                           FIFTH DIVISION
                          MCFADDEN, C. J.,
      MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  September 18, 2019




In the Court of Appeals of Georgia
 A19A1601. THE STATE v. HUFFMAN.                                              PH-054C

      PHIPPS, Senior Appellate Judge.

      On this discretionary appeal from the grant of Michelle Huffman’s motion to

dismiss the State’s petition to revoke her probation, the State argues that the court

erred because the petition gave Huffman adequate notice of the charges against her.

We agree and reverse.

      The issue here is whether the probation revocation petition afforded Huffman

due process. We review this question of law de novo. See White v. State, 274 Ga.

App. 805, 805 (619 SE2d 333) (2005) (reviewing the question of “the legal effect of

an order” issued by the Board of Pardons and Paroles “de novo”).

      The relevant facts are not in dispute. On March 1, 2018, after Huffman entered

negotiated guilty pleas to 3 counts of withholding information from a practitioner, she
was sentenced to 12 years on probation. On November 7, 2018, the State filed a

petition for modification/revocation of probation, alleging that Huffman had

committed the following violations:

      VIOLATION 1: did commit the new felony offenses of Forgery-First
      Degree and Theft by Deception, on or about August 10, 2018, in
      Houston County, Georgia, in violation of a condition of probation.


      VIOLATION 2: did fail to pay court ordered monies in that [Huffman]
      has made no payments on fines, fees, or supervision fees, in violation of
      a condition of probation.




      A hearing on the State’s petition was held on November 15, 2018. There,

Huffman argued that the trial court should dismiss the revocation petition on due

process grounds because the State did not give proper notice as to the particulars of

each new offense listed in Violation 1 of the petition. Huffman contended that there

were multiple ways to commit the offenses of forgery and theft by deception and that

the State was required to give notice of how she violated the particular statutes at

issue in order for her to prepare an adequate defense. The State responded that a

revocation petition is not required to meet the same standards as an indictment. The



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trial court continued the matter to allow the State an opportunity to amend the

petition.

      After the State declined to amend the petition, the trial court entered an order

granting Huffman’s motion to dismiss it. The court noted the Supreme Court of

Georgia’s decision in Wolcott v. State, 278 Ga. 664 (604 SE2d 478) (2004), which

held that a revocation petition comported with due process when it “set forth the

crime, the approximate date and the particular venue” of the probation violation, id.

at 667 (2), but distinguished Wolcott on the ground that the challenge was raised after

conviction and involved a single straightforward offense, whereas the State was

alleging here that Huffman committed forgery in the first degree and theft by

deception, both of which could be committed in multiple ways. The trial court

concluded that even though, having been arrested and charged regarding each of the

offenses, Huffman had actual knowledge of the State’s allegations, the petition was

inadequate as a matter of law because it “fail[ed] to allege the victim or the manner

in which the alleged crime was committed,” which affected Huffman’s “ability to

prepare a defense” and her “double jeopardy protection.” The court thus dismissed

the petition with prejudice, and we granted the State’s application for discretionary

review.

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      As our Supreme Court has recently reminded us, “‘the requirements of due

process are flexible and call for such procedural protections as the particular situation

demands.’” Miller v. Deal, 295 Ga. 504, 510 (2) (761 SE2d 274) (2014), quoting

Wilkinson v. Austin, 545 U.S. 209, 224 (IV) (125 SCt 2384, 162 LE2d 174) (2005).

Specifically, a probation revocation is not a criminal prosecution and does not require

the extent of proof sufficient to sustain a conviction. Johnson v. State, 142 Ga. App.

124, 127 (2) (235 SE2d 550) (1977).

      The situation before us is a probation revocation proceeding such that our

Supreme Court’s decision in Wolcott remains very much on point. That the crime of

forgery can be committed in more than one way is also true of the crime at issue in

Wolcott: aggravated assault may be committed with intent to murder, rape, or rob, or

(on the other hand) with a deadly weapon, which two alternatives require different

sets of facts as proof. See, e.g., Thomas v. State, 292 Ga. 429, 434 (5) (738 SE2d 571)

(2013) (declining to merge convictions for aggravated assault with intent to rob and

with a deadly weapon where each method of committing the crime required evidence

that the other did not, citing OCGA § 16-5-21 (a) (1), (2)). The holding of Wolcott is

that the revocation petition comported with due process because it “set forth the

crime, the approximate date and the particular venue,” Wolcott, 278 Ga. at 667 (2),

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just as this petition did. Although Huffman cites the Supreme Court’s recent decision

in Jackson v. State, 301 Ga. 137 (800 SE2d 356) (2017), which found an indictment

insufficient for due process purposes in light of its failure to either “set[] out all the

elements of the offense charged” or “allege the facts necessary to establish violation

of a criminal statute[,]” id. at 141 (1), we are bound to follow Wolcott in the context

of a probation revocation, and in the absence of any indication that Jackson or any

other decision of a higher court has changed the law in that context.

      For these reasons, we conclude that the trial court erred when it granted

Huffman’s motion to dismiss the State’s petition to revoke her probation.

      Judgment reversed. McFadden, C. J., and McMillian, P. J., concur.




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