Glover v. State

521 S.E.2d 84, 239 Ga. App. 155

• Court: Court of Appeals of Georgia
• Decided: November 19, 1999
• Docket: A99A0389
• Status: Published

Opinions

Ruffin, Judge.

John Glover challenges the sentence imposed by the trial court upon the revocation of his probation, alleging that the sentence is longer than allowed under OCGA § 42-8-34.1 (b). As explained below, we find that the trial court acted within its discretion, and we affirm.

Glover pled guilty in 1989 to multiple counts of child molestation and related charges stemming from his repeated sexual abuse of a minor under 14 years of age. Glover was sentenced to thirty years, with seven years to be served in prison and the remainder to be probated. In addition to general conditions of probation, the trial court imposed seven special conditions of probation, including two conditions limiting Glover’s contact with minor children and one condition requiring Glover to attend counseling for sexual deviancy. Glover was released from prison in 1996 after serving seven years. In 1997, Glover was arrested for making contact with a four-year-old girl at church, in violation of the conditions of his probation. The Department of Corrections filed a petition to modify or revoke Glover’s probation, charging him with violating the special conditions of his probation restricting contact with minors, as well as several of the general conditions.

Following a hearing, the trial court found that Glover had violated three of the special conditions of his probation by making direct contact with a minor, engaging in volunteer work that brought him into contact with a minor, and failing to attend counseling.¹ The trial court revoked Glover’s original sentence and ordered him to serve ten years, with the balance of his original sentence to be probated.

Glover filed a motion to vacate his sentence, arguing that under OCGA § 42-8-34.1 (b) the trial court was only authorized to revoke a maximum of two years of his probation. The trial court denied Glover’s motion, and we granted his application for discretionary appeal. On appeal, Glover challenges only the length of his sentence, not the revocation itself.

1. OCGA § 42-8-34.1 governs the length of detention permitted on a probation revocation. Lawrence v. State, 228 Ga. App. 745, 747 (492 SE2d 727) (1997). Upon proof that the defendant has violated any provision of his probation “other than by commission of a new felony offense,” the trial court “may revoke the balance of probation or not more than two years in confinement, whichever is less.” OCGA § 42-8-34.1 (b). If, however, the defendant has violated his probation by

the commission of a felony offense or the violation of a special condition imposed pursuant to this Code section, notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation.

(Emphasis supplied.) OCGA § 42-8-34.1 (c). Although the trial court found that Glover violated the special conditions of his probation, Glover contends that OCGA § 42-8-34.1 (c) does not apply here because these special conditions were not “imposed pursuant to” OCGA § 42-8-34.1. Thus, Glover argues that the applicable section is OCGA § 42-8-34.1 (b), which limits Glover’s detention to two years.

There is scant authority interpreting OCGA § 42-8-34.1 (c)’s reference to “a special condition imposed pursuant to this Code section.” The Supreme Court of Georgia first addressed § 42-8-34.1 (c) in Gear-inger v. Lee, 266 Ga. 167 (465 SE2d 440) (1996), which involved a probation revocation based on the defendant’s violation of a special condition of probation. The defendant originally was sentenced to five years of probation on a theft conviction and ten years of probation on a drug conviction, but his probation was “thereafter modified and he was remanded to a detention center by an order that set forth as a ‘Special Condition of his probation,’ ” the requirement that he obey all rules of the detention center. Id. at 168. The defendant’s probation was thereafter revoked based on his violation of four disciplinary rules at the detention center, none of which involved the commission of a felony. The trial court ordered the defendant to serve the remaining time on his sentence for theft in prison, plus five years of his sentence for drug possession, with the balance of the drug sentence to be served on probation.

The Supreme Court ruled that the defendant’s disciplinary infractions “constitute [d] a ‘violation of a special condition’ of his probation,” and thus OCGA § 42-8-34.1 (c) authorized the trial court to revoke up to the balance of the defendant’s probation. Id. at 169 (1). The Supreme Court did not address the effect of § 42-8-34.1 (c)’s requirement that a special condition be “imposed pursuant to this Code section” and did not discuss whether the special conditions at issue in Gearinger were, in fact, “imposed pursuant to” OCGA § 42-8-34.1. Rather, the Supreme Court broadly stated, without qualification, that “where . . . the violation of probation results solely from infraction of a special condition and not from commission of a felony offense,” the trial court may revoke up to the balance of the defendant’s probation. (Emphasis supplied.) Id. at 170.

