Pestana v. the State

762 S.E.2d 178, 328 Ga. App. 454
CourtCourt of Appeals of Georgia
DecidedJuly 31, 2014
DocketA14A0635
StatusPublished
Cited by3 cases

This text of 762 S.E.2d 178 (Pestana v. the 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
Pestana v. the State, 762 S.E.2d 178, 328 Ga. App. 454 (Ga. Ct. App. 2014).

Opinions

DOYLE, Presiding Judge.

In November 2009, James Andrews Pestaña entered a negotiated plea of guilty to aggravated assault1 and was sentenced under the First Offender Act2 to confinement for a period of ten years, which sentence could be served on probation. In July 2013, the superior court signed an order of discharge after Pestana’s probation officer filed a petition for discharge indicating that Pestaña had fulfilled the terms of his probation. The court subsequently rescinded the discharge order and reinstated Pestana’s original sentence, and Pestaña appeals that ruling. Because the superior court has plenary power to correct its own mistaken ruling during the same term of court, we affirm.

The record shows that Pestaña was charged with two counts of aggravated assault with a deadly weapon, a handgun, arising from a single incident between Pestaña and two alleged victims, Gary Berrong and Scott Albach.3 The incident was part of an escalating neighborhood dispute allegedly involving roving ducks, a “mooning” incident, and land disturbance causing water on a roadway. Pestaña had become estranged with certain neighbors, and in June 2009, after several confrontations, Berrong and Albach stopped their truck in the roadway and began taking photographs of Pestaña for a pending lawsuit while he mowed his grass approximately 50 feet away. Pestaña, who almost always carried a firearm,4 pulled a handgun out of his pocket, pointed it at the men, and “told them they needed to keep going.” Berrong and Albach immediately complied.

Based on this incident, Pestaña was arrested and charged with two counts of aggravated assault. In November 2009, Pestaña entered a negotiated plea of guilty to count one (assaulting Berrong with a handgun), and the State agreed to nolle prosequi count two (assaulting Albach with a handgun). In accordance with the plea deal, Pestaña was “sentenced to confinement for a period [of] . . . [ten] years,” noting that the sentence could be served on probation.5 The [455]*455terms of his probation included conditions that he not possess any firearms nor have direct or indirect contact with Berrong, Albach, or their families.

On July 3, 2013, a probation officer filed a petition for discharge noting that Pestaña was placed on probation for ten years in November 2009, but also stating that he was eligible for discharge “by having fulfilled the terms of said probation.” The district attorney’s office was not notified of the petition for discharge, nor were the victims, so they did not participate in the discharge process. On July 10, 2013, the superior court signed an order of discharge, which order was entered on July 18, 2013.

Upon learning of the discharge, the State filed on September 5, 2013, a motion for reconsideration stating its lack of notice and the failure to notify any victims in accordance with OCGA § 17-17-1 et seq. The superior court held a hearing at which the State, Pestaña, Berrong, and Albach were present. At the hearing, the State explained that the original petition for discharge was apparently mistakenly generated due to a probation office data entry error that created a 2003 conviction date rather than the correct 2009 conviction date. The State did not introduce evidence to this effect, but Pestana’s counsel also stated at the hearing that “[ojbviously there must have been a miscalculation to put his conviction date down wrong.” Under that erroneous scenario, in 2013, the ten-year sentence would have ended, and Pestaña would have been eligible for discharge as successfully completing his probation term. The discharge petition perpetuated this data entry error by accurately stating the ten-year sentence but incorrectly stating that Pestaña had “fulfilled the terms of said probation” in 2013 — after less than four years. Thus, the discharge petition was not couched in terms of early release prior to the end of the probation period, but instead it was phrased to reflect fulfillment of the term of probation. Despite the apparent error, the discharge petition was generated and submitted to the superior court.

The State also explained that the district attorney’s office had not been notified of the discharge petition, and therefore, neither had any of the victims. The State argued that had it been notified, it would have been able to comply with the notification provisions of the Crime Victims’ Bill of Rights under OCGA § 17-17-1 et seq. Albach testified [456]*456at the hearing that he was afraid of Pestaña, whom he characterized as “unstable” and well-armed.6 After hearing the evidence and argument, the superior court granted the State’s motion and reinstated Pestana’s sentence,7 leaving open the option that it could entertain another discharge petition in the future. Pestaña now appeals the reinstatement of his sentence.

1. Pestaña first argues that the superior court erred because the State’s motion for reconsideration, filed 49 days after the court’s discharge order was entered, was untimely. Because of the unusual procedural posture of the case, Pestaña points to no specific statutory provision explicitly requiring the State’s motion to be filed within a certain date, instead arguing that the motion was akin to a motion for new trial or an appeal, both of which must be filed within 30 days.8 But it appears from the record that the State did not have notice of the discharge order before 30 days would have elapsed. Under these unique factual circumstances, the State sought to invoke the superior court’s authority over its orders and judgments issued within the same term of court.9 The superior court explicitly proceeded under this authority in its reinstatement order; therefore, under these facts, the motion was functionally like a motion in arrest of judgment, which “must be made during the term at which the judgment was obtained.”10 Also, the motion arose out of a defect appearing on the face of the discharge petition and order.* 11 Therefore, the State’s failure to take action within thirty days of the discharge order was not fatal to its motion filed in the same term12 upon becoming aware of the discharge.13

[457]*4572. Pestaña next argues that any failure to notify the victims or allow them to participate in the proceedings did not require reinstatement of his sentence. It is true that, as Pestaña points out, the victim notification provisions at OCGA § 17-17-1 et seq. are typically required “wherever practicable,”14 “whenever possible,”15 or “to the extent possible,”16 so lack of notification does not necessarily reflect an error requiring correction by the trial court. The State’s appellate brief likewise focuses on the importance of such notice, which serves the laudable policy of allowing crime victims to be aware of the proceedings involving the accused.17

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Cite This Page — Counsel Stack

Bluebook (online)
762 S.E.2d 178, 328 Ga. App. 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pestana-v-the-state-gactapp-2014.