Non‑Waivable Statutory Preconditions for Probation Revocation in Georgia:
Commentary on State v. Greathouse (Ga. 2025)

1. Introduction

In State v. Greathouse, S25G0491 (decided Nov. 18, 2025), the Supreme Court of Georgia confronted a deceptively simple but far‑reaching question: under OCGA § 42‑8‑34.1(b), can a trial court revoke a probationer’s sentence based solely on a previously signed consent order that (1) revokes probation but suspends the balance of the sentence conditioned on completion of treatment, and (2) contains a broad prospective waiver of any future probation revocation hearing?

The case arose after Jody Greathouse, a first offender placed on probation for drug-related offenses, repeatedly violated his probation conditions. In December 2023, he entered a Consent Order of Revocation that purported to waive not only his immediate procedural rights (petition, counsel, hearing) but also any future right to a probation revocation hearing if he later failed to complete a nine‑month inpatient drug treatment program. When he subsequently left treatment early, the trial court—without taking new evidence and without any new admission from Greathouse—ordered him arrested and transferred to the Department of Corrections to serve the balance of his sentence.

The Court of Appeals vacated that revocation, holding that OCGA § 42‑8‑34.1(b) did not permit revocation absent either (a) the probationer’s admission of the specific violation or (b) a revocation hearing at which the State proves the violation by a preponderance of the evidence. The Georgia Supreme Court granted certiorari ostensibly to decide whether a defendant may prospectively waive rights to a probation revocation hearing for future alleged violations, but ultimately reframed the case as one of statutory construction.

The Supreme Court’s majority opinion, authored by Justice Ellington, affirms the Court of Appeals. It holds that the plain language of OCGA § 42‑8‑34.1(b) limits a trial court’s authority to revoke a probated or suspended sentence and that this statutory limitation cannot be overcome by a probationer’s purported waiver, particularly where no admission of the violation was made and no revocation hearing with evidence was held.

Justice LaGrua dissents, arguing that the waiver question was squarely presented and that, under Georgia precedent, a defendant may knowingly and intelligently waive even the right to a future revocation hearing. She also contends that the April 25, 2024 “show cause” hearing effectively satisfied § 42‑8‑34.1(b)’s hearing requirement.

This decision is significant not because it broadly declares that probationers can never waive revocation hearings, but because it locates the decisive constraint in the statute governing the trial court’s authority, not in a personal right of the defendant. That move has concrete implications for how probation revocations must be handled throughout Georgia.

2. Factual and Procedural Background

2.1 Original conviction and first offender probation

In October 2022, Greathouse pleaded guilty to:

Possessing less than two grams of methamphetamine, and
Possessing a drug‑related object.

He was sentenced as a first offender to three years of probation, with conditions that included:

Payment of a fine;
Completion of a substance abuse evaluation at the direction of the probation office; and
Successful completion of any recommended treatment at his own expense.

As a “first offender,” Greathouse had the benefit of a deferred adjudication structure under Georgia law: if he successfully completed his sentence, his conviction would not be formally entered and he could avoid some collateral consequences. If he failed, the court could revoke his first offender status and impose up to the maximum sentence for his offenses.

2.2 Multiple probation violations and consent revocations in 2023

Between March and November 2023, Greathouse committed multiple probation violations, including:

Failing to complete a drug evaluation;
Failing to attend required classes; and
Failing to complete drug treatment.

On at least three occasions—May 8, August 14, and December 4, 2023—the trial court entered consent orders of revocation. In each, Greathouse:

Admitted the probation violations then alleged;
Waived his right to a written revocation petition;
Waived his right to appointed counsel for the revocation; and
Waived his right to a probation revocation hearing.

Despite repeated violations, the court did not revoke his first offender status. Instead, it reinstated probation and allowed him additional opportunities to comply and receive treatment outside incarceration.

2.3 The December 4, 2023 Consent Order and the “prospective waiver”

The December 4, 2023 Consent Order is the centerpiece of this case. That order:

Revoked probation, but allowed the remaining sentence to be suspended on the condition that Greathouse successfully complete a nine‑month inpatient drug treatment program;
Contained the usual waivers related to the current revocation; and
Added a key clause: a prospective waiver of any constitutional or statutory right to a probation revocation hearing for any future violation related to his failure to complete the program.

