Glover v. State

• Decision Date: 16 July 1999
• Docket Number: No. A99A0389.,A99A0389.
• Citation: 521 S.E.2d 84,239 Ga. App. 155
• Parties: GLOVER v. The STATE.
• Court: Georgia Court of Appeals

521 S.E.2d 84

239 Ga. App. 155

GLOVER v. The STATE.

No. A99A0389.

Court of Appeals of Georgia.

July 16, 1999.

Certiorari Granted November 19, 1999.

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

Patrick H. Head, District Attorney, Debra H. Bernes, Nancy I. Jordan, Bruce D. Hornbuckle, Assistant District Attorneys, for appellee.

RUFFIN, Judge.

John Glover challenges the sentence imposed by the trial court upon the revocation of his probation, alleging that the sentence is longer than allowed under OCGA § 42-8-34.1(b). As explained below, we find that the trial court acted within its discretion, and we affirm.

Glover pled guilty in 1989 to multiple counts of child molestation and related charges stemming from his repeated sexual abuse of a minor under 14 years of age. Glover was sentenced to thirty years, with seven years to be served in prison and the remainder to be probated. In addition to general conditions of probation, the trial court imposed seven special conditions of probation, including two conditions limiting Glover's contact with minor children and one condition requiring Glover to attend counseling for sexual deviancy. Glover was released from prison in 1996 after serving seven years. In 1997, Glover was arrested for making contact with a four-year-old girl at church, in violation of the conditions of his probation. The Department of Corrections filed a petition to modify or revoke Glover's probation, charging him with violating the special conditions of his probation restricting contact with minors, as well as several of the general conditions.

Following a hearing, the trial court found that Glover had violated three of the 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.¹ The trial court revoked Glover's original sentence and ordered him to serve ten years, with the balance of his original sentence to be probated.

Glover filed a motion to vacate his sentence, arguing that under OCGA § 42-8-34.1(b) the trial court was only authorized to revoke a maximum of two years of his probation. The trial court denied Glover's motion, and we granted his application for discretionary appeal. On appeal, Glover challenges only the length of his sentence, not the revocation itself.

1. OCGA § 42-8-34.1 governs the length of detention permitted on a probation revocation. Lawrence v. State, 228 Ga.App. 745, 747, 492 S.E.2d 727 (1997). Upon proof that the defendant has violated any provision of his probation "other than by commission of a new felony offense," the trial court "may revoke the balance of probation or not more than two years in confinement, whichever is less." OCGA § 42-8-34.1(b). If, however, the defendant has violated his probation by

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.) OCGA § 42-8-34.1(c). Although the trial court found that Glover violated the special conditions of his probation, Glover contends that OCGA § 42-8-34.1(c) does not apply here because these special conditions were not "imposed pursuant to" OCGA § 42-8-34.1. Thus, Glover argues that the applicable section is OCGA § 42-8-34.1(b), which limits Glover's detention to two years.

There is scant authority interpreting OCGA § 42-8-34.1(c)'s reference to "a special condition imposed pursuant to this Code section." The Supreme Court of Georgia first addressed § 42-8-34.1(c) in Gearinger v. Lee, 266 Ga. 167, 465 S.E.2d 440 (1996), which involved a probation revocation based on the defendant's violation of a special condition of probation. The defendant originally was sentenced to five years of probation on a theft conviction and ten years of probation on a drug conviction, but his probation was "thereafter modified and he was remanded to a detention center by an order that set forth as a `Special Condition of his probation,'" the requirement that he obey all rules of the detention center. Id. at 168, 465 S.E.2d 440. The defendant's probation was thereafter revoked based on his violation of four disciplinary rules at the detention center, none of which involved the commission of a felony. The trial court ordered the defendant to serve the remaining time on his sentence for theft in prison, plus five years of his sentence for drug possession, with the balance of the drug sentence to be served on probation.

