*1 burden, has failed to meet this the ordinance been violated. Oertel rely powerful presumptions such, therefore, and of as he cannot on the 51-2-7. prior being that, There is also some evidence the record slapped against ground attempt bitten, Oertel his foot in an away testimony frighten Spencer. support This could an inference provoked thereby preventing attack, that Oertel his use of the presumption viciousness OCGA 51-2-7. as nonmov- summary judgment purposes, right ant for Oertel has the to have the attempt frighten Spen- favor, and, such, facts viewed in his his standing support grant summary judg- cer, alone, would not against ment him. city
Nevertheless, because the ordinance which Oertel claims Spencer’s proven, owners violated was not Oertel’s claims sur- summary judgment only vive if shows, the evidence to com- (1) (2) Spencer propensity law, mon that had the to bite and his own- knowledge propensity. supra. ers had Hamilton, The record Spencer anyone shows, however, before, had never bitten knowledge propensity. had such, defendants no such As appropriately granted summary judgment the trial court supra. Hamilton, defendants. Presiding Judge
I am authorized to state that Andrews and Judge join Ruffin in this dissent. July 16, 1999.
Decided Ridley, appellant. John Jr., H. for Copeland,
Webb,Carlock, Stair, Webb, Semler & Dennis J. Brian appellees. Amero, Parnell, J. Thomas, Hawkins & Anita W. for A99A0389. THE GLOVER v. STATE. Judge.
Ruffin, challenges imposed by John Glover the sentence the trial court upon probation, alleging the revocation of his that the sentence is longer explained than allowed below, under OCGA 42-8-34.1 As we find that the trial discretion, court acted within its and we affirm. pled guilty multiple
Glover in 1989 to counts of child molestation charges stemming repeated and related from his sexual abuse of a age. thirty years, minor under Glover was sentenced to prison with seven be served and the remainder to be general bated. In addition to conditions of the trial court probation, including seven two condi- limiting and one condition with minor children Glover’scontact tions requiring deviancy. counseling was sexual Glover to attend for Glover years. prison in 1996 after seven released from four-year-old girl making contact with a was arrested Depart- probation. church, in violation of the conditions modify pro- pro- petition Glover’s filed a or revoke ment of Corrections *2 charging violating special conditions of his bation, him with restricting minors, well as several of the contact with bation general conditions.
Following hearing, trial found that Glover had vio- court by making probation of his direct lated three of conditions engaging brought him minor, in volunteer work that contact with a counseling.1 failing The trial minor, to attend into contact with original him to ten revoked Glover’s sentence and ordered serve years, probated. of his sentence to be with the balance arguing sentence, a motion to his that under Glover filed vacate only § the trial court was authorized to revoke a OCGA 42-8-34.1 years probation. of two of his The trial court denied maximum granted application discretionary motion, and his Glover’s appeal. we appeal, challenges length sentence, On of his Glover the revocation itself. not governs length permitted of detention
1. OCGA 42-8-34.1 probation on a (492 revocation. Lawrence v. 727) (1997). Upon proof that the defendant has violated any provision probation than “other commission of a new “may probation offense,” the trial court revoke the of balance years or not more than two whichever is less.” OCGA probation If, however, 42-8-34.1 the defendant has violated his spe- the commission of a offense or the violation a of imposed pursuant section, cial condition withstanding not- provision law, other of probation more than the lesser of the revoke no balance the for the crime time of the maximum sentence authorized constituting probation. the violation of the (c). Although (Emphasis supplied.) OCGA 42-8-34.1 the trial court found that Glover violated the conditions of his (c) apply not here Glover contends OCGA does “imposed pursuant because these