The waiver language provided (quoted in the opinion):

“The Defendant specifically waives any constitutional or statutory right to a probation revocation hearing based upon any subsequent violation of this provision. In the event that a court of competent jurisdiction finds probable cause, upon oath, affirmation, or sworn affidavit, that the defendant has failed to successfully complete [a substance abuse] program, then the defendant's ongoing participation in such program shall be terminated immediately and, upon arrest of the defendant for such violation by any law enforcement officer, the defendant shall be returned to confinement … and the provision to serve the balance of … said sentence shall be enforced.”

In short, Greathouse and the State agreed on paper that if he later left the program early, he could be seized and made to serve his remaining sentence with no further hearing.

2.4 The 2024 alleged violation and arrest order

On April 3, 2024:

A community supervision officer submitted a sworn affidavit alleging that Greathouse had left the inpatient facility before completing the nine‑month program.
That same day, the trial court issued an arrest order directing law enforcement to apprehend Greathouse and transfer him to the Georgia Department of Corrections to “serve the balance of his probation in … custody.”

This action effectively implemented the December 2023 Consent Order’s prospective waiver clause without:

Any new admission by Greathouse that he had violated probation, and
Any new revocation hearing with evidence presented in open court.

2.5 The April 2024 motion and hearing

On April 18, 2024, Greathouse—now represented by counsel—filed a motion to:

Vacate the April 3 arrest order; and
Modify the sentence imposed on the revocation.

He also challenged the validity of the December 2023 Consent Order, noting that he had entered into it without counsel and seeking an opportunity to argue the merits of any revocation.

The trial court:

Suspended the arrest order; and
Set the matter for a “show cause” hearing on April 25, 2024.

At that hearing:

Greathouse appeared remotely by Webex; his lawyer appeared in person.
Defense counsel primarily argued the legality and fairness of the December Consent Order and requested that it be vacated.
The State did not present any evidence of the alleged violation—neither the community supervision officer’s sworn affidavit nor live testimony.
The State instead suggested that if Greathouse insisted on “a hearing and a petition filed,” his “parole date will be even later” than if the Consent Order were simply enforced—underscoring that the parties did not treat this as the statutory “revocation hearing.”

The trial court denied Greathouse’s motion. It left in place the prior revocation and enforcement of the balance of the sentence.

2.6 Court of Appeals decision

On appeal, the Court of Appeals:

Vacated the trial court’s order enforcing the revocation;
Held that under OCGA § 42‑8‑34.1(b), a court “was not authorized to revoke any part of [Greathouse's] probated or suspended sentence without [his] admitting the violation as alleged or without a revocation hearing”; and
Concluded that the statute does not allow a probationer to waive “the right to a future hearing on future alleged violations,” but rather “explicitly prohibited a court from revoking … unless the due process safeguards incorporated into the statute are satisfied.”

The State sought certiorari, styling the question as whether a probationer may “prospectively waive constitutional or statutory rights to a probation revocation hearing in the event of a subsequent violation of the terms of probation.”

3. Summary of the Supreme Court’s Decision

The Georgia Supreme Court affirmed the Court of Appeals. The majority opinion’s key points can be summarized as follows:

Core holding (statutory authority):
- OCGA § 42‑8‑34.1(b) unambiguously provides that a court “may not revoke any part of any probated or suspended sentence” unless:
  1. The defendant admits the violation as alleged; or
  2. Evidence produced at a revocation hearing proves the violation(s) by a preponderance of the evidence.
- These two alternatives are statutory preconditions to the court’s authority to revoke; they are not merely personal rights that can be contractually waived in advance.
Effect on waivers:
- A defendant’s purported waiver of “any constitutional or statutory right to a probation revocation hearing”—like the clause in Greathouse’s Consent Order—cannot relieve the trial court of its statutory obligation to obtain either:
  - a current admission of the violation, or
  - a finding of violation based on evidence at a revocation hearing.
- The absence of an explicit “anti‑waiver” clause in § 42‑8‑34.1(b) does not matter, because the statute is framed as a restriction on what the court may do, not just as a right held by the defendant.
No decision on the broader due process / waiver question:
- The Court declines to answer the more general question of whether, as a matter of due process or general waiver doctrine, a probationer can prospectively waive revocation‑hearing rights.
- It explains that the Court of Appeals did not actually decide that constitutional question; it merely interpreted § 42‑8‑34.1(b) as limiting a court’s authority.
- Addressing the broader question would, in the majority’s view, amount to issuing an advisory opinion, which Georgia courts are not permitted to do (Fulton County v. City of Atlanta, 299 Ga. 676 (2016)).
The April 25, 2024 hearing was not a statutory revocation hearing:
- The State never argued—either in the Court of Appeals or in the Supreme Court—that the April 25 hearing satisfied § 42‑8‑34.1(b).
- The record confirms the hearing was directed to Greathouse’s motion to vacate the arrest order and modify his sentence, and the State itself described a future “petition and hearing” as distinct and separate.
- Therefore, the April 25 hearing did not satisfy the statute’s requirement of a revocation hearing at which evidence is presented to establish a violation.
Result:
- The trial court lacked statutory authority to revoke Greathouse’s probation based solely on the December 2023 Consent Order and the officer’s affidavit; it needed either a new admission or a proper revocation hearing with evidence.
- The Court of Appeals’ judgment vacating the revocation is affirmed.

