Jacobs v. State

862 S.E.2d 579

JACOBS

v.The STATE.

A21A1179

Court of Appeals of Georgia.

August 23, 2021

Timothy Craig Head Jr., for Appellant.

George E. Barnhill, Waycross, lan Louis Sansot, for Appellee.

McFadden, Presiding Judge.

In this discretionary appeal, Alfred Lee Jacobs challenges the trial court's order revoking his probated sentence. The trial court revoked his probation after finding that Jacobs had violated a banishment condition. The undisputed evidence showed and the state conceded that Jacobs was brought into the banishment area involuntarily. Because the state did not show by a preponderance of the evidence that Jacobs wilfully remained there, we reverse.

1. Facts and procedural history.

"A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged." OCGA § 42-8-34.1 (b). The burden is on the state to make the necessary showing. Bowen v. State , 242 Ga. App. 631, 633, 531 S.E.2d 104 (2000). While we affirm a decision to revoke probation "unless there has been a manifest abuse of discretion on the part of the trial court," Caldwell v. State , 327 Ga. App. 471, 472, 758 S.E.2d 325 (2014) (citation and punctuation omitted), it is an abuse of discretion for the trial court to revoke probation if the state fails to meet its evidentiary burden. See Hunt v. State , 358 Ga. App. 897, 899, 856 S.E.2d 467 (2021) ; Bowen , supra. Evidence is sufficient to support a probation revocation "if the record includes some competent evidence to show that the defendant violated the terms of his probation in the specific manner charged...." Caldwell , supra.

The record shows that, after serving nearly fourteen years in prison for child molestation, Jacobs was released from prison in early July 2019 to serve the remaining five years of his sentence on probation. He was subject to a condition of banishment from a section of the state that included Coffee County. Later that month, his probation officer petitioned the trial court to revoke Jacobs's probation on the ground that Jacobs "was found to be in violation of his banishment condition, when he was located at [a specific address in Coffee County] after being notified [two days earlier] that he had 48 [hours] to leave his area of banishment."

At a hearing on the revocation petition, the trial court heard testimony from Jacobs, his probation officer, and his nephew. That testimony, viewed in the light most favorable to the trial court's ruling, showed that after Jacobs was released from prison, he met with his probation officer in Tifton, Georgia. The officer instructed Jacobs to register as a sex offender with the Tift County Sheriff's Department. But when Jacobs went to the sheriff's office, law enforcement officers transported him to Coffee County against his will.

Jacobs spent 48 hours in the Coffee County jail before he was taken to the home of his nephew, who lived in the county. His probation officer told him that he had 48 hours to leave the banishment area. The probation officer believed that Jacobs, a diabetic, had options other than walking out of the banishment area. He testified at the hearing that "[i]t would be quite a walk" for Jacobs to do so and he agreed that the temperature at the time was "about a hundred degrees."

Instead, the probation officer assumed that Jacobs's nephew could transport him out of the banishment area. But the nephew, while willing to drive Jacobs out of the area, could not do so by the 48-hour deadline due to his work schedule. Jacobs had no money to hire someone else to drive him out of the area, and under the conditions of his probation he could not hitchhike or work in the area to earn money.

Jacobs asked the officer what would happen if he did not leave and the officer replied that he would be arrested and a probation revocation hearing would be scheduled. Jacobs told the officer that "he would be right there [at his nephew's house] waiting on [the officer to come pick [him] up ... when 48 hours expired." Forty-eight hours later, the probation officer returned to the house and arrested Jacobs.

After the evidentiary hearing, the trial court granted the probation-revocation petition. Jacobs moved for a new trial, and the trial court denied his motion without express findings of fact. We granted Jacobs's application for discretionary appellate review.

2. Analysis.

To establish a probation violation, the state generally must show "some voluntary act on the part of the probationer." Gray v. State , 313 Ga. App. 470, 473 (2), 722 S.E.2d 98 (2011). In other words, the state must show that the probationer's "own actions" were the cause of the probation violation. Id. For example, in Gray we held that a probationer was not in willful and voluntary violation of a probation condition requiring his completion of a drug treatment program where he was dismissed from the program for a reason outside of his control. Id.

The state concedes that Jacobs did not enter the banishment area voluntarily and that it did not allege that he violated his probation for that reason. See generally Ponder v. State , 341 Ga. App. 276, 278 (1), 800 S.E.2d 19 (2017) (probation can only be revoked for reason alleged in state's petition). Indeed, at the probation revocation hearing the state argued to the trial court: "No one faults [Jacobs] for how he got here. He was, apparently, kidnapped by Tifton and dumped out over here for some reason." Instead, the state argues that the evidence showed that Jacobs voluntarily remained in the banishment area after the 48-hour time period expired. But there is no evidence that Jacobs had the ability to leave the area within that time frame.

The state points to Jacobs's statement to the probation officer that he would be at his nephew's house at the end of 48 hours and argues that this should be construed as evidence of Jacobs's intent to remain in the banishment area. But notwithstanding his intent, without evidence that Jacobs could have removed himself from the banishment area within the time frame imposed upon him, there is no evidence that his "own actions" caused the probation violation. See Gray , 313...