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Allison v. State

The rule of construction authorized the trial court to consider the defendant's multiple felonies in connection with his probation revocation.

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Barry K. Allison appeals following the grant of his application for discretionary review of the trial court’s order revoking his probation and ordering him to serve 15 years. According to Allison, the court erred in sentencing him on more than one felony offense under OCGA § 42-8-34.1. After reviewing the record, we affirm.

The record shows that in 2003, Allison pled guilty to four counts of aggravated assault and was sentenced to thirty years, with six to serve in jail and the balance on probation. In January 2012, Allison was charged with violating his probation by committing five new offenses over approximately eight months: three separate felony theft by taking offenses, one offense of second degree criminal damage to property, and one misdemeanor charge of theft by receiving. According to Allison, he entered an Alford plea to the charges. Based upon this plea, the trial court revoked 15 years of Allison’s probation. Allison objected to the amount, arguing that under OCGA § 42-8-34.1 d, the court was limited to revoking the lesser of the balance of his probation or the maximum penalty for a felony offense, which in this case would be ten years for one felony theft by taking offense. See OCGA § 16-8-12 a. The trial court then clarified its order, stating that it was revoking ten years as to the first violation for theft by taking and five years consecutive on the remaining counts. Allison appeals, arguing that nothing in OCGA § 42-8-34.1 d permits the court to sentence him for multiple crimes in connection with probation revocation.

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