4. Statutory Framework: OCGA § 42‑8‑34.1(b)

The central statutory provision states:

“A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” OCGA § 42‑8‑34.1(b) (emphasis added).

Key features of this language:

Negative command: The phrase “may not revoke” is prohibitory. It restricts the court’s power.
Conditional authority: The phrase “unless …” introduces two specific conditions under which revocation becomes permissible:
- Defendant’s admission of “the violation as alleged”; or
- Evidence at a revocation hearing establishing the alleged violation(s) by a preponderance of the evidence.

The statute thus intertwines:

A procedural right of the probationer to a hearing unless he admits the violation; and
A substantive limit on the court’s authority to revoke absent one of those two conditions.

The majority opinion emphasizes this latter dimension—the limitation on judicial authority—as the decisive feature that makes broad prospective waivers ineffective.

5. Detailed Analysis of the Majority’s Legal Reasoning

5.1 Textualism and the “plain meaning” approach

The Court frames the case squarely as one of statutory interpretation. It invokes well‑established interpretive principles from recent Georgia decisions:

State v. Arroyo, 315 Ga. 582 (2023):
- Courts “presume that the General Assembly meant what it said and said what it meant.”
- When statutory text is clear and unambiguous, courts “begin and end” with the text.
State v. Cook, 317 Ga. 659 (2023):
- Statutory text must be given its “plain and ordinary meaning,” viewed in context, and read “in its most natural and reasonable way.”
Clark v. State, 321 Ga. 35 (2025):
- Words like “shall” are generally construed as mandatory unless the context suggests otherwise.

Applying those principles, the Court reasons:

The text is clear and unambiguous. It uses a prohibitory phrase (“may not revoke”) coupled with an “unless” clause that lists two exhaustive conditions.
There is no contextual reason to interpret “may not … unless” as merely giving defendants a waivable procedural option. It reads most naturally as a limit on the court’s power.
Because the text is clear, “our interpretive task begins and ends with the text itself” (Arroyo).

This textualist approach has an important consequence: arguments about general waiver doctrine or about constitutional due process are sidelined. If the statute itself forbids revocation unless a certain process occurs, then even if a defendant wished to give up that process, a court still may not act in violation of the statutory preconditions.

5.2 Limits on court authority vs. waivable defendant rights

The State’s core argument was that:

Many rights in criminal proceedings are waivable;
Georgia courts have repeatedly allowed defendants to waive constitutional and statutory rights (such as the right to counsel, the right to appeal, and rights associated with guilty pleas); and
Because § 42‑8‑34.1(b) lacks an explicit “anti‑waiver” clause, the probationer should be free to waive revocation‑hearing rights as part of an “alternate dispute resolution” arrangement.

The majority rejects this, drawing a distinction between:

Rights that belong to the defendant personally and can be knowingly and voluntarily waived if no law forbids it; and
Statutory limitations on a court’s authority to act, which cannot be expanded by consent.

The Court emphasizes that § 42‑8‑34.1(b) is worded as a limit on what a court “may” or “may not” do, not simply as a grant of procedural rights to a defendant. Thus:

“[T]he State … overlooks the express language from subsection (b) that restricts the court's authority to revoke probation without the probationer first admitting the allegation or without the court holding a hearing, irrespective of any attempt by the probationer to waive his right to the hearing.”

