Malcom v. State

• Decision Date: 26 May 1982
• Docket Number: No. 63977,63977
• Parties: MALCOM (Pecolia) v. The STATE.
• Court: Georgia Court of Appeals

Page 756

291 S.E.2d 756

162 Ga.App. 587

MALCOM (Pecolia) v. The STATE.

No. 63977.

Court of Appeals of Georgia.

May 26, 1982.

John P. Howell, Covington, for appellant.

John T. Strauss, Dist. Atty., Monroe, John M. Ott, Asst. Dist. Atty., for appellee.

BANKE, Judge.

The appellant was given two consecutive 5-year sentences following her convictions on two counts of welfare fraud. Both sentences were probated upon condition that, among other things, she maintain "suitable employment" and pay a fine and restitution in specified weekly installments. A probation revocation petition was later filed alleging that "the defendant has violated the following terms and conditions of probation in the following particulars: Failure to maintain employment. Failure to pay fine and restitution as ordered..."

The hearing on the revocation petition consisted, in substance, of the following exchange between the appellant and her appointed counsel on the one hand and the court and the district attorney on the other. "DISTRICT ATTORNEY: What is your place ... Do you admit the allegations of the petition? DEFENSE COUNSEL: Yes, sir... DISTRICT ATTORNEY: You also admit, Miss Malcom, that you have violated probation, as alleged here? That you haven't paid your fine and restitution, as ordered? And you haven't maintained employment? Is that correct? Say 'yes' or 'no,' please. DEFENDANT: Yes. (Bench conference.) THE COURT: Miss Malcom, as I understand it now, you admit you failed to maintain employment? Failed to pay your fine? You're behind $120? Is that correct? THE DEFENDANT: Yes, sir. THE COURT: All right, then. I'm going to revoke your probation--one year of your probation..."

The appellant contends on appeal that she did not receive effective assistance of counsel and that her admissions did not establish grounds for revocation of her probation. Held :

Based on the Georgia Supreme Court's ruling in Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), this court, in Wood v. State, 150 Ga.App. 582, 258 S.E.2d 171 (1979), and Simpson v. State, 154 Ga.App. 775, 270 S.E.2d 50 (1980), held that a defendant's probation may be revoked for failure to make court-ordered payments, even though the defendant may be indigent and may have been neither negligent nor wilful in failing to pay. However, the United States Supreme Court later vacated both of these decisions due to the appearance of a possible conflict of interest on the part of defense counsel. See Wood v. State, 158 Ga.App. 309, 280 S.E.2d 439 (1981), conforming to Wood v. Ga., 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), and Simpson v. State, 158 Ga.App. 512, 281 S.E.2d 649 (1981), conforming to Simpson v. Georgia, 450 U.S. 972, 101 S.Ct. 1504, 67 L.Ed.2d 808 (1981).

The issue confronted by the Georgia Supreme Court in Hunter v. Dean, supra, was whether an indigent defendant could constitutionally be ordered to pay a fine as a condition precedent to being allowed to serve her sentence on probation. Although the court answered this question in the affirmative, it upheld the defendant's revocation only after a thorough examination of the facts of that particular case. Among the reasons enumerated for sustaining the revocation, the court listed the following: "Fourth, viewed from the perspective of the court below at the time of sentencing in this case, the sentence which resulted was quite reasonable, as well as appropriate to the circumstances of the particular case and the individual involved. Of critical...