McDonald v. State
McDonald v. State
Opinion of the Court
Terry Lavon McDonald, Jr., appeals the order revoking his probation based on two alleged violations and sentencing him to sixty months in prison. Because the State proved the charged violation of condition four of McDonald's probation, we affirm. However, because the State did not prove the charged violation of condition five, we remand for entry of a corrected revocation order.
While McDonald was on probation for a prior offense, he was arrested on a charge of murder. The murder occurred when a group of individuals got into a fight and one pulled out a gun and ended the fight by shooting his opponent. Based on McDonald's arrest, the Department of Corrections filed an affidavit of violation of probation (VOP) alleging that McDonald had violated condition five of his probation by being arrested for murder.
The State subsequently nolle prossed the murder charge against McDonald, and it never filed any other charges against him arising from the shooting incident. Nevertheless, the Department amended the VOP affidavit to allege that McDonald had violated condition five of his probation "by being arrested for the criminal offense of Possession of a Firearm by a Convicted Felon on 01/24/2017." It also charged that McDonald had violated condition four of his probation by "possessing, carrying, or owning any weapon or firearm" based on the probable cause affidavit relating to McDonald's murder arrest.
*469At the VOP hearing, the State presented testimony from a number of witnesses to the fight, one of whom testified that she saw McDonald in possession of a gun that night, and specifically that she saw the gun sticking out of the waistband of McDonald's pants. The State presented no evidence whatsoever that McDonald had ever been arrested for or charged with the offense of possession of a firearm by a convicted felon. Nevertheless, the trial court found that the State had proved the charged violations of both conditions four and five, and it revoked McDonald's probation based on these findings. McDonald now seeks review of this ruling.
As to the alleged violation of condition four, the evidence presented at the VOP hearing was sufficient to support the trial court's finding of guilt. The testimony from one witness that she saw McDonald with a gun stuffed into the waistband of his pants was legally sufficient to support the trial court's finding that McDonald violated condition four by possessing and/or carrying a firearm. Therefore, we affirm the court's finding of guilt as to the violation of condition four of McDonald's probation.
However, as to the alleged violation of condition five, there was no evidence to support the trial court's finding of a violation as charged in the affidavit. The affidavit specifically alleged that McDonald had violated condition five by being arrested for the offense of possession of a firearm by a convicted felon. However, there is no dispute that McDonald was never in fact arrested for that offense, and the State offered no evidence that he was ever arrested on that charge. Since the VOP affidavit identified conduct as the basis for the violation that the State did not prove, revocation on that basis was improper. And while the State did offer evidence that McDonald had been arrested for murder, that charge was ultimately nolle prossed and the State amended its VOP affidavit to eliminate any reference to that offense. Once it did so, the murder arrest could no longer serve as a basis for revocation because a revocation of probation cannot be based on conduct not charged in the affidavit. See McRae v. State,
Despite this error in the revocation order, however, reversal of the order of revocation is not necessary in this case. This court has held that it need not reverse an order of revocation based on one unproven violation when the record establishes that the trial court would have revoked probation based on a proven violation. See Cherington,
Affirmed but remanded with directions.
LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.
At the conclusion of the hearing, the court summarized the evidence and then stated that it would "find that the testimony in front of the Court at this time is sufficient to establish the greater weight of the evidence is proven [sic] that the Defendant, McDonald, was in possession of a firearm. And with that, I'll find him in violation of condition 5 and condition 4." This statement makes it clear that it was McDonald's possession of the firearm that triggered the revocation rather than any arrest for a new law offense.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.