Cheeks v. State

Court of Appeals of Georgia

Cheeks v. State

460 S.E.2d 860, 218 Ga. App. 212, 95 Fulton County D. Rep. 2591, 1995 Ga. App. LEXIS 705

CourtCourt of Appeals of Georgia

DecidedJuly 14, 1995

DocketA95A0478

StatusPublished

Cited by10 cases

This text of 460 S.E.2d 860 (Cheeks v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cheeks v. State, 460 S.E.2d 860, 218 Ga. App. 212, 95 Fulton County D. Rep. 2591, 1995 Ga. App. LEXIS 705 (Ga. Ct. App. 1995).

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Opinions

Andrews, Judge.

Cheeks pled guilty to theft by taking of lottery tickets from the convenience store where she was formerly employed. She requested and received a restitution hearing. At the hearing, she offered no evidence of her present financial condition or her future earning capacity. Based on the evidence presented at the hearing, the trial court imposed restitution in the amount of $4,907. Cheeks now seeks a second restitution hearing based on the trial court’s failure to consider [213]*213her ability to pay.

Cheeks contends that the trial court failed to “hear any evidence” on the factors pertaining to her ability to pay restitution. However, the only reason the trial court failed to “hear any evidence” on Cheeks’ ability to pay is that Cheeks failed to provide any such evidence. Cheeks would place an affirmative duty on the trial court to discover evidence relating to her ability to pay, evidence which only she was in the position to provide, simply because she failed to provide the evidence on her own behalf when she had the opportunity.

Cheeks claims that the transcript and record of this case “clearly demonstrate that all factors were not considered, nor mentioned” by the trial court. However, the trial court’s restitution order clearly states that the court considered: “the present financial condition of the Defendant and h[er] dependents, the probable future earning capacity of the Defendant and h[er] dependents, the amount of damages involved, the goals of restitution to the victim and rehabilitation to the Defendant, the restitution previously made, if any, and the period of time during which the restitution order will be in effect.” These are the factors enumerated in OCGA § 17-14-10. Thus, the trial court’s order demonstrates that the court properly considered all of the factors it was required to consider.

Cheeks further contends that the trial court failed to make findings of fact addressing the OCGA § 17-14-10 factors and that this failure entitles Cheeks to a second restitution hearing. However, the transcript and the record show that the trial court heard the. State’s evidence on the factors for which it could provide evidence, and the restitution order demonstrates the court’s findings. Cheeks’ failure to provide evidence to the trial court of her present financial condition and her probable future earning capacity resulted in a lack of evidence on those factors, but it does not follow that the trial court did not properly consider the factors enumerated in OCGA § 17-14-10 and make findings of fact related to those factors. While Cheeks’ failure to provide this evidence may certainly have affected the court’s findings of fact, it is not error for the trial court to make findings of fact based on the evidence before it without the defendant’s assistance if the defendant has been given the opportunity to provide evidence on her own behalf and fails to do so. That is precisely what occurred in this case.

In order for a trial court to impose restitution, three things are required: a restitution hearing, consideration of the factors enumerated in OCGA § 17-14-10, and findings of fact. Cannon v. State, 246 Ga. 754 (272 SE2d 709) (1980); Slater v. State, 209 Ga. App. 723 (434 SE2d 547) (1993); Williams v. State, 180 Ga. App. 854 (350 SE2d 837) (1986). Here, Cheeks received a restitution hearing, the trial court considered all of the required factors, and the court made find[214]*214ings based on the evidence presented. Cheeks would place an affirmative duty on the trial court to discover evidence pertaining to her ability to pay, even though she had the opportunity to provide evidence on her own behalf and failed to do so. This position is untenable. Because Cheeks requested the restitution hearing in which she had the opportunity to provide evidence of her ability to pay, yet still chose not to present any evidence, her silence is deemed a waiver. See Westmoreland v. State, 192 Ga. App. 173, 177 (384 SE2d 249) (1989). A defendant is not entitled to additional restitution hearings ad infinitum merely because, when given the opportunity, she chooses not to provide any evidence on her own behalf.

