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State v. Legero6/25/2004
of guilt and sentencing. I agree with the majority that this would be an unreasonable result. However, I do not agree that this is the result which is required under the statute.
"Trial" is defined as: "A formal judicial examination of evidence and determination of legal claims in an adversary proceeding." Black's Law Dictionary 1510 (7th ed. 1999). The hearing on a revocation of probation requires an evidentiary hearing, a determination of legal claims, and is an adversarial proceeding. Although the procedure provided for in 22-3609a is written in a manner sufficiently broad to accommodate an appeal after the original sentencing following the conviction, nothing in the procedure restricts application of general principles of appellate procedure, allowing an appeal of only some questions or aspects of a judgment, as long as that judgment is final. The trial de novo would be limited to the judgment from which the appeal was taken -- in this case, the judgment that Legero had violated his probation and his probation should be revoked.
For these reasons and others stated in the majority opinion of the Court of Appeals, I would affirm the Court of Appeals and reverse the district court.
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