concurring in result.
Although the status as a probationer is not a right, once granted, it may not be revoked upon mere whim or caprice. Revocation of probation must rest upon violation of a term of the probation. A probationer is entitled to due process notice of the claimed violation of his probation. Black v. Romano (1985) 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636. The allegations must be sufficiently specific so as to permit the probationer to anticipate the evidence against him and prepare a defense. See McGee v. State (1986) Ind., 495 N.E.2d 537. If the alleged violation is that the probationer has been convicted of a crime, a conviction should be established. See Myers v. State (1987) Ind., 510 N.E.2d 1360. It should not be an unconstitutional or otherwise invalid conviction.
The majority opinion concludes that a probation may be revoked upon a wholly invalid conviction because Burgett v. Texas (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, is applicable only in guilt determination or sentence enhancement situations. In my estimation an invalid conviction should not be cognizable for any purpose.1
Furthermore, I am unable to concur in the alternative rationale for affirmance, i.e., that probation was permissibly revoked because the State established that the prohibited conduct occurred, and did not have to establish that a conviction resulted. Other than the recitation of a conviction, there is no evidence that the act of public intoxication took place. The conduct was therefore not established.
Be that as it may, I fully agree with footnote 1 of the majority opinion. Sims has not demonstrated that his public intoxication conviction was improper. He has not controverted the docket entry with respect to waiver of the right to counsel. The docket entry is regular upon its face and is adequate to validate the conviction. Edwards v. State (1985) Ind., 479 N.E.2d 541.
My concurrence rests solely upon the fact that Sims has not demonstrated that his prior conviction was invalid.
. In Loper v. Beto (1972) 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374, the Supreme Court held that an invalid conviction could not be used to impeach the credibility of the defendant. If Loper retains any viability (in Lewis v. State (1980) 445 U.S. 55, 100 S.Ct.915, 63 L.Ed.2d 198, the majority accepted the Loper holding), it militates against use of an invalid conviction for far more drastic consequences than impeachment of credibility.