Even if a defendant is willing to waive process, the Legislature has drawn a boundary around judicial power: no revocation without either (1) a current admission of the violation or (2) proof at a revocation hearing.

As a matter of basic separation of powers, courts cannot enlarge their own jurisdiction or authority merely because the parties agree. A defendant cannot consent to an unlawful sentence or to a procedure the law does not authorize. This case illustrates that principle in the probation context.

5.3 The two statutory pathways to revocation

The majority reads § 42‑8‑34.1(b) as providing two and only two gateways for lawful revocation:

Pathway 1: Admission
- If the probationer “admits the violation as alleged,” the court may revoke without holding a revocation hearing.
- This fits common practice with consent orders: a defendant, often with counsel, admits the violation on the record or in a signed stipulation, and the court then tailors the sanction accordingly.
- Critically, the admission must be to the existing alleged violation, not a speculative future event.
Pathway 2: Revocation hearing with evidence
- If the defendant does not admit the allegation, the court must hold a revocation hearing.
- At that hearing, “evidence … must establish by a preponderance of the evidence the violation or violations alleged.”
- A mere affidavit in the file, without adversarial testing or opportunity for the probationer to respond, is not what the statute contemplates.

The December 2023 Consent Order tried to chart a third route: a kind of automatic “self‑executing” revocation for any future non‑completion of the treatment program, triggered by a probable‑cause finding on an affidavit and executed without a new admission or formal revocation hearing. The majority holds such an arrangement is incompatible with the statute’s closed list of permissible revocation mechanisms.

5.4 Why prior waiver cases do not control

The dissent (and the State) cite a line of Georgia cases recognizing broad waiver authority, including:

Thomas v. State, 260 Ga. 262 (1990): “If there is no constitutional, statutory, or public policy prohibition against waiver, an accused may validly waive any right.”
Rush v. State, 276 Ga. 541 (2003): Defendants may waive their statutory right to appeal in exchange for the State’s agreement not to seek the death penalty.
Blackwell v. State, 299 Ga. 122 (2016): Defendants may waive the right to withdraw a guilty plea any time before sentencing.
Rawles v. Holt, 304 Ga. 774 (2018): Defendants may waive the right to file a habeas corpus petition.
State v. Houston, 312 Ga. 853 (2021): Criminal defendants may waive their Sixth Amendment right to counsel if the waiver is voluntary and intelligent.
Green v. State, 318 Ga. 610 (2024): Constitutional and statutory rights may be waived in the guilty‑plea context if the waiver is voluntary and intelligent.

The majority distinguishes these cases on a critical ground:

“But those cases are distinguishable because the statutes or constitutional provisions that provided the criminal defendant the right that was waived in those cases did not involve express statutory language that restricted a court’s authority to act, as OCGA § 42‑8‑34.1(b) does.”

In other words:

Those cases involved rights that could be understood as belonging primarily to the defendant, with no explicit legislative limitation on the court’s power in the background.
Here, the clear statutory text—“may not revoke … unless”—is itself the “statutory prohibition” on waiver envisioned by Thomas.

Far from being in tension with the waiver precedents, the majority treats § 42‑8‑34.1(b) as providing the very kind of “statutory … prohibition against waiver” that terminates the waiver analysis under Thomas.

5.5 Why the April 25, 2024 hearing did not save the revocation

Justice LaGrua’s dissent argues that the April 25 hearing:

Gave Greathouse an “opportunity to deny or explain the circumstances” of his violation; and
Therefore “arguably satisf[ied]” the statute’s requirement of a revocation hearing.

The majority rejects this for both procedural and substantive reasons:

Procedural (party‑presentation principle):
- The State never argued, in the Court of Appeals or the Supreme Court, that the April 25 hearing constituted the statutory “revocation hearing.”
- Courts typically decide cases based on issues the parties present; adopting a new, unargued theory would contradict that principle.
Substantive (nature of the hearing):
- The trial court’s order setting the hearing described it as one on Greathouse’s motion to vacate the arrest order and to modify his sentence, not as a hearing on the alleged violation itself.
- The State’s own statements at the hearing indicated that a future “petition” and “hearing” would be required if the Consent Order were set aside, reinforcing that the parties did not view this as the revocation hearing.
- The State presented no evidence at the hearing—neither the officer’s affidavit nor testimony—to prove the violation by a preponderance of the evidence.

