Glover v. State

• Decision Date: 10 July 2000
• Docket Number: No. S99G1677.,S99G1677.
• Citation: 272 Ga. 639,533 S.E.2d 374
• Parties: GLOVER v. The STATE.
• Court: Georgia Supreme Court

533 S.E.2d 374

272 Ga. 639

GLOVER v. The STATE.

No. S99G1677.

Supreme Court of Georgia.

July 10, 2000.

Reconsideration Denied July 28, 2000.

Dennis C. O'Brien, Marietta, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Bruce D. Hornbuckle, Dana J. Norman, Assistant District Attorneys, for appellee.

HINES, Justice.

We granted certiorari to the Court of Appeals in Glover v. State, 239 Ga.App. 155, 521 S.E.2d 84 (1999), to consider its interpretation and application of OCGA § 42-8-34.1(c). We reverse, because OCGA § 42-8-34.1(c) does not, as the Court of Appeals concluded, authorize a trial court to revoke the balance of a probationary sentence when the probationer violates any special condition of probation.

The relevant facts are set forth by the Court of Appeals. In 1989, John Glover pled guilty to multiple counts of child molestation and related charges stemming from his repeated sexual abuse of a child under 14 years of age. Glover was given a sentence of thirty years, seven years to be served in prison with the balance on probation. In addition to the general conditions of probation, the trial court imposed several special conditions, including limiting Glover's contact with minor children and requiring Glover to attend counseling for sexual deviancy. After serving seven years in prison, Glover was released in 1996. In 1997, he was arrested for violation of the conditions of his probation by making contact at church with a four-year-old girl.

After a hearing, the trial court found that Glover violated, along with several general conditions of probation, three special conditions of his probation by making direct contact with a minor, engaging in volunteer work that brought him into contact with a minor, and failing to attend counseling. The court revoked Glover's original sentence and ordered him to serve ten years with the balance to be served on probation.

Glover moved to vacate his sentence on the basis that the court was authorized to revoke only a maximum of two years of his probation under OCGA § 42-8-34.1(b).¹ The motion was denied, and the Court of Appeals affirmed, determining that the applicable portion of OCGA § 42-8-34.1 is subsection (c):

If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant's admission is the commission of a felony offense or the violation of a special condition imposed pursuant to this Code section, notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the crime constituting the violation of the probation.

(Emphasis supplied.) Citing Gearinger v. Lee, 266 Ga. 167, 465 S.E.2d 440 (1996) and Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996), the Court of Appeals concluded that this Court "implicitly recognized that the phrase `imposed pursuant to this Code section' is meaningless, as § 42-8-34.1 does not authorize the imposition of any special conditions of probation." Glover v. State, supra at 158(1), 521 S.E.2d 84. Based on this conclusion, the Court of Appeals overruled two of its decisions, Lawrence v. State, 228 Ga.App. 745, 492 S.E.2d 727 (1997) and Dunlap v. State, 231 Ga.App. 82, 497 S.E.2d 640 (1998), "to the extent that those cases hold that the phrase `imposed pursuant to this Code section' limits the type of special conditions to which § 42-8-34.1(c) applies." Glover v. State, supra at 160(1), 521 S.E.2d 84. But, the Court of Appeals' analysis is unfounded and its conclusion unwarranted.

Judicial construction is appropriate only when a statute is ambiguous, and when the statutory language is plain and unequivocal, judicial construction is not only unnecessary but forbidden. Fleming v. State, 271 Ga. 587, 589, 523 S.E.2d 315 (1999). The language of subsection (c) is plain and unequivocal. By its express terms, it applies to the commission of a felony offense or the violation of a special condition "imposed pursuant to this Code section," that is, pursuant to OCGA § 42-8-34.1. The Court of Appeals found that the phrase, in essence, could be ignored because it concluded that the statute does not provide for the imposition of any special conditions of probation. Thus, revocation of the entire balance of a probationary sentence would be permitted when there is a violation of any special condition legally imposed. But, this Court's decisions in Gearinger v. Lee and Manville v. Hampton do not compel such a conclusion; neither case addressed the language at issue. While OCGA § 42-8-34.1 itself does not define "special condition," the Court of Appeals in Dunlap v. State and Lawrence v. State, plainly found that certain special conditions are authorized under that Code section.

