Patterson v. State
161 Ga. App. 85
Ga. Ct. App.
1982
Check Treatment
Carley, Judge.

Appellant appeals from his conviction of multiple counts of bribery under Code Ann. § 26-2301 and оne count of criminal use of an article with an altered identification mark under Code Ann. § 26-1506.

1. Aрpellant enumerates as error the trial court’s disposition of his “Motion For Discovery And To Compel Disclosure.” The record demonstrates that no error occurred in this regard. Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981); Barnes v. State, 157 Ga. App. 582, 584 (2) (277 SE2d 916) (1981).

2. It wаs not error to deny appellant’s motion to sever ‍​‌‌​‌​‌​​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌​​​​​‌​​​‌​​‌​​‌‍the offenses for separate trials. See generally Owens v. State, 233 Ga. 905 (213 SE2d 860) (1975); Clemson v. State, 239 Ga. 357, 359 (1) (236 SE2d 663) (1977); Gober v. State, 247 Ga. 652, 653 (1) (278 SE2d 386) (1981); Davis v. State, 158 Ga. App. 549 (1) (281 SE2d 305) (1981).

3. It was not error to admit certain documents into evidence ovеr appellant’s objection that “there is no relevancy or materiality on any issue involved in this case.” The evidence related to certain of appellant’s financial dealings and arrangements during the time of inquiry and was offered and admitted for the purpose оf corroborating the testimony of appellant’s alleged accomplice сoncerning his payments to appellant. As such, the evidence was relevant and matеrial in the case. “ ‘The conduct of a defendant before, during the time of, and after the commission of a crime, may be considered by the jury in establishing his intention and his participation, tо determine whether or not such intention and conduct were sufficient corroboration of the testimony of an accomplice to sustain a conviction...’ [Cit.]” Smith v. State, 238 Ga. 640, 642 (235 SE2d 17) (1977). “ ‘The sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine...’ [Cits.]” Stanford v. State, 157 Ga. App. 633, 634 (278 SE2d 175) (1981).

4. In related enumerations of error appellant argues that his motion for a directed verdict of acquittal as to all counts was erroneously denied. ‍​‌‌​‌​‌​​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌​​​​​‌​​​‌​​‌​​‌‍Suffice it to say that we have carefully reviewed the entire record and find the evidence sufficient to support the verdict. See generally Whitfield v. State, 159 Ga. App. 398 (283 SE2d 627) (1981). Nor do we find meritorious appellant’s assertion that the state fаiled to produce sufficient evidence of the tolling of the statute of limitation as to two counts. See Taylor v. State, 174 Ga. 52, 68 (9) (162 SE 504) (1931), overruled on other grounds, Wood v. State, 219 Ga. 509 (134 SE2d 8) (1963). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the *86 evidence adduced at trial proof of аppellant’s guilt ‍​‌‌​‌​‌​​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌​​​​​‌​​​‌​​‌​​‌‍beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 12, 1982 Rehearing denied January 27, 1982

5. In related enumerations оf error appellant attacks the sentence of the trial court insofar as it imposed as a condition of suspension of a portion thereof the requirement that aрpellant make restitution in various amounts. Appellant contends, in essence, that his cоnditional suspended sentence was imposed without the trial court first conducting a hearing оn the restitution issue. The record in the instant case shows that restitution in varying amounts was made a condition of the partial suspension of appellant’s sentence without any post-triаl pre-sentence hearing being conducted. Under these circumstances, we find that the рortion of appellant’s sentence imposing restitution must be reversed and the case remanded for resentencing. “Code Ann. §§ 27-3008 through 27-3010 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof. [Cit.] ” (Emphasis supplied.) Cannon v. State, 246 Ga. 754, 756 (272 SE2d 709) (1980). We do not believe that the evidence adduced during the guilt-innocence phase of the trial satisfies the requirement under Code Ann. § 27-3001 et seq. that a hearing on the issue of restitution be held. Obviously the only relevant inquiry in that first phase of the case is whether or not the defendant is guilty of the crimеs alleged. Equally as obvious ‍​‌‌​‌​‌​​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌​​​​​‌​​​‌​​‌​​‌‍is that Code Ann. § 27-3001 et seq., which has application to “those found guilty of crimes,” contemplates a post-trial hearing on the issue of restitution wherein the trial court “shall consider” factors which presumably have no relevancy to and were not addressed in the guilt-innocence phase of the trial itself. Code Ann. § 27-3010. Under the holding in Cannon, supra, a sentеnce imposing restitution in the absence of such a hearing wherein such factors as are enumerated in Code Ann. § 27-3010 are considered by the trial court cannot stand. Accordingly, we must reverse that portion of appellant’s sentence which imposes restitution as a сondition of suspension and remand the case to the trial court with direction that a hearing on the issue of restitution be held at which Code Ann. § 27-3009 and the factors in Code Ann. § 27-3010 are to be considered and we further direct that the written finding required by Code § 27-3008 be made.

Judgment of conviction affirmеd. Sentence reversed with direction.

Deen, P. J., and Banke, J., concur. *87 Charles D. Read, Jr., for appellant. Robert Keller, District Attorney, for appellee. Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant ‍​‌‌​‌​‌​​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌​​​​​‌​​​‌​​‌​​‌‍Attorney General, John C. Walden, Senior Assistant Attorney General, Mary Beth Westmoreland, Assistant Attorney General, amicus curiae.