Jones v. StateJones v. State
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- Before:
- Blackburn
Billy Frank Jones appeals the sentence rendered by the trial court after he entered a nonnegotiated plea of guilty to a misuse of a firearm while hunting charge. Jones contends that his sentence of two years to serve and eight years probation is cruel and unusual punishment and that the trial court erred in requiring restitution despite his financial inability. For the reasons set forth below, Jones’ sentence is affirmed in part and reversed in part.
Jones was indicted on charges of felony murder, misuse of a firearm while hunting, and hunting on the land of another without permission. Jones pled guilty to the charge of misusing a firearm while hunting, and a nolle prosequi order was issued on the other charges. The indictment set forth that Jones:
did use a firearm in a manner constituting a gross deviation from the standard of care which a reasonable person would exercise in the situation, to wit: defendant Billy Frank Jones did shoot his firearm at Scott Dewayne Wilson, a human being who was wearing a fluorescent orange vest required by law and who did not give a reasonable person the impression of being wildlife, and said defendant Billy Frank Jones did shoot Scott Dewayne Wilson without taking reasonable care to ascertain what said defendant was shooting and did thereby cause serious bodily harm to wit: a gunshot wound to the chest of Scott Dewayne Wilson by shooting while consciously disregarding a substantial and unjustifiable risk that the said act would cause harm to or endanger the safety of another person, in violation ofOCGA § 16-11-108 (a) .
Wilson died of the gunshot wound inflicted by Jones.
The State’s proffer at the plea hearing indicated that Jones was in a tree stand approximately 78 yards from Wilson when Jones thought he saw movement, looked through his scope, and fired. Wilson’s friend, Steve, heard someone calling for help and came looking for Wilson. Steve noticed Jones and said, “I heard my friend call for help. I heard the gunshot. Have you seen anybody?” Jones replied that he had not
Jones testified that he “fired at the movement. . . . [W]here I shot was covered up with vines like a tunnel. Amd I really just guessed at it. . . .1 thought it was a coyote.” Corporal Hall with the Department of Natural Resources testified that the shooting was the result of gross negligence.
1. Jones contends that the trial court’s sentence which required that he serve two years, of his ten-year sentence, in prison constituted cruel and unusual punishment. Jones argues that his sentence is cruel and unusual because he is a 68-year-old man who is disabled with a heart condition. His doctor testified that incarceration would shorten Jones’ life to a number of weeks.
Initially, we note that where the sentence is within the statutory limits, “[[legislative discretion must be deferred to unless, under the circumstances, the sentence shocks the conscience.” (Punctuation omitted.)
McCrosky v. State.
1
See also
Lambeth v. State.
2
In the present case, the sentence is within the statutory guidelines.
Here, Jones recklessly murdered Wilson, violating both the safety etiquette required of hunters and, more importantly, the fundamental norms of a civilized society. There is no crime more egregious than the senseless homicide of a human being, and we decline to accept Jones’ argument that a sentence of two years to serve is too great a cost for such a severe transgression. Jones’ sentence does not shock the conscience. It is well under the statutory maximum sentence allowed and is not grossly out of proportion to the severity of the crime. See McCrosky, supra. Jones’ grossly negligent acts caused the death of another human being. Incarceration for two years as a result of criminally negligent acts causing the death of another is not out of proportion. The medical testimony concerning Jones’ health addressed itself to the sound discretion of the trial court. We cannot say that the trial court abused its discretion in sentencing Jones to incarceration notwithstanding Jones’ medical condition.
2. Jones contends that the trial court failed to consider the guidelines set out in
(а)
(1) The present financial condition of the offender and his dependents; (2) The probable future earning capacity of the offender and his dependents; (3) The amount of damages; (4) The goal of restitution to the victim and the goal of rehabilitation of the offender; (5) Any restitution previously made; (б) The period of time during which the restitution order will be in effect; and (7) Other appropriate factors which the ordering authority deems to be appropriate.
In the present case, two hearings were held. The initial hearing primarily dealt with the trial court’s acceptance of Jones’ guilty plea. However, at the end of the hearing, with little more than a cursory mention during the attorneys’ arguments regarding
At the hearing, the trial court made it clear that its position with regard to restitution had been decided and that the hearing was a mere formality. The trial court noted:
I think that I’ve already informally talked to both [defense counsel] and [the prosecutor] and told you that I was going to grant a restitution hearing in the case. Even though I felt like it had essentially been covered at the time of the sentencing hearing, that I’ll still go ahead and allow you to present whatever you want to present in that respect.
Later during the same hearing the trial court noted: “Well, I’m not going to re-argue restitution. I’m going to let you present what you want to present in the way of additional restitution evidence at that
time.” After the hearing, the trial court made specific findings regarding the factors outlined in
. In ordering restitution in the amount of $300 per month, the trial court relied on the fact that defense counsel urged imposition of a home confinement program, in lieu of incarceration, which would cost Jones $10 per day. The trial court reasoned that Jones was therefore able to make that same payment as restitution. The trial court stated:
[A]t the time of the sentencing hearing, it was stated in the record . . . that you urged that [Jones] go under a home confinement program that would have cost $10 a day for him to be in that program. And I find it appalling here today to say that he could pay $10 a day to stay out of jail but he can’t pay $10 a day in restitution.
In fact, however, the record reflects that counsel had said that Jones’ “family [would] help support him as far as paying for the house arrest.” During the second hearing, Jones’ counsel argued to the trial court, that Jones’ family and friends would help support him in order to pay for the house arrest program because Jones could not afford it.
[T]hree things are required in order to impose restitution as a condition of probation: (1) a restitution hearing; (2) consideration of the factors outlined inOCGA § 17-14-10 ; and (3) findings of fact. . . . UnderOCGA § 17-14-9 , “the amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages,” which are further defined inOCGA § 17-14-2 (2) as “all damages which a victimcould recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced.”
Anderson v. State. 3
We further note that any order requiring restitution would not bar a civil action against Jones to recover damages for Wilson’s wrongful death. See
(b) The trial court also erred in allowing that any restitution sums not paid in full during the term of defendant’s probation be subject to a lien.
Judgment affirmed in part and reversed in part and remanded with direction.
Eldridge and Barnes, JJ, concur.Anderson v. State, 226 Ga. App. 286 (486 SE2d 410) (1997).
Notes
McCrosky v. State, 234 Ga. App. 321, 323 (3) (506 SE2d 400) (1998).
Lambeth v. State, 257 Ga. 15 (354 SE2d 144) (1987).
Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622) (1987).