conditions were not to” general proba The trial court also found that Glover violated three conditions of his officer, by failing report probation moving notifying probation his without his tion officer, failing faithfully employment. to work at suitable argues applicable Thus, section is OCGA 42-8-34.1. (b), years. which limits Glover’s detention to two OCGA 42-8-34.1 (c)’s authority interpreting § 42-8-34.1 ref- There is scant to “a to this Code section.” erence Georgia Supreme § in Gear- Court of first addressed 440) (1996), inger Lee, 266 which involved v. on the violation of a con- bation revocation based defendant’s probation. originally five The defendant was sentenced to dition on a theft conviction and ten drug he conviction, but his was “thereafter modified and was remanded to a detention center an order that set forth as a ” ‘Special probation,’ requirement obey his that he Condition of all rules the detention center. Id. at 168. The defendant’s disciplinary was thereafter revoked based on his violation of four rules at the detention none of which the commission involved felony. aof The trial court ordered the defendant to serve the remain- ing prison, plus time on his sentence for theft five of his sen- drug possession, drug tence for with the balance of the sentence to be served on disciplinary Court ruled that the defendant’s *3 special [d] infractions a ‘violation of of “constitute condition’ his (c) §
bation,” and thus OCGA 42-8-34.1 authorized the trial court to (1). up probation. revoke The to the balance defendant’s Id. at 169 (c)’s Supreme § Court did not address the effect of 42-8-34.1 requirement special “imposed pursuant that a condition be to this special Code section” and did not discuss whether the conditions Gearinger “imposed pursuant § were, fact, issue in to” OCGA 42-8- Supreme broadly qualifica- Rather, stated, 34.1. the Court without solely tion, that “where . . . the violation of results from felony infraction of a condition and not from commission of a may up offense,” the trial court revoke to the balance of the defend- probation. (Emphasis supplied.) ant’s Id. at 170. (c) Supreme § Court next construed OCGA (471 872) (1996), Hampton,
Mancille c.
aof defendant’s 158 (c)’squalify- ignored again, Supreme § 42-8-34.1 Court
Id. Once ing language, making “imposed section,” no this Code types among conditions. different distinction implicitly Supreme Gearinger Manville, Thus, in “imposed pursuant recognized phrase this Code section” is imposition meaningless, does not authorize the as 42-8-34.1 recently explained probation. Rather, as we conditions (505 816) (1998), App. 37, 38 SE2d State, v. 234 Ga. Williams authority originates elsewhere: (a) judge expressly 17-10-1 authorized OCGA
A trial any part probate suspend the entire sentence all or to under such judge proper. regulations deems rules and may 12 which 42-8-35 sets forth conditions list, however, is not exclusive. A This certainly to determine the trial court terms and conditions of has broad discretion express
probation. In the absence of why any authority contrary, logical we see no reason suspension reasonable approved. trial court should not be a sentence omitted.) (Citations, Staley punctuation emphasis See also v. and 598 491) (OCGA (505 (1998) App. 597, SE2d 17-10-1 State, 233 Ga. (a) (1) give sentencing judges broad discretion “has been construed fashioning appropriate tailored to the of soci- defendant’s circumstances as well as interests individual (1) victim”); App. ety State, 162, 211 163 and the Penaherrera v. Ga. (438 661) (1993) (“[a]ny condition’ SE2d ‘reasonable (1) (436 imposed”); Ballenger App. SE2(l State, v. 793) (1993). Gearinger Following Court’s decisions give subsequent attempted cases, Manville, Court, in two has this (c)’s meaning phrase “imposed pursuant to 42-8-34.1 (492 727) App. State, 228 Ga. section.” See Lawrence v. (1997); Dunlap (1998). v. *4 revoked for the commission Lawrence, the defendant’s was pay as a of misdemeanor batteries and failure to fines ordered two special The trial court sentenced the defend- condition of sentence, ant to serve the of his which was four-and-one-half balance years, of the batteries. This Court vacated based on the commission ground § allowed the trial court the sentence on the to revoke a maximum misdemeanor batteries. that 42-8-34.1 the
