Barnett v. State , 194 Ga. App. 892 ( 1990 )

McMurray, Presiding Judge.

The State brought this probation revocation proceeding against defendant alleging he violated the terms and conditions of his probation in a number of particulars. Specifically, it was alleged that defendant violated the rules of the Athens Diversion Center (“ADC”) as follows: “Violation ADC Rule #6 Failure to be at assigned destination 4-7-89 and 4-10-89. Violation ADC Rule #3 Fired from job 4-11-89. Violation ADC Rule #4 Failure to turn in pay to center 4-14-89. Violation ADC Rule #1 Failure to obey order of staff member 4-18-89. Violation ADC Rule #3 Fired from job 4-28-89. Violation of ADC policy to submit to urine test when ordered on 5-16-89. Disorderly conduct 5-17-89.” Following a hearing, the trial court determined that defendant violated “the terms of probation contained in the sentence imposed upon him ... as alleged in the petition for revocation of probation except the alleged discharge of the Defendant on April 28, 1989. ...” Based on the alleged violations, the trial court modified defendant’s probation in certain particulars. We granted defendant’s application for a discretionary appeal. Held:

With regard to a majority of the allegations set forth in the petition, the only evidence introduced by the State was hearsay evidence. Although jurisdictions differ, see Annot., Admissibility of Hearsay Evidence in Probation Revocation Hearings, 11 ALR 4th 999 (1982), in this jurisdiction hearsay evidence is inadmissible in a probation revocation proceeding. See Holbrook v. State, 162 Ga. App. 400, 402 (2) (291 SE2d 729). See generally Yarber v. State, 162 Ga. App. 475 (291 SE2d 780); Bradshaw v. State, 163 Ga. App. 819, 821 (3) (296 SE2d 119).

Of course, hearsay evidence is without probative value. Collins v. State, 146 Ga. App. 857 (1), 860 (247 SE2d 602). Thus, such evidence is incapable of supporting a trial court’s findings whether or not objection was lodged.

In relying upon hearsay evidence to support the majority of its findings in the case sub judice, the trial court erred. See Mills v. Bing, 181 Ga. App. 475, 477 (2) (352 SE2d 798). However, inasmuch as some of the allegations in the petition were supported by probative evidence (e.g., the failure to submit to a urine test on May 16, 1989, and the disorderly conduct on May 17, 1989), it cannot be said the trial court erred in modifying defendant’s probation. See Allen v. State, 172 Ga. App. 323 (323 SE2d 242).

Judgment affirmed.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Beasley, J., dissents.