The Supreme Court ruled that the defendant's disciplinary infractions "constitute[d] a `violation of a special condition' of his probation," and thus OCGA § 42-8-34.1(c) authorized the trial court to revoke up to the balance of the defendant's probation. Id. at 169(1), 465 S.E.2d 440. The Supreme Court did not address the effect of § 42-8-34.1(c)'s requirement that a special condition be "imposed pursuant to this Code section" and did not discuss whether the special conditions at issue in Gearinger were, in fact, "imposed pursuant to" OCGA § 42-8-34.1. Rather, the Supreme Court broadly stated, without qualification, that "where ... the violation of probation results solely from infraction of a special condition and not from commission of a felony offense," the trial court may revoke up to the balance of the defendant's probation. (Emphasis supplied.) Id. at 170, 465 S.E.2d 440.

The Supreme Court next construed OCGA § 42-8-34.1(c) in Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996), in which the defendant's probation was revoked because he committed a felony and violated a special condition of his probation by failing to pay court-imposed fines. Under those circumstances, the Supreme Court held that § 42-8-34.1(c) authorized the trial court to revoke the balance of the defendant's probated sentence (twenty-three years), rather than the maximum sentence for his felony (ten years). Id. at 859(2), 471 S.E.2d 872. In reaching this result, the Supreme Court restated its holding in Gearinger that "where probation is revoked solely for the violation of a special condition, and not for a felony offense ... the revocation court is authorized by section 42-8-34.1(c) to revoke no more than the balance of a defendant's probation." (Punctuation omitted.) Id. Once again, the Supreme Court ignored § 42-8-34.1(c)'s qualifying language, "imposed pursuant to this Code section," making no distinction among different types of special conditions.

Thus, in Gearinger and Manville, the Supreme 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. Rather, as we recently explained in Williams v. State, 234 Ga.App. 37, 38, 505 S.E.2d 816 (1998), that authority originates elsewhere:

A trial judge is expressly authorized by OCGA § 17-10-1(a) to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. OCGA § 42-8-35 sets forth 12 conditions which may be imposed on probation. This list, however, is not exclusive. A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.

(Citations, punctuation and emphasis omitted.) See also Staley v. State, 233 Ga.App. 597, 598, 505 S.E.2d 491 (1998) (OCGA § 17-10-1(a)(1) "has been construed to give sentencing judges broad discretion in fashioning appropriate conditions of probation, tailored to the individual defendant's circumstances as well as the interests of society and the victim"); Penaherrera v. State, 211 Ga.App. 162, 163(1), 438 S.E.2d 661 (1993) ("[a]ny `reasonable condition' may be imposed"); Ballenger v. State, 210 Ga.App. 627, 628(1), 436 S.E.2d 793 (1993).

Following the Supreme Court's decisions in Gearinger and Manville, this Court, in two subsequent cases, has attempted to give meaning to § 42-8-34.1(c)'s phrase "imposed pursuant to this Code section." See Lawrence v. State, 228 Ga.App. 745, 492 S.E.2d 727 (1997); Dunlap v. State, 231 Ga.App. 82, 497 S.E.2d 640 (1998). In Lawrence, the defendant's probation was revoked for the commission of two misdemeanor batteries and failure to pay fines ordered as a special condition of probation. The trial court sentenced the defendant to serve the balance of his sentence, which was four-and-one-half years, based on the commission of the batteries. This Court vacated the sentence on the ground that § 42-8-34.1(b) allowed the trial court to revoke a maximum of two years of the defendant's sentence for the misdemeanor batteries. However, the Court instructed that, pursuant to § 42-8-34.1(c), the trial court could revoke the balance of the defendant's sentence based on his nonpayment of fines, because the payment of fines was a special condition "imposed pursuant to this Code section." Id. The Court apparently based this conclusion on § 42-8-34.1(d)'s reference to "[t]he payment of restitution or reparation, costs, or fines."

However, § 42-8-34.1(d) does not authorize the imposition of fines as a special condition of probation; it merely states that the court may require any fines "ordered by the court" to be paid in one lump sum or in periodic installments. As noted above, other code sections provide the statutory authority for imposition of special conditions. In particular, the imposition of fines is specifically authorized by OCGA §§ 17-10-8 and 42-8-34(e). See Whitehead v. State, 207 Ga.App. 891, 892(2), 429 S.E.2d 536 (1993); Todd v. State, 172...