Tuttle v. State

• Decision Date: 01 December 1994
• Docket Number: No. A94A2265,A94A2265
• Parties: TUTTLE v. The STATE.
• Court: Georgia Court of Appeals

Page 863

450 S.E.2d 863

215 Ga.App. 396

TUTTLE v. The STATE.

No. A94A2265.

Court of Appeals of Georgia.

Dec. 1, 1994.

Summer & Summer, Daniel A. Summer, Chandelle Summer, Gainesville, for appellant.

Lydia J. Sartain, Dist. Atty., W.M. Brownell, Jr., Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Tuttle entered pleas of guilty to two counts of aggravated child molestation, two counts of aggravated sodomy, and five counts of child molestation. The victim of each offense was defendant's daughter. In this appeal, defendant raises two enumerations of error which relate only to his sentencing. Held:

1. In the first enumeration of error, defendant contends that the superior court erred in considering a report based in large part upon results of penile plethysmograph testing in determining defendant's sentence since evidence of the results of such testing has been held inadmissible. Gentry v. State, 213 Ga.App. 24, 25(2), 443 S.E.2d 667. However, we are unable to reach the merits of defendant's contention since this issue was not preserved for appellate review by any objection below. While there was some reference at the sentence hearing to the report of which defendant now complains, and it was clearly apparent that the superior court had received and would consider the report, there was no objection to consideration of the report on the grounds now stated by defendant. This court will not consider issues raised for the first time on appeal. Chalker v. State, 184 Ga.App. 596(1), 362 S.E.2d 152.

2. Defendant's remaining enumeration of error maintains that the superior court erred in imposing as a condition of probation that defendant have no direct or indirect contact with his seven-year-old daughter until she reaches the age of majority. While defendant acknowledges that this court has upheld conditions of probation which restricted contact between family members for brief periods of time, he argues that the duration of the ban on contact imposed upon him is an abuse of the superior court's discretion and a violation of his rights under the Fifth and Fourteenth Amendments of the Constitution of the United States.

"The 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. Parkerson v. State, 156 Ga.App. 440 (274 SE2d 799) (1980). '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 and punctuation omitted.) Pitts v. State, 206 Ga.App. 635, 637(3) (426 SE2d 257) (1992)." Ballenger v. State, 210 Ga.App. 627, 628(1), 436 S.E.2d 793. See also State v. Collett, 232 Ga. 668, 670, 208 S.E.2d 472.

In some instances a condition of probation involves a waiver of a defendant's rights including those protected by state or federal constitutions. However, the conditions of probation are not imposed involuntarily, but are accepted by convicted criminals as a condition necessary to avoid incarceration in the penitentiary. Falkenhainer v. State, 122 Ga.App. 478, 480, 177 S.E.2d 380. Whether the waiver of rights required under the condition of probation amounts to an abuse of discretion depends upon whether it is "related to a legitimate purpose underlying...