The Supreme Court next construed OCGA § 42-8-34.1 (c) in Mancille c. Hampton, 266 Ga. 857 (471 SE2d 872) (1996), in which the defendant’s probation was revoked because he committed a felony and violated a special condition of his probation by failing to pay court-imposed fines. Under those circumstances, the Supreme Court held that § 42-8-34.1 (c) authorized the trial court to revoke the balance of the defendant’s probated sentence (twenty-three years), rather than the maximum sentence for his felony (ten years). Id. at 859 (2). In reaching this result, the Supreme Court restated its holding in Gearinger that “where probation is revoked solely for the violation of a special condition, and not for a felony offense . . . the revocation court is authorized by section 42-8-34.1 (c) to revoke no more than the balance of a defendant’s probation.” (Punctuation omitted.) Id. Once again, the Supreme Court ignored § 42-8-34.1 (c)’s qualifying language, “imposed pursuant to this Code section,” making no distinction among different types of special conditions.

Thus, in Gearinger and Manville, the Supreme Court implicitly recognized that the phrase “imposed pursuant to this Code section” is meaningless, as § 42-8-34.1 does not authorize the imposition of any special conditions of probation. Rather, as we recently explained in Williams v. State, 234 Ga. App. 37, 38 (505 SE2d 816) (1998), that authority originates elsewhere:

A trial judge is expressly authorized by OCGA § 17-10-1 (a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.

(Citations, punctuation and emphasis omitted.) See also Staley v. State, 233 Ga. App. 597, 598 (505 SE2d 491) (1998) (OCGA § 17-10-1 (a) (1) “has been construed to give sentencing judges broad discretion in fashioning appropriate conditions of probation, tailored to the individual defendant’s circumstances as well as the interests of society and the victim”); Penaherrera v. State, 211 Ga. App. 162, 163 (1) (438 SE2d 661) (1993) (“[a]ny ‘reasonable condition’ may be imposed”); Ballenger v. State, 210 Ga. App. 627, 628 (1) (436 SE2(l 793) (1993).

Following the Supreme Court’s decisions in Gearinger and Manville, this Court, in two subsequent cases, has attempted to give meaning to § 42-8-34.1 (c)’s phrase “imposed pursuant to this Code section.” See Lawrence v. State, 228 Ga. App. 745 (492 SE2d 727) (1997); Dunlap v. State, 231 Ga. App. 83 (497 SE2d 640) (1998). In Lawrence, the defendant’s probation was revoked for the commission of two misdemeanor batteries and failure to pay fines ordered as a special condition of probation. The trial court sentenced the defendant to serve the balance of his sentence, which was four-and-one-half years, based on the commission of the batteries. This Court vacated the sentence on the ground that § 42-8-34.1 (b) allowed the trial court to revoke a maximum of two years of the defendant’s sentence for the misdemeanor batteries. However, the Court instructed that, pursuant to § 42-8-34.1 (c), the trial court could revoke the balance of the defendant’s sentence based on his nonpayment of fines, because the payment of fines was a special condition “imposed pursuant to this Code section.” Id. The Court apparently based this conclusion on § 42-8-34.1 (d)’s reference to “[t]he payment of restitution or reparation, costs, or fines.”

However, § 42-8-34.1 (d) does not authorize the imposition of fines as a special condition of probation; it merely states that the court may require any fines “ordered by the court” to be paid in one lump sum or in periodic installments. As noted above, other Code sections provide the statutory authority for imposition of special conditions. In particular, the imposition of fines is specifically authorized by OCGA §§ 17-10-8 and 42-8-34 (e). See Whitehead v. State, 207 Ga. App. 891, 892 (2) (429 SE2d 536) (1993); Todd v. State, 172 Ga. App. 231 (1) (323 SE2d 6) (1984). Thus, fines are not “imposed” as a special condition of probation “pursuant to” § 42-8-34.1, despite the fact that they are mentioned in that section.

Moreover, Lawrence noted without explanation that the special condition at issue in Gearinger, the requirement that the defendant comply with the detention center’s disciplinary rules, was “not a special condition ‘imposed pursuant to [OCGA § 42-8-34.1].’” However, our Supreme Court ruled that § 42-8-34.1 (c) governed in Gearinger. Thus, Lawrence essentially ruled that Gearinger was wrongly decided by the Supreme Court, a determination this Court is not authorized to make.

In Dunlap, which is factually similar to this case, the defendant was sentenced to ten years for theft by taking, but the sentence was suspended upon the defendant’s payment of a fine and the condition of banishment from the county. Id. at 82. One week later, the defendant violated the banishment condition, and the trial court ordered him confined for ten years. On appeal, the defendant argued that banishment was not a special condition imposed pursuant to OCGA § 42-8-34.1, and thus only two years of his probation could be revoked pursuant to § 42-8-34.1 (b). Citing Lawrence, this Court agreed and reversed the trial court’s denial of the defendant’s motion to vacate his sentence. Id. at 83-84.