Thus, by the majority’s lights, the April 25 proceeding lacked the essential elements of a statutory revocation hearing: it did not purport to adjudicate the alleged violation, and no evidence was introduced to prove or disprove that violation.

5.6 Avoiding an advisory opinion on “prospective waiver” as a constitutional matter

The Supreme Court initially granted certiorari to decide whether a defendant may “prospectively waive constitutional or statutory rights to a probation revocation hearing” for future violations. After full briefing and oral argument, however, the majority concludes that:

The Court of Appeals did not purport to announce a general due process rule barring all such waivers.
Instead, it grounded its decision in the statutory language of § 42‑8‑34.1(b).
Accordingly, the constitutional waiver question is “not presented” by this case in a way that requires decision.
To reach out and decide the broader due process issue would be to issue an advisory opinion, which Georgia courts lack authority to do (Fulton County v. City of Atlanta, 299 Ga. 676, 678 (2016)).

The majority’s approach has a dual effect:

It resolves the case on narrow statutory grounds, in keeping with the principle of constitutional avoidance.
It leaves open—at least in theory—the possibility that, in some future case under a differently worded statute, a court might address whether due process permits prospective waivers of revocation hearings.

Justice LaGrua criticizes this move, arguing that the majority is effectively rejecting such waivers while purporting not to decide the question. However, doctrinally, the majority’s holding is rooted entirely in the statute: the statute itself forbids revocation without an admission or a hearing, and a defendant’s waiver cannot override that limit. That is distinct from saying that due process would necessarily invalidate all prospective waivers even if the statute were amended.

6. Precedents and Authorities Cited

6.1 State v. Arroyo and State v. Cook: Anchoring the plain‑meaning method

The majority’s interpretive analysis draws heavily on State v. Arroyo and State v. Cook:

Arroyo:
- Stresses that courts must give statutory text its “plain and ordinary meaning” and presume the legislature meant what it said.
- Holds that when text is clear, courts should not search beyond it.
Cook:
- Emphasizes reading a statute in context and in its “most natural and reasonable way.”

By invoking these cases, the Court situates Greathouse within a broader trend of disciplined textualism in Georgia statutory interpretation, particularly in criminal law.

6.2 Clark v. State: Mandatory language and statutory commands

The majority uses Clark v. State, 321 Ga. 35 (2025), to reinforce that directive language in a statute is generally mandatory:

“[T]he term ‘shall’ is generally construed as mandatory unless there is a contextual reason to think it is merely permissive. There is no such contextual reason here; to the contrary, the context suggests that ‘shall’ is mandatory.”

Although § 42‑8‑34.1(b) uses “may not … unless” rather than “shall,” the logic is parallel:

“May not revoke … unless” functions as a mandatory prohibition on revocation except in specified circumstances.
There is no contrary indication in the surrounding statutory scheme that the Legislature meant to allow parties to waive those conditions.

6.3 Waiver cases: Thomas, Green, Blackwell, Houston, Rawles, and Rush

As noted, the dissent marshals a line of cases on waiver. The majority does not dispute their holdings; rather, it explains that those cases operate in a different statutory and structural context.

Together, those precedents stand for the proposition that:

Defendants can waive many constitutional and statutory rights in criminal proceedings; but
The key predicate is that “there is no constitutional, statutory, or public policy prohibition against waiver” (Thomas).

In Greathouse, by contrast, § 42‑8‑34.1(b) is interpreted as that very sort of “statutory … prohibition”: the Legislature has drawn a line around revocation and conditioned it on certain procedures. Courts and defendants together cannot contract around that legislative command.

6.4 Fulton County v. City of Atlanta: No advisory opinions

The majority cites Fulton County v. City of Atlanta, 299 Ga. 676 (2016), for the principle that Georgia courts may not issue advisory opinions.

In Fulton County, the Court held that it could not opine on legal questions that did not arise from an actual case or controversy with concrete stakes. The Greathouse majority uses this precedent to justify:

Refusing to resolve the broader constitutional question originally framed in the certiorari grant;
Restricting its holding to the interpretation of § 42‑8‑34.1(b) as applied to the facts at hand.

