Lawrence v. State, A97A1695

Decision Date07 October 1997
Docket NumberNo. A97A1695,A97A1695
Citation228 Ga.App. 745,492 S.E.2d 727
PartiesLAWRENCE v. The STATE.
CourtGeorgia Court of Appeals

Steven M. Reilly, Lawrenceville, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

BEASLEY, Judge.

Finding Jeffrey Lawrence had not met the terms of his probation and had committed two new violent misdemeanors, the court revoked the remaining four and one-half years of his probation. Lawrence appeals on the ground that OCGA § 42-8-34.1(b) limits to two years the amount of probation a court may revoke. But where one basis for revoking probation is the failure to comply with "a special condition imposed pursuant to [OCGA § 42-8-34.1]," the two-year limit does not apply. OCGA § 42-8-34.1(c). Because the trial court based the length of revocation on multiple grounds, the case is remanded with direction to reconsider the length.

On August 16, 1996, Lawrence pled guilty to terroristic threats (OCGA § 16-11-37), criminal damage to property (OCGA § 16-7-23), and criminal trespass (OCGA § 16-7-21). The court sentenced him to five years probation. General conditions of probation (e.g., do not violate criminal laws, report to probation supervisor as directed, etc.), as well as specific additional conditions, were imposed. The latter included 90 days of service in a work release program, no consumption of alcohol, and payment of $25 per week to pay off a $650 fine, $858.03 restitution, and a $20 monthly probation fee.

Five months later, the State petitioned the court to revoke probation on the grounds that Lawrence had violated two general conditions by twice committing the offense of battery and by failing to report to the probation officer following his completion of work release. The second ground was later abandoned. The State further alleged Lawrence had violated a "special condition" by failing to make the court-ordered payments.

At the hearing, Lawrence stipulated to the two battery offenses, and the probation officer testified Lawrence had not made the payments. The court found he had failed to meet the conditions as alleged in the petition and further found that he had committed new violent misdemeanors. The court ordered him to serve the balance of his sentence in the State penal system. See OCGA § 17-10-1(a)(3)(A).

Lawrence moved the court to reconsider, arguing that OCGA § 42-8-34.1(b) prohibited revocation of more than two years of his probation. The State responded that, based on OCGA § 42-8-34.1(c) and Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996), the violation of the special condition authorized the court to revoke the remainder of probation even though it exceeded two years. During the hearing and in its order denying the motion, the court explained that in revoking the balance it had not relied upon any provision of OCGA § 42-8-34.1, but had relied upon OCGA § 17-10-1(a)(3)(A) and its finding of new violent misdemeanor offenses.

OCGA § 42-8-34.1(b) provides: "At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to [prison confinement]. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less." (The words "in confinement" are an inapt and confusing appendage, for what is revoked is a period of probation, not a period of confinement. Confinement is what is ordered as a result of revocation.)

According to the statute, when the sole basis for revoking probation is the commission of a new misdemeanor, whether violent or not, the cap is two years. See Gordon v. State, 217 Ga.App. 271(2), 456 S.E.2d 761 (1995). But when a special condition provided for in OCGA § 42-8-34.1(d) is contravened, subsection (c) allows the court to revoke the entire balance of probation even if greater than two years. See Manville, supra, 266 Ga. at 858-860(2), 471 S.E.2d 872; Gearinger v. Lee, 266 Ga. 167, 465 S.E.2d 440 (1996). In Manville, the probationer committed felony theft (violation of a general condition), and he failed to make payments as directed (violation of a qualifying special condition). Because of the breach of the special condition, the Supreme Court upheld the revocation of the balance of the probated sentence--approximately 23 years.

What constitutes a special condition under OCGA § 42-8-34.1(c) is crucial. Gearinger's special condition was to obey all rules of the detention center, which turned out to include rules against insubordination, verbally threatening a correctional officer, failing to follow instructions, and using obscene words. But this was not a special condition "imposed pursuant to [OCGA § 42-8-34.1]." Manville's special condition was the payment of a fine in equal periodic increments and a monthly probation supervision fee, special conditions that are covered by OCGA § 42-8-34.1(d).

The earlier case of Cockrell v. Brown, 263 Ga. 345, 433 S.E.2d 585 (1993), focused only on subsection (b) of the statute and did not address the applicability of subsection (c) even though some of the violated conditions involved the payment of a fine, costs, and restitution. Id. at 346, n. 1, 433 S.E.2d 585. Without considering the authorization for revoking the balance of probation for the special conditions, whatever that balance was, Cockrell reversed the revocation judgment and remanded for resentencing.

The statute limits qualifying special conditions to ones "imposed pursuant to this Code section." OCGA § 42-8-34.1(c). Subsection (d) sets out the special conditions of payment of restitution or reparation, costs, or fines in lump sum or periodic. See Manville, supra. These conditions were expressly set out in Lawrence's sentence as conditions "other" than the "general conditions." Accordingly, Lawrence's failure to make the scheduled payments gave the court cause to revoke the remaining balance of his probation, and OCGA § 42-8-34.1(c) gave the authority.

But the court made clear that it was not relying on the nonpayment of fines as the basis for revoking the entire sentence, but was relying on the commission of the two new violent misdemeanors: at the revocation hearing it said the nonpayment of monies is "not the primary issue the Court is concerned about today"; in the subsequent hearing on the motion to reconsider it said "the basis of the revocation for the balance is a new violent misdemeanor offense based upon 17-10-1(3)(A)," and in the order denying reconsideration it wrote "the sentence of probation revocation ... was properly imposed pursuant to O.C.G.A. §...

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7 cases
  • Glover v. State
    • United States
    • Georgia Supreme Court
    • July 10, 2000
    ...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 ......
  • Glover v. State
    • United States
    • Georgia Court of Appeals
    • July 16, 1999
    ...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......
  • Glover v. State
    • United States
    • Georgia Court of Appeals
    • February 2, 2001
    ...requires us to change our analysis, we adhere to our earlier ruling for the reasons stated in our prior opinion. To the extent that Lawrence v. State14 and Dunlap v. State15 hold otherwise, we reiterate our previous overruling of such Having concluded that there are no special conditions th......
  • Chatman v. Findley, S01A0043.
    • United States
    • Georgia Supreme Court
    • June 4, 2001
    ...on the special conditions subject to § 42-8-34.1(c)[,]" the Court of Appeals overruled its prior decisions in 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 pu......
  • Request a trial to view additional results
1 books & journal articles
  • Criminal Law - Franklin J. Hogue and Laura D. Hogue
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 52-1, September 2000
    • Invalid date
    ...Id. 345. 266 Ga. 167, 465 S.E.2d 440 (1996). 346. 266 Ga. 857, 471 S.E.2d 872 (1996). 347. 239 Ga. App. at 158, 521 S.E.2d at 86. 348. 228 Ga. App. 745, 492 s.e.2d 727 (1997). 349. 231 Ga. App. 82, 497 s.e.2d 640 (1998). 350. 239 Ga. App. at 160, 521 s.e.2d at 88. 351. 271 Ga. 299, 519 s.e.......

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