Regardless of whether OCGA § 42-8-34.1 serves as a basis for imposing special conditions of probation, the Court of Appeals analysis is incorrect. If the phrase "imposed pursuant to this Code section" creates ambiguity requiring judicial construction, the appellate court must be guided by rules of statutory construction appropriate to interpreting provisions for criminal penalties. See Chandler v. State, 257 Ga. 775, 364 S.E.2d 273 (1988). It cannot be misled by approaches which "run afoul of basic precepts of criminal jurisprudence." Fleming, supra at 589, 523 S.E.2d 315.

OCGA § 42-8-34.1(c) should be read "according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending [its] operation...." State v. Johnson, 269 Ga. 370, 371(1), 499 S.E.2d 56 (1998). But what is paramount is that a penal statute must always be interpreted strictly against the State and in favor of human liberty. Fleming, supra at 590, 523 S.E.2d 315; Chastain v. State, 231 Ga.App. 225, 227(4), 498 S.E.2d 792 (1998). This means that when a statute which imposes a penalty is capable of two constructions, the statute must be found to impose the lesser penalty. Fleming, supra at 590, 523 S.E.2d 315; Diamond v. State, 267 Ga. 249, 251(3)(a), 477 S.E.2d 562 (1996); Chandler v. State, supra. This is so no matter how deserving of punishment the conduct at issue may be. Fleming, supra at 589, 523 S.E.2d 315; Waldroup v. State, 198 Ga. 144, 145, 30 S.E.2d 896 (1944).

As this Court noted with regard to the issues in Manville v. Hampton, OCGA § 42-8-34.1(c) is quite susceptible to results that may not have been intended.² Id. at 857, 471 S.E.2d 872. But, if that is so, it is for the legislature to re-examine the language of the statute and ensure that it accurately reflects its requirements for revoking probated or suspended sentences. Simply put, if the penalty provisions of subsection (c) are to apply to a violation of any special condition of probation lawfully imposed under the Code and thereby permit revocation of the balance of probation, the legislature needs to say so. This Court cannot, as the Court of Appeals did, resolve the issue in favor of increased punishment for the probationer.

Judgment reversed.

All the Justices concur, except HUNSTEIN, CARLEY, and THOMPSON, JJ., who dissent.

CARLEY, Justice, dissenting.

The majority opinion offers neither a solution nor any guidance in this case of statutory construction. The majority initially relies upon Dunlap v. State, 231 Ga.App. 82, 497 S.E.2d 640 (1998) and Lawrence v. State, 228 Ga.App. 745, 492 S.E.2d 727 (1997) for the proposition that OCGA § 42-8-34.1 authorizes special conditions. However, the majority does not reconcile these two cases or even address the fact that they seriously differ from each other both in their analysis and in their interpretations of Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996) and Gearinger v. Lee, 266 Ga. 167, 465 S.E.2d 440 (1996). Instead, the majority finds that strict construction of OCGA § 42-8-34.1(c) against the State and in favor of a lesser penalty is mandatory "[r]egardless of whether OCGA § 42-8-34.1 serves as a basis for imposing special conditions of probation...." Under such analysis, a strict construction of the phrase "special condition imposed pursuant to this Code section" is necessary even if the Code section does not authorize any special condition. In my opinion, rather than mandating this contradictory and illogical interpretation of OCGA § 42-8-34.1(c), the rules of statutory construction require a different approach. "[C]riminal statutes must be strictly construed, but that does not imply that such statutes are not subject to logical interpretation." Bunge v. State, 149 Ga.App. 712, 716(3), 256 S.E.2d 23 (1979). "`Although criminal statutes must be strictly construed, they must first be construed consistent with genuine legislative intent and in a manner which avoids absurd and contradictory results ((cits.)).' [Cit.]" (Emphasis supplied.) State v. Mack, 231 Ga.App. 499, 500, 499 S.E.2d 355 (1998). See also Reynolds v. State, 209 Ga.App. 628, 630(1), 434 S.E.2d 166 (1993). Because OCGA § 42-8-34.1 itself does not authorize the imposition of any special conditions of probation, I believe that the language in subsection (c) is meaningless if construed literally and in a vacuum. However, by transposing the words therein, in accordance with the principle of statutory construction codified in OCGA § 1-3-1(a), the meaningless phrase "pursuant to this Code section" should properly be construed as "pursuant to sections of this Code." In my opinion, the trial court correctly applied OCGA § 42-8-34.1(c) in revoking Glover's probation for violating those special probationary conditions imposed pursuant to other Code sections and, consequently, I dissent to this Court's reversal of the Court of Appeals' affirmance of the judgment of the trial court.

In Manville v. Hampton, supra at 859(2), 471 S.E.2d 872, and Gearinger v. Lee, supra at 170(2), 465 S.E.2d 440, this Court...