7. The Dissenting Opinion (Justice LaGrua)

7.1 The dissent’s view of the issues presented

Justice LaGrua strongly disagrees with the majority’s framing. In her view:

The State plainly and repeatedly argued, in the Court of Appeals and at certiorari, that a probationer may prospectively waive any rights to future revocation hearings.
The Court of Appeals “necessarily rejected” that argument, reasoning that “due process demands that the petitioner be afforded the opportunity to deny or explain” alleged violations.
Therefore, the waiver/due‑process issue is properly before the Supreme Court and ought to be decided.

She suggests that, had the Court squarely addressed that question, she would have held that a probationer’s “right to a future probation revocation hearing on future alleged violations” is among the many rights Georgia defendants can validly waive, so long as the waiver is knowing, voluntary, and intelligent.

7.2 The dissent’s account of what happened procedurally

Justice LaGrua also emphasizes factual and procedural details that, in her view, undercut the majority’s concern about unfairness:

Repeated opportunities and leniency: She notes that:
- Greathouse violated probation multiple times in 2023;
- Each time, he entered consent revocations admitting violations and waiving immediate rights;
- Despite this pattern, his first offender status was never revoked, and he was repeatedly allowed to remain in the community with treatment opportunities.
The December 2023 waiver was explicit and detailed:
- It clearly explained that if, upon sworn evidence, a court found probable cause that he had failed to complete the program, his treatment would be terminated and he would be returned to custody.
- It memorialized his understanding and voluntary waiver of any future hearing.
The April 25 hearing gave him an opportunity to be heard:
- After the affidavit and arrest order, defense counsel requested a chance to “contest or explain the allegations.”
- The trial court promptly suspended the arrest order and set a “show cause” hearing.
- At that hearing, Greathouse and his counsel appeared; counsel expressly said the matter could “primarily be handled just with argument” and presented no evidence to contradict the affidavit or justify leaving treatment.
- The trial court concluded it could not grant relief “without any proof,” implying that Greathouse had, in fact, been given but failed to use an opportunity to present evidence.

From this vantage point, the dissent contends that the Court of Appeals was wrong to say that Greathouse “had no opportunity” to contest the allegations or explain the circumstances: he had such an opportunity and simply did not take it.

7.3 The dissent’s reading of § 42‑8‑34.1(b)

Justice LaGrua takes a more flexible view of the statute:

She suggests the April 25 hearing may “arguably satisf[y]” § 42‑8‑34.1(b)’s hearing requirement, since Greathouse was allowed to appear and be heard.
She also implies that nothing in the statute’s language expressly forbids a probationer from waiving the right to a future revocation hearing.

From her perspective, the majority’s reading effectively treats the statute as an unwritten anti‑waiver provision, a move she believes is neither commanded by the text nor consistent with Georgia’s broad waiver jurisprudence.

7.4 Policy concerns: unintended consequences

Justice LaGrua closes with a practical concern: now that the majority requires a new revocation hearing (or admission) before any revocation, the trial court on remand can:

Revoke Greathouse’s first offender status (which has not yet been revoked); and
Impose the maximum sentence for his two offenses under OCGA § 42‑8‑16(d) and relevant criminal code provisions.

Ironically, the additional procedural protections the majority insists on could expose Greathouse to a more severe sentencing outcome than he faced under the Consent Order he originally signed. For the dissent, that scenario underscores why courts should allow defendants to strike pragmatic bargains, including prospective waivers, when they are trying to avoid worse consequences.

8. Practical Impact and Future Implications

8.1 Immediate impact on probation practice in Georgia

State v. Greathouse has clear and concrete operational consequences:

No “self‑executing” revocations based solely on prospective waivers.
- Consent orders or treatment agreements that purport to automatically trigger revocation upon a future violation—without a new admission or a new evidentiary hearing—are inconsistent with § 42‑8‑34.1(b) as interpreted by the Court.
- Prosecutors and courts can still use conditional sentencing structures (e.g., “complete treatment or face jail”), but they must be implemented via a lawful revocation process at the time of the actual violation.
For every revocation event, there must be either:
- A clear, contemporaneous admission by the probationer of the specific alleged violation; or
- A revocation hearing in which the State actually produces evidence establishing the violation by a preponderance of the evidence.
Affidavits and ex parte probable‑cause determinations are not enough.
- An affidavit may support an arrest warrant or order to bring the probationer before the court.
- But final revocation—imposing incarceration or other sanctions—requires either a fresh admission or an evidentiary hearing with the probationer given a real opportunity to contest the allegations.

