Wolcott v. State , 278 Ga. 664 ( 2004 )

604 S.E.2d 478 (2004) 278 Ga. 664

WOLCOTT
v.
The STATE. (two cases)

No. S04A1590, S04A1591.

Supreme Court of Georgia.

October 25, 2004. Reconsideration Denied November 11, 2004.

Banks, Stubbs, Neville & Cunat, Rafe Banks III, Cumming, for appellant.

Philip C. Smith, District Attorney Penny A. Penn, Carlton T. Hayes, Thomas D. Lyles, Assistant District Attorneys, for appellee.

CARLEY, Justice.

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.

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, 248 Ga.App. 304, 305(1), 546 S.E.2d 63 (2001).

The statutory grant to probation supervisors of the authority to file revocation petitions does not conflict with Eckles v. Atlanta Technology Group, 267 Ga. 801, 806, 485 S.E.2d 22 (1997), since we expressly recognized that our holding in that case was limited to "[a] layman's legal representation in a court of record of another ``person' in the form of a separate corporate entity...." Thus, "the reasoning behind the holding in Eckles does not impact on a State agent's authority to petition the court on behalf of the State with regard to a matter within the scope of his or her employment." Leverette v. State, supra at 306(1), 546 S.E.2d 63. Ms. Clark "is an officer of the court. [Cit.] As an officer of the court, [a] probation [supervisor]'s primary duty is to represent the interest of justice, not the interests of his or her employer." Huzzie v. State, 253 Ga.App. 225, 226, 558 S.E.2d 767 (2002).

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, Para. III 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., 233 Ga. 667, 668(1), 212 S.E.2d 836 (1975). "[T]here are some matters which do not inherently and essentially appertain to one department of government rather than another." Southern R. Co. v. Melton, 133 Ga. 277, 282, 65 S.E. 665 (1909). "The separation of powers principle is sufficiently flexible to permit practical arrangements in a complex government...." Greer v. State of Ga., supra at 669(1), 212 S.E.2d 836.

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, 207 Ga.App. 645, 647(2), 428 S.E.2d 661 (1993) (State Board of Pardons and Paroles). The purpose of that department is "the supervision of felony probationers." OCGA § 42-8-23. On the other hand, the judiciary has "the power and jurisdiction to adjudicate any and all justiciable questions presented to it in litigation...." Thompson v. Talmadge, 201 Ga. 867, 871(1), 41 S.E.2d 883 (1947). Neither OCGA § 42-8-29 nor any other statute authorizes a probation supervisor to perform that judicial function. The trial court alone exercises the power and jurisdiction to determine whether a probationer violated the terms of his sentence so that probation should be revoked. Under OCGA § 42-8-29, Ms. Clark's duty in supervising Wolcott extended only to making her "findings and report thereon in writing to the court with [her] recommendation." By filing the revocation petitions, she did not initiate any new criminal action in the trial court against him. The petitions were only her written report and recommendation, which invoked the continuing jurisdiction that the trial court already exercised over Wolcott pursuant to OCGA § 42-8-34(g).

[I]n maintaining such continued jurisdiction, the sentencing court is aided by probationary 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, 558 S.E.2d 767. 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, 234 Ga. 264, 266, 215 S.E.2d 473 (1975). Accordingly, by authorizing a probation supervisor to file a revocation petition, OCGA § 42-8-29 does not violate the constitutional principle of separation of powers. See also United States v. Bermudez-Plaza, 221 F.3d 231, 234(II)(B)(2) (1st Cir.2000); United States v. Mejia-Sanchez, 172 F.3d 1172, 1175(II)(B) (9th Cir.1999).

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, 151 Ga.App. 116, 117(2), 258 S.E.2d 769 (1979). Here, the petitions filed by Ms. Clark did not charge Wolcott generally with a violation of unspecified rules or laws. Compare Collins v. State, supra at 117(2), 258 S.E.2d 769 ("broad allegation that the defendant violated ``the rules at the Athens Diversion Center,' without any specification of which rules were violated...."). Instead, the petitions alleged that he committed the specific offense of aggravated assault on or about September 2, 2003 in DeKalb County. Thus, they set forth the crime, the approximate date and the particular venue. Based upon these allegations, "[i]n neither case could [Wolcott] reasonably argue that he was not aware of the specific grounds upon which the revocation was based or that he could not adequately prepare his defense. [Cit.]" Wilson v. State, 152 Ga.App. 695, 697(2), 263 S.E.2d 691 (1979). Therefore, the petitions were sufficient to comply with due process requirements. Hayes v. State, 168 Ga.App. 94(1), 308 S.E.2d 227 (1983); Edge v. State, 164 Ga.App. 52(1), 296 S.E.2d 368 (1982); Hubbard v. State, 139 Ga.App. 336(1), 228 S.E.2d 362 (1976).

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, 169 Ga.App. 716, 717(3), 314 S.E.2d 722 (1984). In accordance with OCGA § 42-8-34.1(b), the proof offered by the State at the revocation hearing was sufficient to authorize the trial court to find by a preponderance of the evidence that Wolcott committed the offense of aggravated assault in DeKalb County in early August 2003. The one-month variance between the date alleged in the petitions and that proved at the hearing is not fatal. "``The (petition[s]) contained "on or about language," which was sufficient to put [Wolcott] on notice that the exact date might vary from the date contained in the (petition[s]).' [Cit.]" Jacoway v. State, 225 Ga.App. 712, 713, 484 S.E.2d 757 (1997). See also Lockett v. State, 143 Ga.App. 629, 630(5), 239 S.E.2d 238 (1977).

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 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, 194 Ga.App. 892, 893, 392 S.E.2d 322 (1990). Therefore, the trial court erred in considering the prior testimony of witnesses who were not shown to be dead, disqualified or otherwise inaccessible. See Elders v. State, 149 Ga.App. 139, 141(2), 253 S.E.2d 817 (1979). Compare Rini v. State, 236 Ga. 715(1)(a), 225 S.E.2d 234 (1976).

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, 231 Ga. 458, 461(1), 202 S.E.2d 99 (1973), overruled on other grounds, Howard v. State, 237 Ga. 471, 474, 228 S.E.2d 860 (1976); Crowder v. State, 237 Ga. 141, 153-154, 227 S.E.2d 230 (1976).

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, 389 U.S. 109, 115, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). However, that constitutional right does not apply in revocation proceedings. Vaughn v. Rutledge, 265 Ga. 773, 774(1), 462 S.E.2d 132 (1995). Thus, the fact that Wolcott was not represented by an attorney in the prior revocation proceedings does not affect the admissibility of the orders entered therein. Therefore, the trial court did not err in considering evidence of the previous revocation of Wolcott's probationary status.

Judgments affirmed.

All the Justices concur.