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Beasley, C. J., McMurray, P. J., Blackburn and Smith, JJ., dissent.

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Andrews, Judge.

Cheeks pled guilty to theft by taking of lottery tickets from the convenience store where she was formerly employed. She requested and received a restitution hearing. At the hearing, she offered no evidence of her present financial condition or her future earning capacity. Based on the evidence presented at the hearing, the trial court imposed restitution in the amount of $4,907. Cheeks now seeks a second restitution hearing based on the trial court’s failure to consider [213]*213her ability to pay.

Cheeks contends that the trial court failed to “hear any evidence” on the factors pertaining to her ability to pay restitution. However, the only reason the trial court failed to “hear any evidence” on Cheeks’ ability to pay is that Cheeks failed to provide any such evidence. Cheeks would place an affirmative duty on the trial court to discover evidence relating to her ability to pay, evidence which only she was in the position to provide, simply because she failed to provide the evidence on her own behalf when she had the opportunity.

Cheeks claims that the transcript and record of this case “clearly demonstrate that all factors were not considered, nor mentioned” by the trial court. However, the trial court’s restitution order clearly states that the court considered: “the present financial condition of the Defendant and h[er] dependents, the probable future earning capacity of the Defendant and h[er] dependents, the amount of damages involved, the goals of restitution to the victim and rehabilitation to the Defendant, the restitution previously made, if any, and the period of time during which the restitution order will be in effect.” These are the factors enumerated in OCGA § 17-14-10. Thus, the trial court’s order demonstrates that the court properly considered all of the factors it was required to consider.

Cheeks further contends that the trial court failed to make findings of fact addressing the OCGA § 17-14-10 factors and that this failure entitles Cheeks to a second restitution hearing. However, the transcript and the record show that the trial court heard the. State’s evidence on the factors for which it could provide evidence, and the restitution order demonstrates the court’s findings. Cheeks’ failure to provide evidence to the trial court of her present financial condition and her probable future earning capacity resulted in a lack of evidence on those factors, but it does not follow that the trial court did not properly consider the factors enumerated in OCGA § 17-14-10 and make findings of fact related to those factors. While Cheeks’ failure to provide this evidence may certainly have affected the court’s findings of fact, it is not error for the trial court to make findings of fact based on the evidence before it without the defendant’s assistance if the defendant has been given the opportunity to provide evidence on her own behalf and fails to do so. That is precisely what occurred in this case.

In order for a trial court to impose restitution, three things are required: a restitution hearing, consideration of the factors enumerated in OCGA § 17-14-10, and findings of fact. Cannon v. State, 246 Ga. 754 (272 SE2d 709) (1980); Slater v. State, 209 Ga. App. 723 (434 SE2d 547) (1993); Williams v. State, 180 Ga. App. 854 (350 SE2d 837) (1986). Here, Cheeks received a restitution hearing, the trial court considered all of the required factors, and the court made find[214]*214ings based on the evidence presented. Cheeks would place an affirmative duty on the trial court to discover evidence pertaining to her ability to pay, even though she had the opportunity to provide evidence on her own behalf and failed to do so. This position is untenable. Because Cheeks requested the restitution hearing in which she had the opportunity to provide evidence of her ability to pay, yet still chose not to present any evidence, her silence is deemed a waiver. See Westmoreland v. State, 192 Ga. App. 173, 177 (384 SE2d 249) (1989). A defendant is not entitled to additional restitution hearings ad infinitum merely because, when given the opportunity, she chooses not to provide any evidence on her own behalf.

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Beasley, C. J., McMurray, P. J., Blackburn and Smith, JJ., dissent.

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Bluebook (online)

460 S.E.2d 860, 218 Ga. App. 212, 95 Fulton County D. Rep. 2591, 1995 Ga. App. LEXIS 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheeks-v-state-gactapp-1995.

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