State v. Brinson , 248 Ga. 380 ( 1981 )

Smith, Justice,

concurring in part and dissenting in part.

While I agree with the reasoning of Divisions 1, 3 and 4 of the majority opinion, I believe the “slight evidence” rule currently applicable to probation revocation proceedings in this state should be discarded. “For the reasons expressed in Judge Webb’s dissenting opinion in Dickerson v. State, 136 Ga. App. 885, 887-897 (222 SE2d 649) (1975), I strongly believe the ‘preponderance of the evidence’ test should have been applied in determining whether [the defendant] violated the terms of his probation.” Mingo v. State, 155 Ga. App. 284, 287-288 (270 SE2d 700) (1980) (Smith, Judge, dissenting). This widely accepted standard is succinctly stated in ABA Standards, Probation § 5.4 (a) (1970): “The court should not revoke probation without an open court proceeding attended by the following incidents: . . . (iii) where the violation is contested, establishment of the violation by the government by a preponderance of the evidence.”

I would vacate the judgment and remand the case for redetermination based upon this standard.

I am authorized to state that Presiding Justice Hill joins in this dissent.