A Carroll County defendant’s probation was revoked last year for his purported failure to register as a sex offender despite the fact that the State never petitioned the court to revoke his probation on those grounds.
The Georgia Court of Appeals reversed, finding that the error violated the defendant’s due process rights. The Court of Appeals’ decision saves the defendant from nearly five years of incarceration that he would have served as a result of the probation revocation.
According to the Fulton County Daily Report, the defendant pleaded guilty to one count of cruelty to children and was sentenced to 10 years probation with sex offender conditions. At a hearing to revoke his probation, the State petitioned the Court to revoke six months of his probation for missing appointments with his probation officer. However, during the course of the hearing it was revealed for the first time that the defendant also allegedly failed to register as a sex offender. As a result, the court revoked the entire balance of his probation and sentenced him to serve four and a half years in prison.
Due process rights guaranteed by the U.S. Constitution require that a defendant facing a revocation of his probation receive written notice of the alleged violation of probation prior to the hearing. The purpose of this notice is to allow a defendant sufficient time to adequately prepare his defense.
In this case, the revocation was ultimately based on facts not alleged in the original petition and on an alleged violation that the defendant and his lawyer were inadequately prepared to defend against. The defendant and his lawyers first learned that he was accused of failing to register during the actual probation revocation hearing. Not only was he not notified of this allegation prior to the hearing, but the allegation resulted in a sentence eight-times greater than what the State had originally recommended.
Such an attempt to deprive a person’s liberty without proper notice is unconstitutional. A probation revocation based on a violation not charged in the original petition is cause for reversal.
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