Wimpey v. State

676 S.E.2d 831, 297 Ga. App. 182, 2009 Fulton County D. Rep. 1317, 2009 Ga. App. LEXIS 402

• Court: Court of Appeals of Georgia
• Decided: March 30, 2009
• Docket: A08A2283
• Status: Published

Opinions

BLACKBURN, Presiding Judge.

On January 6, 2004, Lauren Wimpey pled guilty to a single count of theft by taking (OCGA § 16-8-2) for stealing money from her employer, Sunset Land, Inc. d/b/a Central Feed and Seed, between January 1, 2000 and April 15, 2002. On the same date, the trial court sentenced Wimpey to 15 years probation under the First Offender Act (OCGA § 42-8-60) and ordered her to pay $120,163.40 in restitution to Central Feed and Seed and to make monthly payments of $700 toward this amount. Thereafter, on February 11, 2004, the trial court issued a written restitution order providing for the same restitution amount and payment schedule. Wimpey appeals from the restitution order, arguing that the trial court erred in failing to consider the factors set forth in OCGA § 17-14-10 and failing to issue written findings as to each of these factors. Finding that Wimpey failed to respond to the court’s inquiry as to her financial status, we affirm the trial court’s ruling in this matter. See OCGA § 17-14-10 (a) (3).

OCGA § 17-14-7 provides in part:

The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the state. The burden of demonstrating the financial resources of the offender or person being ordered to pay restitution and the financial needs Of his or her dependents shall be on the offender or person being ordered to pay restitution. The burden of demonstrating such other matters as the ordering authority deems appropriate shall be upon the party designated by the ordering authority as justice requires.

After the State has borne its burden of showing the amount of the victim’s loss, OCGA § 17-14-7 (b) places the burden of showing the defendant’s resources and expenses on the defendant: “The burden of demonstrating the financial resources of the offender or person being ordered to pay restitution and the financial needs of his or her dependents shall be on the offender or person being ordered to pay restitution.” See Cheeks v. State.1

Here, defendant Wimpey chose not to meet this burden. Wimpey pled guilty to the charge of theft by taking and presented herself for sentencing. The court accepted the parties’ recommendation of 15 years probation and the parties’ recommendation that the court determine a fine and restitution. After the court determined the amount of damages to the victim and sua sponte inquired into Wimpey’s income and number of dependents, the following colloquy occurred:

THE COURT: Yes. Well, the Defendant has a right to offer her own restitution plan. Does she have any suggestion to the Court about how she would do this?

MR. MORRIS [DEFENSE COUNSEL]: We had spoken about it. I’d let Ms. Wimpey address the Court as to what her expenses are and how she could go about paying the restitution.

THE COURT: Go ahead.

MR. MORRIS: Did you have any — the way we had talked, how would you go about paying the amount of restitution? Do you have any guidelines or any suggestions as to how he could order you to repay this amount of restitution?

THE DEFENDANT: I would just have to make payments over the course of the time.

(Emphasis supplied.)

That was the totality of Wimpey’s presentation regarding her expenses, even though the Court had expressly directed her and her counsel to “go ahead” with regard to presenting evidence on the matter. Recognizing the inadequacy of this presentation, Wimpey’s counsel admitted, apparently to himself: “I almost could have prepared an expense affidavit. That would have helped out. Maybe we should do that.” In other words, Wimpey’s counsel realized that they were making a poor presentation and seemed to be muttering to himself that maybe they should do a better job. He did not, however, request an extension of time to do so, nor did he in any way ask for a continuance so that he could gather or present more evidence.

Based on this meager evidence, the court announced that it was intending to order that half of her monthly income, which half would be about $700, go to restitution, unless Wimpey wanted to present additional evidence on the matter. Indeed the court expressly asked Wimpey’s counsel, “[D]o you have anything you want to say on that?” Counsel responded: “Judge, the only thing I can do is defer back to Ms. Wimpey and ask her if that’s still going to allow them to make their house payment and that kind of thing.” Wimpey did not say anything, nor did her counsel indicate that Wimpey was somehow being prevented from doing so. The court again asked if there was anything else, and Wimpey’s counsel only requested that in light of the proposed restitution amount, the court not impose a fine, with which request the court complied. The court a third time asked if there was “anything else before I actually impose sentence,” and Wimpey’s counsel did not indicate that there was. We find no basis for concluding that the trial court ignored her counsel’s efforts to argue that Wimpey had not had a meaningful opportunity to present evidence regarding her financial obligations.

The court could not have been more patient and solicitous in allowing Wimpey the opportunity to present evidence on her expenses. She simply chose not to do so. The transcript does not support the dissent’s assertion that the trial court ignored Wimpey’s counsel’s attempts to raise the issue. We therefore affirm the trial court’s judgment of restitution.

Judgment affirmed.

Smith, P. J., Ellington, Mikell, Adams and Doyle, JJ., concur. Miller, C. J., dissents.

1 Cheeks v. State, 218 Ga. App. 212, 214 (460 SE2d 860) (1995).