of two of the defendant’s sentence for pursu- that, However, instructed the Court (c), § the court could revoke the balance of ant to 42-8-34.1 the trial nonpayment fines, the on his because defendant’s sentence based pursuant “imposed special payment to this condition of fines was apparently this conclusion The Court based section.” Id. Code § (d)’s repara- payment “[t]he of restitution or 42-8-34.1 reference tion, costs, or fines.” (d) imposition the does not authorize
However, 42-8-34.1 merely probation; special states that the it fines as a condition paid by may require any in one the court” to be fines “ordered lump periodic above, As noted other Code or in installments. sum statutory authority imposition special provide con- sections ditions. specifically particular, imposition is autho- In of fines (e). §§ State, 42-8-34 See Whitehead v. rized OCGA 17-10-8 and (2) (429 536) (1993); App. Todd v. 891, (1) (323 6) (1984). “imposed” Thus, fines are not probation “pursuant despite § 42-8-34.1, to” as a they in that section. the fact that are mentioned explanation Moreover, Lawrence noted without Gearinger, requirement condition at issue in comply that the defendant disciplinary spe- rules, the detention center’s was “not a with [OCGA 42-8-34.1].’” ‘imposed pursuant However, cial condition our (c) governed Gearinger. Court ruled that 42-8-34.1 essentially Gearinger wrongly Thus, was Lawrence ruled that Supreme Court, decided authorized to make. a determination this Court is not Dunlap, factually case, which is similar to this defendant by taking, was sentenced to ten for theft but the sentence was suspended upon payment the defendant’s of a fine and the condition county. later, week banishment from the Id. at 82. One defend- condition, ant the trial court violated the banishment ordered years. appeal, argued him confined for ten On the defendant banishment was not a condition to OCGA § 42-8-34.1, and could revoked thus (b). agreed Citing Lawrence, to 42-8-34.1 this Court the trial court’s denial of the defendant’s motion to vacate reversed his sentence. Id. at 83-84.
Dunlap exactly, instead fashioned did not follow Lawrence but Dunlap “imposed pursuant its own definition of to this Code section.” requires the trial at noted hearing, including: [s] confinement,” “alternative to consider “com- munity service, centers, intensive diversion centers, detention alternative other appropriate by alternative to confinement deemed the court or as county.” According Dunlap, any provided the state or Id. 83. hearing, opposed at a revocation as to a condition pursu- part “imposed sentence, give meaning attempt to” this ant *5 160 support pursuant
phrase “imposed finds no to this Code section” (b) Although statutory language. directs the trial subsection authority incarceration, the alternatives to to consider certain special imposing alternatives as for such (b). §§ statutes, and not in subsection See OCGA 42-8- in other found through 42-8-35.6. 35.1 special Gearinger Dunlap Further, asserted that the “imposed at to 42-8-34.1 because it was
was probation,” part rather than as of the defendant’s the revocation the Dunlap, supra Gearinger however, itself, sentence. at 83. modified; defendant’s was it does not states that the hearing at a revocation based indicate that the modification occurred on a violation of (b), probation, required as 42-8-34.1 or that the special as an “alternative to confinement” condition was Gearinger, supra pursuant at Trial to that subsection. See 168.2 authority modify “in the terms of courts have broad manner deemed advisable.” OCGA (g);Staley, supra
§ 42-8-34 at 599. assuming Hence, we have no basis for that the modification of the Gearinger hearing probation in occurred at a revocation defendant’s And, did, if it as described in 42-8-34.1 even we cannot assume (c) Gearinger’s that 42-8-34.1 that that was the basis conclusion — Gearinger completely particularly controlled the case when failed “imposed meaning phrase to address the Dunlap suggested, If, section.” special the critical issue is whether the (b), authority under the condition was Supreme we believe that its would have included such facts analysis. Supreme Gearinger
