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Bergen v. State

The trial court erred in revoking more than two years of the defendant's probation in the absence of evidence that he committed a felony.

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We granted this application for discretionary appeal after a Catoosa County trial court revoked John H. Bergen’s probation. As in Gamble v. State , 290 Ga. App. 37 658 SE2d 785 2008, we reverse and remand for resentencing because Bergen was not found to have committed a felony and because the sentencing form did not specify that a violation of its conditions would result in the revocation of Bergen’s entire probation. The record shows that after a jury trial, the trial court convicted Bergen of aggravated assault and obstruction of a police officer and sentenced him to 12 years and 12 months, probated, with the latter portion to be served in a probation detention center. The trial court also ruled that Bergen “shall have no contact with his wife, except as required” concerning the couple’s divorce. As in Gamble , the Catoosa County sentencing form specified that the trial court could revoke any condition of probation at any time, that Bergen was “subject to arrest for violation of any condition of probation,” and that if probation was revoked, “the Court may order the execution of the sentence originally imposed or any portion in confinement” after deducting time already served. See id. at 37. Two preprinted pages entitled “special conditions” were also attached to the conviction, but were not more specific concerning the effects of a probation violation. See id. at 38.

On December 12, 2007, the State filed allegations including that Bergen had possessed cocaine and that he had made harassing phone calls to his wife. After a hearing, the trial court found that Bergen had made the calls and that he had violated other conditions of his probation, including unspecified “special conditions,” but did not make any finding as to the cocaine. The trial court then revoked the remainder of Bergen’s probation.

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