8.2 Effects on plea bargaining and “treatment in lieu of incarceration” programs

Many Georgia jurisdictions, especially drug courts and accountability courts, rely on structured agreements that condition leniency on compliance with treatment or programming, with the threat of swift incarceration if the participant falters. Some of these arrangements have used consent orders that:

Front‑load waivers of future revocation hearings;
Describe revocation as automatic or “self‑executing” on a future violation.

Greathouse does not outlaw such collaborative, treatment‑oriented sentencing models. But it does require that:

When a future violation is alleged, the court still must:
- Obtain a new admission of that violation; or
- Conduct a proper revocation hearing with evidence.
Defense counsel and prosecutors must structure agreements with this statutory boundary in mind, recognizing that they cannot legally promise to bypass those procedures later.

8.3 Guidance for defense counsel

Defense attorneys representing probationers should draw several lessons:

Scrutinize any “prospective waiver” clauses.
- Clauses that purport to waive future revocation hearings for unspecified or not‑yet‑occurred violations are legally ineffective to expand a court’s revocation authority.
- Defense counsel should advise clients that, whatever the paperwork says, § 42‑8‑34.1(b) still entitles them to either admit or demand a hearing if and when a future violation is alleged.
Insist on clear admissions if using consent revocations.
- Where a client is genuinely admitting a current violation as part of a negotiated consent order, that admission can satisfy § 42‑8‑34.1(b) and obviate the need for a full evidentiary hearing.
- But an “admission” to hypothetical future misconduct is not an admission of “the violation as alleged” because the violation has not yet happened.
Use revocation hearings strategically.
- In cases where the State’s evidence is weak or where mitigating circumstances are strong, a contested revocation hearing may be beneficial.
- After Greathouse, defense counsel can confidently object to revocations based solely on prior blanket waivers without new admissions or hearings.

8.4 Guidance for prosecutors and trial courts

For prosecutors and judges, the case underscores:

Need to align local practices with statutory commands.
- Even if a local probation program has long used “automatic revocation” clauses, those practices must yield to the statutory requirement articulated in § 42‑8‑34.1(b).
Importance of developing a record at revocation hearings.
- To avoid challenges, trial courts should ensure that at least one of the following appears clearly on the record:
  - A specific, on‑the‑record admission by the probationer to each alleged violation justifying revocation; or
  - Evidence (documents, testimony, etc.) introduced at a hearing, with the court making a finding that the violation is proven by a preponderance of the evidence.
Awareness of advisory‑opinion limitations.
- Courts should avoid crafting broad constitutional pronouncements when a case can be resolved on clear statutory grounds, as the majority does here.

8.5 Open questions left by the decision

While Greathouse provides important clarity, it also leaves several issues open for future cases:

Scope of “admission” under § 42‑8‑34.1(b):
- The Court does not elaborate on what form an admission must take. For example, must it be oral in court, or can a written stipulation suffice?
- It is clear, however, that it must relate to a current, concrete alleged violation, not to hypothetical future misconduct.
Constitutional permissibility of prospective waivers, hypothetically.
- The Court expressly declines to decide whether, as a matter of constitutional due process, a probationer could validly waive future revocation hearings for specific, known potential violations if the statute were different.
- Legislative changes or cases involving other statutory schemes could revive this question.
Whether certain types of hearings might satisfy § 42‑8‑34.1(b) informally.
- The dissent’s argument that a “show cause” hearing could suffice—if the probationer has an opportunity to be heard and the State’s evidence is already in the record—may arise again in future cases with a different record.

9. Complex Concepts Explained in Plain Terms

9.1 What is probation revocation?

Probation is a period during which a defendant remains in the community under court‑ordered conditions instead of going to prison. If the defendant violates those conditions—by committing new crimes, failing drug tests, leaving treatment, etc.—the court can revoke probation, meaning it can:

Send the person to jail or prison for part or all of the remaining sentence;
Extend the probation term; or
Impose additional conditions.

A probation revocation hearing is a proceeding where a judge decides whether a violation occurred and what to do about it.