We are bound Court’s decisions recognized Manville, which no limitations on the conditions (c). subject give §to 42-8-34.1 It is not the function of this Court to meaning language Supreme that the Court has chosen to disre- gard, or to assume Court decisions turn on opinions. Accordingly, facts not disclosed that Court’s we overrule Dunlap to the extent that those cases hold Lawrence that phrase “imposed pursuant type spe- to this Code section” limits the (c) applies.3 cial conditions to which 42-8-34.1 2 emphasizes Gearinger concurrence the defendant was “remanded state, following probation. Gearinger the modification his does not to a detention center” however, center detention center of the contem this detention was sort plated by OCGA 42-8-34.1 and 42-8-35.4. §§ judge wrote a concurrence in Lawrence. We note that one analysis agrees majority’s specifically that it with the of the error made concurrence by states disagrees only with the direction to the trial court on remand. Law the trial court and rence, (Smith, J., supra concurring specially). To the extent that Lawrence constitutes (a). issue, Appeals binding precedent See Court of Rule 33 on this it must be overruled. revocation of Glover’s governs
OCGA § three of the conditions violating tion for authorized to revoke to the balance of Glover’s up trial court was In sen- See at 170. (approximately years). Gearinger, supra bation ten with the remainder to be tencing Glover to the trial court acted well within its discretion. served on we affirm the trial court’s denial of Glover’s motion to Accordingly, *6 vacate his sentence. concurrence notes that
2. OCGA § court, hearing, directs the trial in a revocation to consider the use certain “alternatives to confinement.” We have held that confinement in a “imprisonment jail penitentiary, primarily refers to which is and that the “alternatives to confinement” are intended to punitive,” constitute “suitable short of revocation of responses probation.” Penaherrera, (b), “[i]n Under OCGA 42-8-34.1 the event the supra. that meet the criteria for said court determines defendant does not alternatives, probation revoke the balance of or not years more than two in whichever is less.” The special concurrence contends that the trial court determined that Glover did meet the criteria for such alternatives and that the in year apply. limitation set forth subsection therefore did not contention is for several reasons. misplaced This
First, and most the revocation order states important, expressly satisfy that . . . finds that the Defendant does not “[t]his incarceration alternatives.” The concurrence dismisses this by that the revocation order was a express finding noting “apparently However, by attorney’s form drafted the district office.” we are aware of no that an order of a court is to less authority holding given be by effect if it is drafted a which is in fact a common occurrence. party, Indeed, [in we have held that “once the a specifically findings they are] order drafted posed party adopted of the court.” Williams v. findings Stepler, bec[o]me 167) (1997). Accordingly, 595-596 we see no basis to disre- finding eligible the trial court’s that Glover was not gard express alternatives to incarceration. concurrence’s of the trial court’s disregard express is its belief that the trial court fact sentenced
finding upon based to a detention center as an alternative to incarcera- probation tion, and thus must have concluded that Glover was for such eligible in the trial order nothing alternatives. court’s revocation Indeed, nowhere in the revocation order is this assertion. supports Rather, detention center” even used. the order phrase “probation states that the probation
it is . . . ORDERED AND ADJUDGED sentence REVOKED in [Glover’s] provisions law, hereby and the Defendant accordance with Center or such to serve 10 a Detention required the Director of Corrections or the Sheriff of Cobb place as shall direct. County provides