Dunlap did not follow Lawrence exactly, but instead fashioned its own definition of “imposed pursuant to this Code section.” Dunlap noted that § 42-8-34.1 (b) requires the trial court, at any revocation hearing, to consider “alternative [s] to confinement,” including: “community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county.” Id. at 83. According to Dunlap, any special condition imposed at a revocation hearing, as opposed to a condition imposed as part of the original sentence, is “imposed pursuant to” § 42-8-34.1 (b). However, this attempt to give meaning to the phrase “imposed pursuant to this Code section” finds no support in the statutory language. Although subsection (b) directs the trial court to consider certain alternatives to incarceration, the authority for imposing such alternatives as special conditions of probation is found in other statutes, and not in subsection (b). See OCGA §§ 42-8-35.1 through 42-8-35.6.

Further, Dunlap asserted that the special condition in Gearinger was imposed pursuant to § 42-8-34.1 (b) because it was “imposed at the revocation of the defendant’s probation,” rather than as part of the original sentence. Dunlap, supra at 83. Gearinger itself, however, states only that the defendant’s probation was modified; it does not indicate that the modification occurred at a revocation hearing based on a violation of probation, as required by § 42-8-34.1 (b), or that the special condition was imposed as an “alternative to confinement” pursuant to that subsection. See Gearinger, supra at 168.² Trial courts have broad authority to modify the terms of probation “in any manner deemed advisable.” OCGA § 42-8-34 (g); Staley, supra at 599. Hence, we have no basis for assuming that the modification of the defendant’s probation in Gearinger occurred at a revocation hearing as described in § 42-8-34.1 (b). And, even if it did, we cannot assume that that was the basis for Gearinger’s conclusion that § 42-8-34.1 (c) controlled the case — particularly when Gearinger completely failed to address the meaning of the phrase “imposed pursuant to this Code section.” If, as Dunlap suggested, the critical issue is whether the special condition was imposed under the authority of § 42-8-34.1 (b), we believe that the Supreme Court would have included such facts in its analysis.

We are bound by the Supreme Court’s decisions in Gearinger and Manville, which recognized no limitations on the special conditions subject to § 42-8-34.1 (c). It is not the function of this Court to give meaning to language that the Supreme Court has chosen to disregard, or to assume that the two Supreme Court decisions turn on facts not disclosed in that Court’s opinions. Accordingly, we overrule Lawrence and Dunlap to the extent that those cases hold that the phrase “imposed pursuant to this Code section” limits the type of special conditions to which § 42-8-34.1 (c) applies.³

OCGA § 42-8-34.1 (c) governs the revocation of Glover’s probation for violating three of the special conditions of his probation. The trial court was authorized to revoke up to the balance of Glover’s probation (approximately 22 years). See Gearinger, supra at 170. In sentencing Glover to ten years incarceration, with the remainder to be served on probation, the trial court acted well within its discretion. Accordingly, we affirm the trial court’s denial of Glover’s motion to vacate his sentence.

2. The special concurrence notes that OCGA § 42-8-34.1 (b) directs the trial court, in a revocation hearing, to consider the use of certain “alternatives to confinement.” We have held that confinement refers to “imprisonment in a jail or penitentiary, which is primarily punitive,” and that the “alternatives to confinement” are intended to constitute “suitable responses short of revocation of probation.” Penaherrera, supra. Under OCGA § 42-8-34.1 (b), “[i]n the event the court determines that defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.” The special concurrence contends that the trial court determined that Glover did meet the criteria for such alternatives to incarceration, and that the two year limitation set forth in subsection (b) therefore did not apply. This contention is misplaced for several reasons.

First, and most important, the revocation order expressly states that “[t]his Court . . . finds that the Defendant does not satisfy the incarceration alternatives.” The special concurrence dismisses this express finding by noting that the revocation order was “apparently a form drafted by the district attorney’s office.” However, we are aware of no authority holding that an order of a court is to be given less effect if it is drafted by a party, which is in fact a common occurrence. Indeed, we have specifically held that “once the findings [in a proposed order drafted by a party are] adopted by the court, they bec[o]me findings of the court.” Williams v. Stepler, 227 Ga. App. 591, 595-596 (490 SE2d 167) (1997). Accordingly, we see no basis to disregard the trial court’s express finding that Glover was not eligible for alternatives to incarceration.

