Turner v. State
312 Ga. App. 799
Ga. Ct. App.2011Background
- Turner pleaded guilty to three counts of theft by taking as a fiduciary and was sentenced as a first offender to 15 years with 30 years on probation; restitution ordered at $1,877,531.03.
- MGMS suffered total losses of $1,883,542.59 from fictitious loans; this amount excludes commissions and bonuses paid to MGMS employees.
- Barbara Morris, Turner's close associate, created fake loans and later killed herself during the investigation; Turner acknowledged knowledge of Morris's actions.
- Evidence showed approximately $1.3 million of the losses attributed to Turner and about $508,938.32 to Morris, with computer-user identifications used to create the loans.
- The trial court set restitution payments in $500 monthly increments, allowed for deductions for insurance payments, and expressed belief the missing assets may exist; the court also noted accounting-related fees.
- On appeal, the Georgia Court of Appeals vacated the portion of restitution related to $48,988.44 for accounting/auditing/attorney fees and remanded for further proceedings; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly considered required factors in setting restitution. | Turner argues court failed to consider financial condition and OCGA § 17-14-10 factors. | State contends court did consider factors; record shows evidence on resources, needs, damages. | Yes; court properly considered factors and exercised discretion. |
| Whether restitution amount is supported by a preponderance of the evidence. | State proved MGMS loss of $1,883,542.59; Turner must show financial inability. | Record insufficient to support $48,988.44 in fees; not tied to damages. | Partial remand; the $1,883,542.59 is supported, but $48,988.44 must be vacated and re-proven on remand. |
| Whether Turner can be held responsible for the full restitution despite Morris's involvement. | Multiple offenders may be liable for the full amount if warranted by contribution and circumstances. | Court may apportion liability but not required to split; here full amount permissible given Turner's involvement. | Court may order full amount; apportionment not required. |
Key Cases Cited
- Dorsey v. State, 206 Ga.App. 709, 426 S.E.2d 224 (1992) (Ga. App. 1992) (transcript review suffices to show consideration of financial condition for restitution)
- McCart v. State, 289 Ga.App. 830, 658 S.E.2d 465 (2008) (Ga. App. 2008) (overruled requirement of written findings for restitution factors)
- Adams v. State, 291 Ga.App. 681, 662 S.E.2d 782 (2008) (Ga. App. 2008) (cited for preponderance standard and restitution review; later disapproved regarding written findings)
- Ezebuiro v. State, 308 Ga.App. 282, 707 S.E.2d 182 (2011) (Ga. App. 2011) (sufficiency of evidence to sustain full restitution award)
- Regent v. State, 306 Ga. App. 616, 703 S.E.2d 81 (2010) (Ga. App. 2010) (guidance on restitution damages and proof)
- Mayfield v. State, 307 Ga.App. 630, 705 S.E.2d 717 (2011) (Ga. App. 2011) (recognizes review of restitution transcripts and factors)