The order further that Glover’s will be reinstated sentence. completion ten-year upon an to incar- The use of detention centers as alternative (a), OCGA 42-8-35.4 which states that ceration is authorized addition to other terms and conditions of . . . the “[i]n trial that a defendant. . . shall satisfac- judge may require complete torily, as a condition of. . . of confinement program Although detention center.” the trial court’s order included term “detention center” generic describing possible places incarcerated, might nothing suggests where Glover the order the trial court was in fact imposing requiring period tion Glover to serve of confinement in a statutory Indeed, “probation detention center.” the order did not even require in any Glover to serve time detention ordered but that he serve ten the Director of place Corrections or the Cobb sheriff select. The County might fact that Glover was ordered to serve ten of confinement shows that the trial court did not *7 intend to a impose probation, but intended to that Glover be incarcerated for an entire require decade. See Pitts v. (3) (426 257) (1992) (sentence State, 637 SE2d App. incarceration “denotes continuous of confinement in a period jail or freedom”). penitentiary by uninterrupted periods Compare (90 Penaherrera, in supra 270-day period probation detention incarceration). center constitutes alternative to Although concurrence notes that Glover for a time was held the Cobb County Adult Detention Facility, appears it that this is simply the county jail where Glover was held after being arrested for the tion violations and pending hearing. Moreover, revocation there is no indication in the record that the Cobb County Adult Detention is, fact, Facility statutory “probation detention center” or that all confined there are persons serving periods of confinement as condi- tions of Finally, by authorized the trial court’s revoca- order, tion Glover has since been transferred to a state penitentiary, undoubtedly which is place incarceration.4 4 currently being concurrence that states there is no evidence Glover is held penitentiary. However, nowhere in its brief does the State contradict Glover’s factual currently being Accordingly, pursuant statement that he is so incarcerated. to Court of (b) (1), Appeals “appellant’s may acepted Rule 27 statement of facts this Court as true.” Moreover, 30, 1998, stating rep “[i]t on June the trial court entered an order has been Phillips [Glover] resented to the Court that sentence confinement at the State
163 circumstances, especially light Under all of these and express finding eligible any trial court’s Glover was not for alter incarceration, natives to the revocation order cannot be construed as other than an order that Glover be incarcerated for a anything period any of ten the Director of Corrections or Cobb place County cannot might Accordingly, rely sheriff select. we on OCGA 42-8- revocation, ten-year 34.1 as a basis for but must upholding 5 as discussed in Division l.* rely OCGA § Johnson, J., J., J., Judgment McMurray, C. P. P. Pope, affirmed. Andrews, J., Smith, Barnes, Miller, JJ, P. con- Ellington Phipps, Blackburn, J., J., cur. P. concur Eldridge, specially. Presiding Judge, concurring specially.
Blackburn, I concur the result reached I cannot majority, agree but analysis State, with the therein or the of Lawrence v. overruling (492 727) (1997) Ga. or v. Dunlap App. 640) (1998). The trial court sentenced to ten properly at a deten- tion an authorized alternative option, pursuant to OCGA 42-8-34.1, for three violations of probation pur- suant to OCGA 42-8-34.1. provides:
At hearing, upon proof that the defendant any provision has violated other suspension felony offense, than commission of a new the court shall consider the use of alternatives to include ser- community vice, centers, intensive diversion probation deten- centers, tion alternative other alternative to deemed appropriate by confinement or as provided by county. the state or In the event the court determines that does not meet the criteria defendant alternatives, said revoke the balance of proba- tion or not than more whichever is less.
(Emphasis supplied.)