The special concurrence’s disregard of the trial court’s express finding is based upon its belief that the trial court in fact sentenced Glover to a probation detention center as an alternative to incarceration, and thus must have concluded that Glover was eligible for such alternatives. However, nothing in the trial court’s revocation order supports this assertion. Indeed, nowhere in the revocation order is the phrase “probation detention center” even used. Rather, the order states that

it is . . . ORDERED AND ADJUDGED that the probation provisions in [Glover’s] original sentence be REVOKED in accordance with the law, and the Defendant is hereby required to serve 10 years in a Detention Center or such place as the Director of Corrections or the Sheriff of Cobb County shall direct.

The order further provides that Glover’s probation will be reinstated upon the completion of the ten-year sentence.

The use of probation detention centers as an alternative to incarceration is authorized by OCGA § 42-8-35.4 (a), which states that “[i]n addition to any other terms and conditions of probation . . . the trial judge may require that a defendant. . . shall complete satisfactorily, as a condition of. . . probation, a program of confinement in a probation detention center.” Although the trial court’s order included the generic term “detention center” in describing possible places where Glover might be incarcerated, nothing in the order suggests that the trial court was in fact imposing a special condition of probation requiring Glover to serve a period of confinement in a statutory “probation detention center.” Indeed, the order did not even require Glover to serve time in any detention center, but ordered that he serve ten years in any place the Director of Corrections or the Cobb County sheriff might select. The fact that Glover was ordered to serve ten years of confinement shows that the trial court did not intend to impose a special condition of probation, but intended to require that Glover be incarcerated for an entire decade. See Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992) (sentence of incarceration “denotes a continuous period of confinement in a jail or penitentiary uninterrupted by periods of freedom”). Compare Penaherrera, supra (90 to 270-day period in probation detention center constitutes alternative to incarceration). Although the special concurrence notes that Glover for a time was held in the Cobb County Adult Detention Facility, it appears that this is simply the county jail where Glover was held after being arrested for the probation violations and pending the revocation hearing. Moreover, there is no indication in the record that the Cobb County Adult Detention Facility is, in fact, a statutory “probation detention center” or that all persons confined there are serving periods of confinement as conditions of probation. Finally, as authorized by the trial court’s revocation order, Glover has since been transferred to a state penitentiary, which is undoubtedly a place of incarceration.⁴

Under all of these circumstances, and especially in light of the trial court’s express finding that Glover was not eligible for any alternatives to incarceration, the revocation order cannot be construed as anything other than an order that Glover be incarcerated for a period of ten years in any place the Director of Corrections or Cobb County sheriff might select. Accordingly, we cannot rely on OCGA § 42-8-34.1 (b) as a basis for upholding the ten-year revocation, but must rely on OCGA § 42-8-34.1 (c) as discussed in Division l.* ⁵

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Andrews, P. J., Smith, Barnes, Miller, Ellington and Phipps, JJ, concur. Blackburn, P. J., and Eldridge, J., concur specially.

1 The trial court also found that Glover violated three general conditions of his probation by failing to report to his probation officer, moving without notifying his probation officer, and failing to work faithfully at suitable employment.

2 The special concurrence emphasizes that the defendant in Gearinger was “remanded to a detention center” following the modification of his probation. Gearinger does not state, however, that this detention center was a probation detention center of the sort contemplated by OCGA §§ 42-8-34.1 (b) and 42-8-35.4.

3 We note that one judge wrote a special concurrence in Lawrence. However, the special concurrence specifically states that it agrees with the majority’s analysis of the error made by the trial court and disagrees only with the direction to the trial court on remand. Lawrence, supra at 748 (Smith, J., concurring specially). To the extent that Lawrence constitutes binding precedent on this issue, it must be overruled. See Court of Appeals Rule 33 (a).

4 The special concurrence states that there is no evidence Glover is currently being held in a penitentiary. However, nowhere in its brief does the State contradict Glover’s factual statement that he is currently being so incarcerated. Accordingly, pursuant to Court of Appeals Rule 27 (b) (1), “appellant’s statement of facts may be acepted by this Court as true.” Moreover, on June 30, 1998, the trial court entered an order stating that “[i]t has been represented to the Court that [Glover] is serving a sentence of confinement at the Phillips State Prison in Buford, Georgia” and directing that Glover be produced for a hearing.

5 The special concurrence states that “Glover contends that the court’s otherwise proper ten-year revocation is now ‘illegal,’ because he is no longer serving it in an ‘alternative to confinement.’ ” However, nowhere in his appellate brief does Glover assert that the trial court’s,ten-year revocation was “otherwise proper” or that it became illegal only upon his transfer to a state correctional facility.