Dean v. State

338 S.E.2d 711, 177 Ga. App. 123, 1985 Ga. App. LEXIS 2942
Court of Appeals of Georgia·Decided November 26, 1985·No. 70405·Published·Cited by 48 cases

Opinions

Pope, Judge.

On February 27, 1980 defendant Lynn Wayne Dean entered a guilty plea to a charge of burglary and was “sentenced” to the penitentiary for five years, but was given five years probation under the First Offender Act (OCGA § 42-8-60). Due to a conviction on August 22, 1984 for burglary, the court entered an adjudication of guilt on [124] October 23, 1984 pursuant to OCGA § 42-8-60 (b), finding that defendant had violated the terms of probation. Defendant was sentenced to ten years imprisonment for the 1980 burglary charge, effective from the date of adjudication. We granted defendant’s discretionary appeal.

1. We turn first to the procedural issue of whether the revocation of “first-offender” probation is controlled by the discretionary appeal procedure of OCGA § 5-6-35. The statute applies to “orders revoking probation,” making no distinction between “first-offender” probation (see OCGA § 42-8-60 et seq.) and probation otherwise provided for in criminal cases (see OCGA § 42-8-34). The purpose of the discretionary appeal statute is in part to reduce the tremendous case load of the state’s appellate courts. Applying the plain meaning of OCGA § 5-6-35 (a) (5) in this case will obviate any need for a party to follow the dissent’s suggestion to file duplicitous appeals. Nevertheless, the dissent espouses the view that revocation of first-offender probation is, in effect, exempt from the discretionary appeal process. In support of this view, the dissent asserts that an appeal from the revocation of first-offender probation “is more than a mere ‘order revoking probation.’ It is actually an appeal also from the judgment of guilt itself as well as from the new sentence.” No authority is cited for this proposition.

OCGA § 42-8-64 provides: “A defendant sentenced pursuant to this article shall have the right to appeal in the same manner and with the same scope and same effect as if a judgment of conviction had been entered and appealed from.” The term “sentence” in legal parlance is generally confined in meaning to be “[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution.....” Black’s Law Dictionary 1222 (5th ed. 1979). That is, a “sentence” is the final judgment in a criminal case which usually forms the predicate for appellate review. See generally OCGA § 5-6-34 (a) (1); Phillips v. State, 153 Ga. App. 410 (265 SE2d 293) (1980). However, we cannot accept the dissent’s premise that the General Assembly’s use of the word “sentence” in OCGA § 42-8-64 limits a criminal defendant’s right to appeal his conviction to those situations in which he has been found to have violated the terms of his first-offender status. In enacting the First Offender Act the General Assembly expressly intended “to preserve the right to an appeal.” Ga. L. 1968, pp. 324, 325. Viewed in this light, it is clear that OCGA § 42-8-64 is intended to provide a defendant a direct appeal from his conviction upon the imposition of first-offender status (a “sentence” if you will), notwithstanding the absence of a formal and final “adjudication of guilt.” See Brainard v. State, 246 Ga. 586 (272 SE2d 683) (1980). See also Davenport v. State, 136 Ga. App. 913 (2) (222 SE2d 644) (1975). In other words, first-offender status [125] takes the place of a “sentence” and once imposed upon a criminal defendant, his case assumes the mantle of finality necessary to bring a direct appeal of his conviction pursuant to OCGA § 5-6-34 (a) (1). See, e.g., Dailey v. State, 136 Ga. App. 866 (222 SE2d 682) (1975). Since defendant in this case has followed the proper procedure to obtain appellate review of the revocation of his first-offender probation by petitioning this court for discretionary review, and since the court has granted same, we now turn to the merits of his appeal.

2. Defendant first challenges the trial court’s conclusion that his guilty plea to the 1980 burglary was given intelligently and voluntarily. Once the question of the validity of a guilty plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. “The [SJtate may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” Roberts v. Greenway, 233 Ga. 473, 475 (211 SE2d 764) (1975).

Free access — add to your briefcase to read the full text and ask questions with AI

Dean v. State, 338 S.E.2d 711, 177 Ga. App. 123, 1985 Ga. App. LEXIS 2942 (Ga. Ct. App. 1985).

338 S.E.2d 711 (Dean v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Howard v. State
902 S.E.2d 551 (Supreme Court of Georgia, 2024)
Steven Oneal Canady v. State
Court of Appeals of Georgia, 2024
Samier Hadee Townsend v. State
Court of Appeals of Georgia, 2024
Bret Kevin Bolish v. State
Court of Appeals of Georgia, 2022
Roscoe Allen v. State
Court of Appeals of Georgia, 2021
Dewayne Deon Thomas v. State
Court of Appeals of Georgia, 2021
Tyreek Thomas v. State
Court of Appeals of Georgia, 2020
Marcus Lamar Brown v. State
Court of Appeals of Georgia, 2020
Bradley Alexander Gillispie v. State
Court of Appeals of Georgia, 2019
Jimmy Lee Jones v. State
Court of Appeals of Georgia, 2013
Jones v. State
745 S.E.2d 1 (Court of Appeals of Georgia, 2013)
Kristopher Summerford v. State
Court of Appeals of Georgia, 2012
Summerford v. State
728 S.E.2d 829 (Court of Appeals of Georgia, 2012)
OTUWA v. State
693 S.E.2d 610 (Court of Appeals of Georgia, 2010)
Moore v. State
684 S.E.2d 605 (Supreme Court of Georgia, 2009)
United States v. Timothy Miller
434 F.3d 820 (Sixth Circuit, 2006)
United States v. Miller
Sixth Circuit, 2006
Andrews v. State
623 S.E.2d 247 (Court of Appeals of Georgia, 2005)
Shaheed v. State
559 S.E.2d 466 (Supreme Court of Georgia, 2002)
Franklin E. Hagins v. United States
267 F.3d 1202 (Eleventh Circuit, 2001)