In revoking probation, the revocation court used an “alternative sentence, to confinement” and revoked ten of Glover’s to be Buford, Georgia” directing produced hearing. Prison in and that Glover proper concurrence states that “Glover contends that the court’s otherwise ten-year ‘illegal,’ longer serving revocation is now because he is no it in an ‘alternative to ” However, appellate confinement.’ nowhere his brief does Glover assert the trial court’s,ten-year proper” illegal only upon revocation was “otherwise or that it became his facility. to a state transfer correctional going to follow the State’s recom- center: “I’m in a detention served years at the detention center.” him to ten mendation and sentence (b). doing two-year so, the maximum See OCGA apply, requirement because, under did not of OCGA only “[i]n two-year requirement applicable becomes statute, the the event such not meet the the court determines that the defendant does confinement].” (Emphasis supplied.) [to criteria for said alternatives Id. Accordingly, of ten to served the court’s revocation (b). authorized under OCGA 42-8-34.1 detention center was meaning majority’s regarding “imposed pursuant discussion this Code section” as contained OCGA 42-8-34.1 therefore unnecessary; and no cases need be overruled. apparently order,
I note that the which was attorney’s office, states that the trial a form drafted district satisfy court found that Glover did not incarceration alternatives. directly inapposite is, however, the form order This statement on the trial sentence of to an alternative court’s Glover namely delivery a detention and actual Glover’s such despite language such, that, center. As it is clear the erroneous of the order, the trial court did indeed find that Glover satisfied the requirements an to be sentenced to alternative to just it sentenced Glover to such an alternative. properly order,
Pursuant to the revocation court’s Glover was County Facility. However, sent to the Cobb alleges Adult Detention subsequently Phillips that he was transferred to Correctional (DOC) department prison facility. Institution, a state of corrections proper ten-year Thus, Glover contends that the court’s otherwise rev- “illegal,” longer serving ocation sentence is now because he is no init confinement,” and, such, an “alternative to his revocation should years have been for a maximum of two to OCGA 42-8-34.1 illegal He filed the instant “motion to sentence,” vacate and the revocation court denied such. Court,
There is nowhere in the record before this evidence is, fact, that Glover his revocation sentence in a manner other than that i.e., ordered the revocation in an “alterna- Further, Court, tive to confinement.”6 before this there is no tran- script hearing illegal sentence, on Glover’s motion to vacate revocation court’s order does not indicate a basis for its denial of the motion.
However, above, as noted the court’s revocation of ten Glover, Only brief, Georgia in his has made such statement. DOC sent a County Superior stating letter to the Clerk of the Cobb the DOC was “unable to (a) (3) (A) custody [Glover],” requires assume because 17-10-1 service of this case community (probation) facility county jail. corrections or in a *9 “illegal” under center was not OCGA in a detention serve (b). facility prison alleged to a state DOC transfer of Glover illegal. legal revocation sentence not render an otherwise would prison Assuming in to a DOC contra- was in fact transferred Glover order, not render the court’s such does vention of the revocation requiring center, in a detention order ten to be served court’s “an illegal under sentence” argues that, even if he is his revocation sen- Glover also probation “alterna- in a detention such center is not an tence tive to confinement,” a detainee because “there is no difference to prison in or a whether he is housed detention center.” faulty argument premised upon the notion that an “alter- Glover’s subjective percep- upon native to confinement” is based tions thereof. a defendant’s jail imprisonment in The confinement referred to means penitentiary, type or primarily punitive, which is rather than the [c. App. State, of confinement described Pitts (3) (426 257) (1992)], primary goal 635, 637 where the Georgia is rehabilitation. . . . law thus authorizes a trial probation court to condition a defendant’s on limited con- finement in a detention or or diversion center own home. Such does not constitute which refers to con- uninterrupted custody jail penitentiary. tinuous and 661) (1993). 162, Penaherrera v. 211 Accordingly, probation confinement in a detention center is an alter- prison, perceive native to incarceration even if does not it as such. (b)
The headnote of the 1989 amendment to OCGA 42-8-34.1 specifically provide states that such amendment was “to for the revo- years thereof, cation of the balance of or not more than two qualification regard- less, whichever is violations.” There was no ing type going “special” “general” of violation as to either a p. con- Thereafter, dition of Ga. L. 856. in furtherance of (b) goal, legislature specifically provided its subsection “upon proof any provision that the defendant has violated [the] offense,” tion . . . other than commission of a new confinement, if revocation court should consider alternatives to and applicable, not “revoke the balance of or not more than two whichever is less.” Id. majority “meaningless”
