Lee v. State

• Decision Date: 12 April 1983
• Docket Number: No. 65431,65431
• Citation: Lee v. State, 304 S.E.2d 446, 166 Ga.App. 485 (Ga. App. 1983)
• Parties: LEE et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 446

304 S.E.2d 446

166 Ga.App. 485

LEE et al. v.The STATE.

No. 65431.

Court of Appeals of Georgia.

April 12, 1983.

Rehearing Denied May 2, 1983.

John A. Nuckolls, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Jerry Baxter, Asst. Dist. Attys., for appellee.

BIRDSONG, Judge.

Vandalism.The evidence in this case shows that three high school seniors Christopher Lee, Benjamin Spears, and Drew Swenson unlawfully forced open the doors of a building in a sewage disposal plant owned and operated by Fulton County.Once inside the three young men using a metal bar vandalized parts of the interior of the building.The appellants admitted damaging an overhead heater, a water cooler, and an electrical panel.After they left, water from broken pipes ran down three floors into a basement area occupied by powerful electrical pumps resulting in total damage to the contents of the building in excess of $34,600.

Each of the three (appealed only by Lee and Spears) entered a plea of guilty to the vandalism but asserted that there were probably others who contributed to the overall damage.The trial court sentenced each defendant to five years (probated), a $1,000 fine and restitution in the amount of $11,553.66 (one-third of the damages).Appellants do not contest the validity of their pleas of guilty but enumerate error in the assessment of restitution in an amount of one-third of the damages where both contended that others were also involved and caused most of the damages.Both Lee and Spears enumerate the same four alleged errors.Held:

1.Appellants contend that Code Ann. § 27-2711 is unconstitutional in that the statute does not indicate how restitution should be adjudicated.Related to this enumeration is that the trial court did not formally reach an adjudication as to restitution inasmuch as the statute does not specify the form or content of adjudication.

As to unconstitutionality, we need not reach that issue, nor, if the issue were properly before this court, would we have jurisdiction to address it.At no point during the rather extensive hearing on the guilty plea did the appellants ever raise the question of constitutionality of Code Ann. § 27-2711.The constitutionality of a statute cannot be raised for the first time on appeal.Corley v. State, 154 Ga.App. 301(2), 268 S.E.2d 76;Simmons v. State, 154 Ga.App. 234(1), 267 S.E.2d 806.Moreover, other than a general contention that the statute does not specify the manner for adjudicating the amount of restitution, there is no delineation of what provision of the constitution is violated by the statute.Such specification is necessary to raise an issue.Wallin v. State, 248 Ga. 29, 30(1), 279 S.E.2d 687.

As to the second facet of appellants' argument, we observe that the trial court held a two-day hearing, taking extensive evidence from the civil engineer familiar with the facility and testimony from each of the appellants and other witnesses.There was extensive evidence as to the nature of the property damage fully documented by pictures and estimates.This was uncontested except for certain speculation as to who might have been responsible for the damage other than that to which the appellants expressly admitted.It is apparent therefore that the trial court had competent evidence as to the damage, the amount of that damage, and the complicity of the three appellants in the causing of that damage.There can be no question that the trial...