Hunter v. Dean, 32401

• Decision Date: 28 November 1977
• Docket Number: No. 32401,32401
• Citation: 240 Ga. 214,239 S.E.2d 791
• Court: Georgia Supreme Court
• Parties: Jacqueline E. HUNTER v. Gerald Wallace DEAN, Sheriff, et al.

Page 791

239 S.E.2d 791

240 Ga. 214

Jacqueline E. HUNTER v. Gerald Wallace DEAN, Sheriff, et al.

No. 32401.

Supreme Court of Georgia.

Nov. 28, 1977.

C. Michael Abbott, Atlanta, for appellant.

John R. Irwin, Dist. Atty., Dawson, Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellees.

MARSHALL, Justice.

This appeal is from the denial of a petition for writ of habeas corpus by the Superior Court of Terrell County. The appeal was granted to consider whether the probation of a jail sentence may constitutionally be conditioned upon the payment of a fine in a lump sum when the defendant is indigent and unable to make immediate payment of the fine. We affirm the trial court.

Petitioner, Jacquelyn Hunter, and a co-defendant both pled guilty to burglary and were sentenced to two years in the penitentiary. The sentence was to be probated upon payment of a fine of $165. The co-defendant paid the fine and his sentence was probated. Petitioner was unable to pay the entire amount in a lump sum. She was incarcerated.

Petitioner argues that a trilogy of Supreme Court cases Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970), and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) mandates the conclusion that it is unconstitutional to subject a defendant to imprisonment solely because the defendant is financially unable to pay a fine immediately in a lump sum. The petitioner points out that this view was adopted by the United States Court of Appeals for the Fifth Circuit in Barnett v. Hopper, 548 F.2d 550 (5th Cir. 1977), in granting habeas relief previously denied by this court in Barnett v. Hopper, 234 Ga. 694, 217 S.E.2d 280 (1975). Consequently, we are asked to reexamine our holdings in Calhoun v. Couch, 232 Ga. 467, 207 S.E.2d 455 (1974), and Barnett v. Hopper, supra.

In Calhoun v. Couch, 232 Ga. 467, 207 S.E.2d 455, supra, and Barnett v. Hopper, 234 Ga. 694, 217 S.E.2d 280, supra, this court rejected arguments by defendants that their conditionally probated sentences made their imprisonment (resulting from an inability to pay the fine) a denial of equal protection under the Fourteenth Amendment of the United States Constitution. The court found several United States Supreme Court cases Williams v. Illinois, supra; Morris v. Schoonfield, supra; and Tate v. Short, supra distinguishable from a conditionally probated sentence imposed pursuant to Code Ann. § 27-2709 (Ga.L.1956, pp. 27, 31, as amended).

Relevant to the petitioner's citing of Barnett v. Hopper, 548 F.2d 550, supra, it is obvious that Barnett v. Hopper misinterprets the U.S. Supreme Court's opinions and should not be applied here. This case is controlled by Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970) where it is stated, "It bears emphasis that our holding does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of '$30 or 30 days.' We hold only that a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment than is fixed by the statute since to do so would be to accomplish indirectly as to an indigent that which cannot be done directly. We have no occasion to reach the question whether a State is precluded in any other circumstances from holding an indigent accountable for a fine by use of a penal sanction. We hold only that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.

"The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction."

We are not willing to hold under the facts of this case that a condition of sentence to be served on probation may not include the immediate payment of a fine. Such a sentence does not violate the due process and equal protection clause of the Fourteenth Amendment to the U.S. Constitution. On the contrary, to hold as urged by petitioner would result in inverse discrimination as to defendants under an identical sentence who were financially able to pay the fine immediately. In effect, the trial judge would be saying, "Since you are able to pay the fine, you must pay it all now; this is true, although those who can't pay it now may pay it later." Williams v. Illinois, supra.

There follow several reasons justifying the imposition of a lump-sum fine, without regard to the ability of the defendant to pay it immediately.

First, conclusions reached in Barnett v. Hopper, 548 F.2d 550, supra, fail to take into account the fact that the ability of a defendant to pay a fine is often a factor for the sentencing judge to consider in assessing the likelihood that the defendant will serve a term of probation without violation. Stated in another fashion, a conditionally probated sentence is not necessarily invidious discrimination based on wealth if the sentencing judge has determined that the defendant would not be a good candidate for probation unless a fine is paid first.

Second, the Supreme Court in the Williams-Morris-Tate trilogy emphasized the absence of the furtherance of any valid penal objective by the state statute in question that converted a fine into a term of imprisonment for failure to pay the fine. Tate v. Short, supra, 401 U.S., at 399, 91 S.Ct. 668; Williams v. Illinois, supra, 399 U.S. at 242, 90 S.Ct. 2018. Probation, in contrast to a fine that only raises revenue, does indeed further the penal objectives of a state. The probationer is maintained under supervision which it is hoped is close until it is deemed that he can become a constructive member of society without such supervision.

Third, probation is an integral tool in the rehabilitation of the convicted felon. Many factors are present in determining whether the convicted felon should be released on probation or parole. See Scarpa v. United States Board of Parole, 477 F.2d 278, 281 (5th Cir. 1973). The decision to place the convicted felon on probation is therefore not one to be entered into lightly, especially if the defendant has been convicted of a serious crime such as burglary. The trial judge is vested with a wide discretion in sentencing matters in order that an appropriate punishment can be molded to fit "the countless variety of situations that appear." Williams v. Illinois, supra, 399 U.S., at p. 243, 90 S.Ct. at p. 2023.

Fourth, viewed from the...