Gonzales v. State

Pursuant to our grant of his application for discretionary appeal, Jose D. Gonzales argues that the State failed to satisfy its evidentiary burden under OCGA § 42-8-34.1 a and, therefore, the trial court erred in determining that he had violated the terms and conditions of his probation by committing a new felony offense theft by receiving stolen property. We agree and reverse. Pursuant to OCGA § 42-8-34.1 b, a court may revoke any part of any probated or suspended sentence if the defendant admits the violation as alleged or if the evidence produced at the revocation hearing establishes the violation by a preponderance of the evidence. “This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” Citation and punctuation omitted. Cheatwood v. State , 248 Ga. App. 617, 621 2 548 SE2d 384 2001. Accord Dugger v. State , 260 Ga. App. 843 581 SE2d 655 2003; Edwards v. State , 173 Ga. App. 589, 591 2 327 SE2d 559 1985.

Gonzales was sentenced on February 7, 2003, to five years, probated, for a violation of the Georgia Controlled Substances Act. General condition one of his probation was to not violate the criminal laws of any governmental unit. In November 2004, Gonzales’ probation officer filed his petition to revoke, alleging that, on October 27, 2004, Gonzales had committed theft by receiving stolen property.