McElroy v. State ( 1981 )

Hill, Presiding Justice,

concurring specially.

In my view Code Ann. § 27-2713 provides for both the preliminary and final hearings mandated for probationers by Gagnon v. Scarpelli, 411 U. S. 778, 781-782. However, in this case McElroy was arrested not for violation of probation but for burglary, and he has not shown lack of probable cause for the state to hold him for burglary. Hence there was no need for the preliminary hearing required by Gagnon to determine whether there was probable cause to hold him for a final probation revocation hearing. In my view Gagnon does not require a preliminary probation revocation hearing where the probationer is being duly held for trial for a subsequent crime. I therefore concur in the judgment.