Cheeks v. State, A95A0478

• Decision Date: 14 July 1995
• Docket Number: No. A95A0478,A95A0478
• Parties: CHEEKS v. The STATE.
• Court: Georgia Court of Appeals

Page 860

460 S.E.2d 860

218 Ga.App. 212

CHEEKS v. The STATE.

No. A95A0478.

Court of Appeals of Georgia.

July 14, 1995.

Reconsideration Denied July 28, 1995.

Howard J. Stiller, Albany, for appellant.

Britt R. Priddy, Dist. Atty., Kenneth B. Hodges, Jr., Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Cheeks pled guilty to theft by taking of lottery tickets from the convenience store where she was formerly employed. She requested and received a restitution hearing. At the hearing, she offered no evidence of her present financial condition or her future earning capacity. Based on the evidence presented at the hearing, the trial court imposed restitution in the amount of $4,907. Cheeks now seeks a second restitution hearing based on the trial court's failure to consider her ability to pay.

Cheeks contends that the trial court failed to "hear any evidence" on the factors pertaining to her ability to pay restitution. However, the only reason the trial court failed to "hear any evidence" on Cheeks' ability to pay is that Cheeks failed to provide any such evidence. Cheeks would place an affirmative duty on the trial court to discover evidence relating to her ability to pay, evidence which only she was in the position to provide, simply because she failed to provide the evidence on her own behalf when she had the opportunity.

Cheeks claims that the transcript and record of this case "clearly demonstrate that all factors were not considered, nor mentioned" by the trial court. However, the trial court's restitution order clearly states that the court considered: "the present financial condition of the Defendant and h[er] dependents, the probable future earning capacity of the Defendant and h[er] dependents, the amount of damages involved, the goals of restitution to the victim and rehabilitation to the Defendant, the restitution previously made, if any, and the period of time during which the restitution order will be in effect." These are the factors enumerated in OCGA § 17-14-10. Thus, the trial court's order demonstrates that the court properly considered all of the factors it was required to consider.

Cheeks further contends that the trial court failed to make findings of fact addressing the OCGA § 17-14-10 factors and that this failure entitles Cheeks to a second restitution hearing. However, the transcript and the record show that the trial court heard the State's evidence on the factors for which it could provide evidence, and the restitution order demonstrates the court's findings. Cheeks' failure to provide evidence to the trial court of her present financial condition and her probable future earning capacity resulted in a lack of evidence on those factors, but it does not follow that the trial court did not properly consider the factors enumerated in OCGA § 17-14-10 and make findings of fact related to those factors. While Cheeks' failure to provide this evidence may certainly have affected the court's findings of fact, it is not error for the trial court to make findings of fact based on the evidence before it without the defendant's assistance if the defendant has been given the opportunity to provide evidence on her own behalf and fails to do so. That is precisely what occurred in this case.

In order for a trial court to impose restitution, three things are required: a restitution hearing, consideration of the factors enumerated in OCGA § 17-14-10, and findings of fact. Cannon v. State, 246 Ga. 754, 272 S.E.2d 709 (1980); Slater v. State, 209 Ga.App. 723, 434 S.E.2d 547 (1993); Williams v. State, 180 Ga.App. 854, 350 S.E.2d 837 (1986). Here, Cheeks received a restitution hearing, the trial court considered all of the required factors, and the court made findings based on the evidence presented. Cheeks would place an affirmative duty on the trial court to discover evidence pertaining to her ability to pay, even though she had the opportunity to provide evidence on her own behalf and failed to do so. This position is untenable. Because Cheeks requested the restitution hearing in which she had the opportunity to provide evidence of her ability to pay, yet still chose not to present any evidence, her silence is deemed a waiver. See Westmoreland v. State, 192 Ga.App. 173, 177, 384 S.E.2d 249 (1989). A defendant is not entitled to additional restitution hearings ad infinitum merely because, when given the opportunity, she chooses not to provide any evidence on her own behalf.

Judgment affirmed.

BIRDSONG and POPE, P.JJ., and JOHNSON and RUFFIN, JJ., concur.

BEASLEY, C.J., McMURRAY, P.J., BLACKBURN and SMITH, JJ., dissent.

