In 1991, a jury found Petitioner Julia Findley guilty of two counts of theft by taking and 106 counts of forgery. The trial court sentenced her to concurrent five-year terms for the thefts and to consecutive ten-year terms for the forgeries. The trial court further provided for probation of the sentences after five years, on condition that Petitioner make restitution in the total amount of $52,000, payable in weekly installments of $100. In 1996, the trial court revoked 30 days of the probation because of Petitioner’s failure to timely pay the restitution. In 1998, the trial court revoked the entire balance of the probated sentences on several grounds, including Petitioner’s failure to make the restitution payments to the victim. Thereafter, she insti
*55
tuted habeas corpus proceedings. The habeas court concluded that revocation of the entire balance of the probated sentences was excessive under OCGA § 42-8-34.1 (c), as interpreted in
Glover v. State,
When a probationer violates “a special condition
imposed pursuant to this Code section,. . .
the court may revoke . . . the balance of probation. . . .” (Emphasis supplied.) OCGA § 42-8-34.1 (c). In
Glover v. State,
We granted certiorari and, in Glover II, supra, reversed the Court of Appeals, holding that the phrase “imposed pursuant to this Code section” is not ambiguous or, in the alternative, that any ambiguity therein must be construed against the imposition of increased punishment for a probationer. Under either analysis, OCGA § 42-8-34 (c) does not permit the revocation of the entire balance of a probated sentence wherever “there is a violation of any special condition legally imposed.” Glover II, supra at 640. However, Glover II did not specify precisely what the phrase does mean or indicate which special probationary conditions are included within its limited scope. The question presented in this case is whether the failure to pay restitution is the violation of a special condition “imposed pursuant to” OCGA § 42-8-34.1 which would authorize revocation of the entire balance of Petitioner’s probated sentences.
Because the General Assembly is presumed to intend something by passage of the act, we must construe its provisions so as not to render it meaningless.
Powell v. Studstill,
The phrase also necessarily encompasses any special conditions of probation which are expressly authorized pursuant to the Code section. “While OCGA § 42-8-34.1 itself does not define ‘special condition,’ the Court of Appeals in Dunlap v. State and Lawrence v. State, plainly found that certain special conditions are authorized under that Code section.” Glover II, supra at 640. In Lawrence, the special condition was “[t]he payment of restitution or reparation, costs, or fines ordered by the court. . . .” OCGA § 42-8-34.1 (d). In finding that to be a statutorily authorized special condition, Lawrence followed this Court’s prior holding that, when a probationer fails “to make court-ordered payments as directed, the revocation court would [be] authorized to revoke his entire . . . probated sentence. . . .” Manville v. Hampton, supra at 859 (2). Although the Court of Appeals overruled Dunlap and Lawrence in Glover I, the viability of those two cases was restored by our holding in Glover II that they were authority for the proposition that certain special conditions were authorized under OCGA § 42-8-34.1. Thus, a failure to make the payments enumerated in OCGA § 42-8-34.1 (d), whether ordered by the trial court at the time of original sentencing or by the revocation court in a subsequent revocation proceeding, will authorize the revocation of the entire balance of the probated sentence.
Because the defendant in Glover had no previous probation violation, the special conditions Glover violated were only those imposed *57 at his original sentencing. Dunlap v. State, supra. Compare Gearinger v. Lee, supra. None of those special conditions involved the payment of restitution, reparation, costs or fines pursuant to OCGA § 42-8-34.1 (d). Therefore, the court was not authorized to revoke the entirety of Glover’s probated sentence pursuant to subsection (c) of OCGA § 42-8-34.1. In this case, however, Petitioner’s probation has already been revoked once before for failing to pay court-ordered restitution to the victim. The payment of that restitution was reimposed as a special condition of probation after the 1996 revocation proceeding. Thus, the court was authorized to revoke the entire balance of Petitioner’s probated sentences because she had violated a special condition of probation reimposed after her first revocation proceeding, and her violation related to the non-payment of court-ordered restitution. In either case, Petitioner’s violation was of a special probationary condition “imposed pursuant to” OCGA § 42-8-34.1.
Although we are reversing the habeas court, we are compelled to note again that OCGA § 42-8-34.1 (c) is not a model of clarity and that its construction, as presently worded, is problematic.
Glover II,
supra at 641, in. 2;
Manville v. Hampton,
supra at 860 (3). Indeed, this Court in
Glover II
was sharply divided over the proper interpretation of the statute. Considering the statutory language and its appellate history, the habeas court acted in the understandable belief that
Glover II
required it to rule as it did. Indeed, the habeas court’s conclusion that Petitioner’s sentence is void is entirely consistent with the Court of Appeals’ holding, on remand, that in
Glover II
this “Court did not disagree . . . that OCGA § 42-8-34.1 does not authorize the imposition of any special conditions of probation.”
Glover v. State,
Judgment reversed.