Thus, would have to find as not language, “pursuant section,” as contained in OCGA (b) (c), plain language requiring § 42-8-34.1 but also the of subsection two-year maximum confinement for a violation of condition of necessary a new offense. It would be other than (b) (c) § 42-8-34.1 in order to of OCGA rewrite both subsections (c) pres- majority’s interpretation. support ently Subsections “meaningless.” harmony, part being together with no work guidelines provides when Subsection (2) (1) confinement, or, thereof, lieu considers alternatives court confinement for a violation that is non- felony. by providing gaps alternative, and fills in the Subsection *10 (1) guidelines a when a trial court considers severe,
more revocation felony, by probation a a condition of the commission of violation of (2) imposed by during a condition revocation a violation of hearing, “pursuant prior i.e., Code to this section.” revocation Clearly, original probation sentence is revoked for less when an always happen probation, when, as will almost than the balance of (b), only years pursuant at a are revoked to OCGA may probation, conditions, time, term of with be reinstated a second by original Or, for the remainder of the sentence. the revocation court imposed pursuant confinement is to OCGA when an alternative to (b), may by imposed certain conditions thereto the rev- period conditions, ocation court and a with reinstated original happened in for the remainder of the this case Glover’s sentence was sentence. That is what — revoked for ten and bal- original probation, by conditions, ance of the with was reinstated revocation court. language “imposed pursuant
It is these instances to which the speaks. only way this Code section” could be imposed “pursuant section,” a Code section that solely proceedings, deals with revocation is if the condition is imposed during proceeding. probationer Thereafter, a revocation already “two-year has had one bite at the or alternative to incarcera- (b), apple again tion” for contained in and is subsection before obviously, Then, violation of an condition. the more severe revocation of the balance of section is warranted under sub- (c). majority’s “special Further, the distinctions between conditions” “general original probation and conditions” of an sentence noth- add ing analysis legislature provided in this case. The has that a original probation, violation of condition of an other than the felony guide- offense, commission of a warrants revocation under the lines of subsection After a revocation to OCGA (b), § 42-8-34.1 revokes an term of for two revokes to an alternative to confinement for a term less than the bal- probation, any ance of condition the revocation court as a result of the alternative to confinement and/or reinstatement of considered as a “special bation section.”
this Code
Lee,
(1996),
OCGA 42-8-34.1 provides: § If the violation of or suspension alleged a proven by preponderance of the evidence or the defend- ant’s admission is the commission of a offense or the violation condition special imposed pursuant to this section, Code notwithstanding law, other provision may the court revoke no more than the lesser of the balance the maximum time of the sentence autho- rized to be for the crime constituting the violation probation. of the
Mancille c. Hampton,
(1996),
Lawrence, supra, involved violation of a (d), to probation imposed pursuant OCGA 42-8-34.1 and thus no two-year applied. limit This subsection states: costs, or fines or reparation, of restitution payment in one sum or in lump be may payable
ordered the court after consid- as determined periodic payments, and of and circumstances of the case of all the facts eration shall, in the Such ability pay. payments defendant’s made either to the sentencing judge, discretion or, if court is a sentencing sentencing clerk of the court, court, court, superior state probate said court. office that, fines be ordered a court argues although
The majority (d), imposed by fines cannot be OCGA this as it fails to agree position, appreci- section. I cannot with same (b) which, above, mandate of OCGA 42-8-34.1 discussed ate the hearing, impose at revocation alternatives allows The use of fines would fall under appropriate. confinement it deems rubric, as would other OCGA this imposition does allow the of fines or other condi- of probation. tions the defendant violated a Dunlap, supra, his banishment from certain areas which had not
probation requiring and no new offense was hearing, been Thus, involved. that condition had not been 42-8-34.1, could revoked. reasons, I with the disagree analysis major-
For the above and see no basis to overrule the cited cases. ity, Judge Eldridge joins opinion.
I am authorized to state that this July 16, 1999 Decided O’Brien, appellant.
Dennis C. for Head, Bernes, Attorney, Nancy Patrick H. District Debra H I. Jordan, Hornbuckle, Attorneys, appel- Bruce D. Assistant District lee. *12 v. STATE FARM MUTUAL AUTOMOBILE
A99A0390. WILSON INSURANCE COMPANY. Judge.
Eldridge, motorist, inju- an uninsured Strong, Diane Wilson sued Sonia timely vehicle collision. Wilson allegedly ries sustained motor