Morrison v. State, 73187

• Decision Date: 05 January 1987
• Docket Number: No. 73187,73187
• Parties: MORRISON v. The STATE.
• Court: Georgia Court of Appeals

Page 622

352 S.E.2d 622

181 Ga.App. 440

MORRISON v. The STATE.

No. 73187.

Court of Appeals of Georgia.

Jan. 5, 1987.

Kenneth W. Krontz, Douglasville, David M. Bowen, for appellant.

Frank C. Winn, Dist. Atty., J. David McDade, Asst. Dist. Atty., for appellee.

POPE, Judge.

William Francis Morrison and three co-defendants pled guilty to the offense of arson in the first degree. Defendant was sentenced to 10 years probation, conditioned on the payment of restitution to the victim, and a $1,000 fine. A hearing was held on March 11, 1986 to determine the restitutionary amount. An order was entered on March 12, 1986 specifying the amount of restitution and the manner of payment as follows: "[E]ach defendant is jointly and severally responsible for the entire amount of $32,500.00.... [A]s a condition of probation the [four] defendants shall pay the sum of $15,000.00 restitution ... on or before ... March 21, 1986. Should this not be paid on or before that date, each defendant will be considered to have violated the terms of his probation and subject to immediate revocation. Partial payment by any one defendant will not be considered as satisfaction of this obligation. Further, the balance owed of $17,500.00 shall be paid off during the first five (5) years of defendants' probation.... Further, should any amounts owed as restitution be in arrears at any time without legal excuse, each defendant shall be considered to have violated the conditions of probation. Under no circumstances shall this Order be construed so as to allow any defendant to pay only one fourth of any amount owed." From this order, defendant Morrison appeals. Held:

Defendant's sole enumeration of error is that the trial court erred in its March 12, 1986 order by holding each defendant jointly and severally liable for the entire restitutionary amount. We note at the outset that "[t]his court is not empowered to modify a sentence which is within the statutory limits and lawfully imposed." Thomas v. State, 139 Ga.App. 364, 228 S.E.2d 386 (1976). Thus, our initial inquiry is whether the sentence was properly imposed by the trial court.

"Probation is granted as a privilege, and not as a matter of right; and the revocation of the probation is punishment for the crime for which the defendant was convicted in the first instance. Probation of sentence ... comes as an act of grace to one convicted of a crime.... The defendant stands convicted; he faces punishment and cannot insist on terms or strike a bargain." (Citations and punctuation omitted.) Scott v. State, 131 Ga.App. 504, 206 S.E.2d 137 (1974). OCGA § 17-10-1 (a) gives the trial court the "power and authority to suspend or probate the sentence under such rules and regulations as he deems proper." See also Garland v. State, 160 Ga.App. 97 (4), 286 S.E.2d 330 (1981). "The probation and suspension statutes in Georgia vest broad discretion in trial judges.... [A]ny reasonable condition imposed for probation or suspension of a sentence by a trial court should ... be approved." West v. State, 160 Ga.App. 855, 856, 287 S.E.2d 694 (1982).

It is clear that court-ordered restitution may be imposed as a reasonable condition of probation. OCGA § 17-14-3. See also Lee v. State, 166 Ga.App. 485 (1), 304 S.E.2d 446 (1983) (in which the restitutionary amount was apportioned among the three co-defendants). This court has recently examined the role of restitution in our judicial process. In Garrett v. State, 175 Ga.App. 400, 401, 333 S.E.2d 432 (1985), ¹ we stated that "the restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act.... This device ... has the salubrious effect of serving judicial economy and saving as well ... time and costs and repeated court appearances.... It appears then, that the objective is to resolve and conclude the whole matter in a single court proceeding, in the context of the criminal action, in a manner acceptable to the parties...."

Although it is clear that the amount at issue in the present case could be awarded as joint and several damages following a civil liability trial, we do not believe this finding to be controlling of the issue in the case sub judice. This court's statement in Garrett concerning the purpose of restitution does not mean that restitution is synonymous with civil damages. OCGA § 17-14-9 clearly provides that the amount of restitution may be less than the actual damages suffered by the victim. Moreover, the legislature has mandated certain factors which must be considered in determining the nature and amount of restitution that clearly would not be relevant in determining civil damages. OCGA § 17-14-10. In fact, the amount of damages is only one factor that the ordering authority must consider under that code section. OCGA § 17-14-10 (3). Lastly, a restitutionary award does not preclude a civil trial and damages award. OCGA § 17-14-11.

Another line of cases which bears more directly on the reasonableness issue are those which hold that the trial court cannot impose conditions which involve third persons over which the probationer has no control. In Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981), the defendant was ordered as a condition of her probation to live with her parents. The court found this condition unenforceable stating that "[t]o require the defendant to 'live with her parents' ... requires the parents to permit her to do so.... Defendant has no control over whether her parents will permit her to live with them nor over whether her parents will even maintain a domicile." Id. at 64, 281 S.E.2d 503. In Parkerson v. State, 156 Ga.App. 440, 274 S.E.2d 799 (1980), the trial court ordered defendant and defendant's wife banished from the Waycross Judicial Circuit. The court found this order invalid and unenforceable because "[n]ot only would such a condition unreasonably restrict an innocent party's freedom to travel, but it imposes a condition on the probationer over which he has no control." Id. at 440, 274 S.E.2d 799. We do not believe, however, that these cases are controlling. In both Parkerson and Ward, the conditions imposed involved third parties over which the trial court had no authority. Moreover, in the case sub judice, defendant does have control over the condition imposed because he can pay the restitution. Defendant's lack of control concerns his ability to insure that his co-defendant's pay their "fair share." However, defendant cites no authority for the proposition that a restitutionary amount must be equally apportioned among co-defendants. Likewise, defendant does not show that it would be error for the trial court to order one defendant to pay the entire restitutionary amount. On the contrary, we believe that proper consideration of the factors mandated in OCGA § 17-14-10...