018. There,
Huffman argued that the trial court should dismiss the revocation petition on due
process grounds because the State did not give proper notice as to the particulars of
each new offense listed in Violation 1 of the petition. Huffman contended that there
were multiple ways to commit the offenses of forgery and theft by deception and that
the State was required to give notice of how she violated the particular statutes at
issue in order for her to prepare an adequate defense. The State responded that a
revocation petition is not required to meet the same standards as an indictment. The
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trial court continued the matter to allow the State an opportunity to amend the
petition.
After the State declined to amend the petition, the trial court entered an order
granting Huffman’s motion to dismiss it. The court noted the Supreme Court of
Georgia’s decision in Wolcott v. State, 278 Ga. 664 (604 SE2d 478) (2004), which
held that a revocation petition comported with due process when it “set forth the
crime, the approximate date and the particular venue” of the probation violation, id.
at 667 (2), but distinguished Wolcott on the ground that the challenge was raised after
conviction and involved a single straightforward offense, whereas the State was
alleging here that Huffman committed forgery in the first degree and theft by
deception, both of which could be committed in multiple ways. The trial court
concluded that even though, having been arrested and charged regarding each of the
offenses, Huffman had actual knowledge of the State’s allegations, the petition was
inadequate as a matter of law because it “fail[ed] to allege the victim or the manner
in which the alleged crime was committed,” which affected Huffman’s “ability to
prepare a defense” and her “double jeopardy protection.” The court thus dismissed
the petition with prejudice, and we granted the State’s application for discretionary
review.
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As our Supreme Court has recently reminded us, “‘the requirements of due
process are flexible and call for such procedural protections as the particular situation
demands.’” Miller v. Deal, 295 Ga. 504, 510 (2) (761 SE2d 274) (2014), quoting
Wilkinson v. Austin, 545 U.S. 209, 224 (IV) (125 SCt 2384, 162 LE2d 174) (2005).
Specifically, a probation revocation is not a criminal prosecution and does not require
the extent of proof sufficient to sustain a conviction. Johnson v. State, 142 Ga. App.
124, 127 (2) (235 SE2d 550) (1977).
The situation before us is a probation revocation proceeding such that our
Supreme Court’s decision in Wolcott remains very much on point. That the crime of
forgery can be committed in more than one way is also true of the crime at issue in
Wolcott: aggravated assault may be committed with intent to murder, rape, or rob, or
(on the other hand) with a deadly weapon, which two alternatives require different
sets of facts as proof. See, e.g., Thomas v. State, 292 Ga. 429, 434 (5) (738 SE2d 571)
(2013) (declining to merge convictions for aggravated assault with intent to rob and
with a deadly weapon where each method of committing the crime required evidence
that the other did not, citing OCGA § 16-5-21 (a) (1), (2)). The holding of Wolcott is
that the revocation petition comported with due process because it “set forth the
crime, the approximate date and the particular venue,” Wolcott, 278 Ga. at 667 (2),
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just as this petition did. Although Huffman cites the Supreme Court’s recent decision
in Jackson v. State, 301 Ga. 137 (800 SE2d 356) (2017), which found an indictment
insufficient for due process purposes in light of its failure to either “set[] out all the
elements of the offense charged” or “allege the facts necessary to establish violation
of a criminal statute[,]” id. at 141 (1), we are bound to follow Wolcott in the context
of a probation revocation, and in the absence of any indication that Jackson or any
other decision of a higher court has changed the law in that context.
For these reasons, we conclude that the trial court erred when it granted
Huffman’s motion to dismiss the State’s petition to revoke her probation.
Judgment reversed. McFadden, C. J., and McMillian, P. J., concur.
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