BEASLEY, Chief Judge, dissenting.

Appellant is a woman who pleaded guilty August 15, 1994, to theft by taking "in excess of $100" worth of Georgia lottery tickets. It was established at the restitution hearing that she took $4,907 worth of them from her employer while working at a convenience store for about 30 days in November 1993. She was arrested and jailed November 30, 1993, posted an appearance bond that same day, and was indicted in April 1994. Through the office of the indigent defense coordinator, trial counsel (who still represents appellant) was appointed in June. Immediately, waiver of arraignment was filed and discovery conducted.

After the plea was entered in August, a "Sentence and Restitution Hearing" was held on September 8 by the judge who had accepted the plea of guilty. The only matter on which evidence was presented related to proof of the theft and the extent of it, and that was presented through the owner of the store as the State's witness, plus his documents, in order to establish the amount of restitution sought by the State as damages for the victim of the crime. At the end of the proceeding, after hearing argument of counsel, the court pronounced its finding of the amount taken, required it as restitution, and further pronounced sentence of ten years probation at the detention center and diversion center plus a fine of $502. Since the arguments of counsel were not transcribed, we do not know what factors were addressed by them. The actual sentence entered included certain surcharges plus $200 attorney fees and a monthly probation fee. Payments were to be made at the rate of $50 per month beginning the first of the next month. A few weeks later, the court deleted that portion of the sentence requiring custody in the detention center and left as the only custodial part of the sentence the 120-day minimum at the diversion center.

At the time of sentencing, the court entered an order making "Restitution Findings." It referred to the statute providing for such and listed the first six factors set out in OCGA § 17-14-10, stating that it considered them and, as required by OCGA § 17-14-8, found "[t]hat restitution will be ordered as a condition of the relief." It did not make findings of fact as to these factors in that court order.

A week later, the court entered an order directing the court reporter to prepare a transcript and the clerk to prepare the record for appeal, all without payment of fees or costs because defendant was indigent. A few weeks after that, a notice of appeal was filed by counsel on appellant's behalf, together with a pauper's affidavit. In it appellant stated that she desired to appeal the court's findings regarding restitution and was a pauper without sufficient funds to pay the costs for such, including the cost of transcript preparation. The appeal proceeded without costs paid.

Thus the record shows that the court considered the statutory factors. Let us look at the evidence of record regarding the September 1994 financial condition of appellant and her dependents, if any, and her and their earning capacity from that time forward. There is no evidence that she had any dependents. There is evidence that she was capable of working in a convenience store alone or with a co-worker, that she was capable of handling an employer's money and keeping records (although she was found not trustworthy), that she had not been incarcerated on this charge after she was released on the day of arrest, and that she was indigent to the extent she qualified for appointed counsel and a cost-free appeal. It is not contested that she was a suitable candidate for the diversion center. The State in its brief explains that the court deleted the detention center portion of the sentence so that defendant "could maintain the employment that she currently held." This is not within our ken, however, as it is not shown by the record. Hudson v. State, 185 Ga.App. 508(1), 364 S.E.2d 635 (1988).

Thus, although the trial court did not make an express finding of defendant's financial condition, the record shows by a preponderance of the evidence in it that she was indigent, which fact the court found in its order for a cost-free transcript and appeal. It made no finding regarding dependents, but defendant does not assert that she has any and did not do so of record below. The record contains some evidence of her "probable future earning capacity" as of September 1994, as described above. As to the sufficiency of evidence, the standard is the civil one of preponderance. Lawrenz v. State, 194 Ga.App. 724, 725, 391 S.E.2d 703 (1990).

On appeal, the appellant enumerates as one composite error the ordering of restitution based on the evidence presented, the failure to hear evidence and consider the factors listed in OCGA § 17-14-10, and the failure to make written findings of fact as to these factors. Her argument as set out in the brief is that the court did not consider and make findings of fact regarding present financial condition and probable future earning capacity and that the evidence was not sufficient to support the amount of restitution.

It is clear that the court did not fail to hear any evidence which defendant wished to produce with respect to the factors to be considered in a restitution hearing. I agree that she waived the opportunity to do...