Pitts v. State

• Decision Date: 21 October 2020
• Docket Number: A20A1565
• Citation: 850 S.E.2d 486,357 Ga.App. 299
• Parties: PITTS v. The STATE.
• Court: Georgia Court of Appeals

357 Ga.App. 299

850 S.E.2d 486

PITTS

v.The STATE.

A20A1565

Court of Appeals of Georgia.

October 21, 2020

Black Law Offices, Sean Aaron Black, Toccoa, for Appellant.

W. Jeffrey Langley, District Attorney, Anna Guardino, Assistant District Attorney, for appellee.

Miller, Presiding Judge.

Brian Pitts seeks review after the trial court granted in part and denied in part his motion to terminate his sentence of probation imposed after he pled guilty to manufacturing marijuana. On appeal, he argues that the trial court exceeded its statutory authority when it shortened the length of his probation instead of terminating it and that the trial court violated his double jeopardy rights and abused its discretion by imposing additional punishment on him. Upon a close review of the record, we conclude that the trial court acted within its authority and that it did not impose any additional punishment on Pitts when it shortened his probation sentence. We therefore affirm.

In 2017, Pitts entered a negotiated guilty plea to one count of manufacturing marijuana ( OCGA § 16-13-30 (j) ). On June 2, 2017, the trial court sentenced Pitts as a first offender pursuant to OCGA § 42-8-60 to ten years’ probation and imposed a $10,000 fine.

In October 2019, Pitts filed a motion to terminate the remainder of his probation. Pitts argued that he had successfully completed 28 months of his probation without any violations or instances of bad behavior, that he had paid the fine in full, and that he was actively enrolled in college courses because he had plans to soon enter medical school. Following a hearing, the trial court denied Pitts’ request to terminate his probation, but it instead ordered that Pitts’ sentence would be shortened from ten years to six years and that his probation would thenceforth be unsupervised. This appeal followed.

1. Pitts first argues that the trial court exceeded its authority under OCGA § 17-10-1 (a) (5) (A) when it shortened his sentence instead of fully terminating his sentence. He specifically argues that there was no evidence in the record to indicate that continuing his probation would have served the standards and purposes of probation set out by statute. We disagree.

"The [trial court] is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, modify or change the probated sentence ... at any time during the period of time prescribed for the probated sentence to run." OCGA § 42-8-34 (g). Under OCGA § 17-10-1 (a) (5) (A), "the court may shorten the period of active probation supervision or unsupervised probation on motion of the defendant or on its own motion, or upon the request of a community supervision officer, if the court determines that probation is no longer necessary or appropriate for the ends of justice, the protection of society, and the rehabilitation of the defendant."

During the hearing, Pitts presented evidence that he lived in Florida during his probation and that he had fully paid off the $10,000 fine. Pitts noted that he had not been arrested for any crime, he had not violated any provision of his probation, and he had reported as directed by his supervising probation officer. Pitts also noted that he worked and attended college classes with a goal to enter medical school. Pitts maintained an "A" average in his classes. Pitts testified that, to attend medical school, he needed to perform background checks and that his active probation for a drug offense might present a problem for his enrollment. The State argued that Pitts had voluntarily agreed to a negotiated sentence of ten years and opposed any "greater benefit" than unsupervised probation. The trial court acknowledged that Pitts had acted commendably in his attempts to reform himself, but it nevertheless observed that Pitts had been convicted of a serious offense, a conviction which would ordinarily be accompanied by a sentence of imprisonment.

Upon consideration of the evidence presented at the hearing, we conclude that the trial court did not abuse its authority when it balanced these factors and only reduced Pitts’ probation sentence by four years instead of terminating it outright. We first observe that OCGA § 17-10-1 (a) (5) (A) provides that the court "may" shorten or terminate a defendant's probation upon motion, which indicates that the decision whether to shorten or terminate probation rests within the trial court's discretion. See, e.g., Ross v. Small , 355 Ga. App. 483, 485 (2) n.6, 844 S.E.2d 535 (2020) ("The use of the word ‘may’ in this statute indicates that the trial court has discretion to order genetic testing rather than being required to do so."); Stinnett v. State , 214 Ga. App. 224, 225, 447 S.E.2d 165 (1994) (whether to grant first offender treatment is within the trial court's discretion because the statute states that a trial court "may" grant first offender treatment). The trial court here considered all the relevant factors and determined that the ends of justice only supported a four-year reduction instead of a full termination. We discern no abuse of discretion in the trial court's decision. See Steele v. State , 270 Ga. App. 488, 491, 606 S.E.2d 664 (2004) (court's announcement that it would decline to modify a sentence to be more lenient "based on the nature of the offense" was not an abuse of discretion) (punctuation omitted). See also Todd v. State , 172 Ga. App. 231, 231-32 (2), 323 S.E.2d 6 (1984) ("[T]he trial court may give in its discretion any sentence prescribed by law for the offense, or probation.") (citation omitted).

2. Pitts next argues that the trial court abused its authority and discretion because the effect of the trial court's order was to improperly increase his punishment after he had already begun serving his sentence. Through this argument, it appears that Pitts is challenging the trial court's statements at the hearing that, if Pitts successfully completed six years of his probation (to end in June 2023), the court would terminate the balance of the probation. Pitts appears to be arguing that this statement from the trial court set a minimum of six years probation and that this minimum prevents him from seeking further relief from his sentence under the "behavioral incentive date" provision in OCGA § 17-10-1 (a) (1) (B). Because Pitts is not eligible for this relief in the first place, the trial court did not improperly increase his punishment.

"Once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy." (Citation and punctuation omitted.) Bell v. State , 323 Ga. App. 751, 752 n.2, 748 S.E.2d 114 (2013). "However, it is well established that double jeopardy does not prohibit the imposition of any additional sanction that could, in common parlance, be described as punishment." (Citation and punctuation omitted.) Id. at 752, 748 S.E.2d 114.

Under OCGA § 17-10-1 (a) (1) (B),

[w]hen a defendant with no prior felony conviction is ... charged with felony offenses and is sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2 or Article 3 of Chapter 8 of Title 42, and the court imposes a sentence of probation ... the court shall include a behavioral incentive date in its sentencing order that does not exceed three years from the date such sentence is imposed. Within 60 days of the expiration of such incentive date, if the defendant has not been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37, has been compliant with the general and special conditions of probation imposed, and has paid all restitution owed, the Department of Community Supervision shall notify the prosecuting attorney and the court of such facts. The Department of Community Supervision shall provide the court with an order to terminate such defendant's probation which the court shall execute unless the court or the prosecuting attorney requests a hearing on such matter within 30 days of the receipt of such order.

During the hearing on Pitts’ motion, after the trial court announced that it would revisit Pitts’ probation in June 2023, a probation officer noted that Pitts would soon reach...