9.2 What does “preponderance of the evidence” mean?

“Preponderance of the evidence” is a standard of proof. It is lower than the “beyond a reasonable doubt” standard used at criminal trials. Under the preponderance standard, the judge must be convinced that it is:

More likely than not that the violation occurred—just over 50% likelihood.

In probation revocation, the State does not need to prove the violation as strongly as it had to prove the original crime. But it still must bring enough evidence to tip the scales.

9.3 What is a “prospective waiver”?

A prospective waiver is an agreement that gives up a right not just for a current situation, but for future, not‑yet‑occurred events. In Greathouse, the December 2023 Consent Order attempted to waive:

Any right to a revocation hearing in the event of any future violation related to the inpatient program.

The Georgia Supreme Court held that such a prospective waiver cannot empower a court to ignore the statutory preconditions for revocation in § 42‑8‑34.1(b).

9.4 What is an “advisory opinion” and why are courts not allowed to give them?

An advisory opinion is a court’s statement on a legal question that:

Is not necessary to resolve the real dispute between the parties; or
Addresses hypothetical situations not actually before the court.

Georgia courts, like federal courts, are constitutionally limited to deciding actual “cases” or “controversies.” They are not permitted to issue legal advice or pronouncements that do not affect the parties before them. In Fulton County v. City of Atlanta, the Georgia Supreme Court emphasized that such advisory opinions exceed judicial authority.

In Greathouse, the majority invokes this principle to explain why it will not decide the broad question of whether due process ever allows prospective waivers of revocation hearings, when the case can be resolved on statutory grounds.

9.5 First offender status

Georgia’s first offender statute allows certain qualifying defendants to plead guilty without having a conviction formally entered, provided they successfully complete their sentence. If they do:

No conviction is entered on their criminal record; and
They obtain important benefits in employment, housing, and civil rights.

If they fail:

The court can revoke first offender status and impose up to the maximum sentence as if the defendant had been convicted in the first place (see OCGA § 42‑8‑16(d)).

In Greathouse, despite multiple violations, the trial court had not yet revoked his first offender status. The dissent notes that, at any future revocation hearing now required by the majority’s ruling, the court could impose a more severe sentence than anything contemplated by the prior Consent Order.

10. Conclusion: The Significance of State v. Greathouse

State v. Greathouse establishes a clear and consequential rule for Georgia probation practice:

Under OCGA § 42‑8‑34.1(b), a Georgia trial court may not revoke any part of a probated or suspended sentence unless either:
(1) the probationer admits the specific violation as alleged; or
(2) the State produces evidence at a revocation hearing proving the violation(s) by a preponderance of the evidence.

This statutory limitation on the court’s authority cannot be overridden by a probationer’s prospective waiver of revocation‑hearing rights.

The decision does not hold that due process always forbids prospective waivers in this context. Rather, it grounds the outcome firmly in statutory text, reflecting a strong textualist approach and a strict view of judicial role:

The Legislature has drawn bright procedural lines around the power to revoke; courts and parties alike must respect them.
Judges cannot “short‑circuit” statutory safeguards, even if defendants are willing (or seem willing) to sign them away.

Practically, Greathouse will require prosecutors, probation officers, and trial courts across Georgia to:

Abandon or revise any “automatic” revocation provisions that rely solely on prior blanket waivers; and
Ensure that each revocation is grounded either in a contemporaneous admission or in a hearing with evidence and findings.

For defense counsel and probationers, the decision strengthens the procedural protections available when alleged violations occur. It guarantees that a past signature on a consent form cannot, on its own, substitute for a meaningful opportunity—at the time of the alleged misconduct—to admit, contest, or explain what happened.

In the broader legal landscape, State v. Greathouse reinforces several core principles:

Textual fidelity: Clear statutory language, especially when framed as a limit on judicial authority, controls.
Separation of powers: Courts may not expand their revocation power by private agreement with litigants.
Judicial restraint: Courts avoid constitutional rulings when statutory text resolves the dispute, and they eschew advisory opinions.

By drawing a firm line around the procedural prerequisites for revoking probation, the Georgia Supreme Court has not only resolved a pressing issue in Greathouse’s own case but also set a durable precedent that will shape probation revocation practice and plea negotiation strategies across the state for years to come.

Non‑Waivable Statutory Preconditions for Probation Revocation in Georgia: Commentary on State v. Greathouse (Ga. 2025)