469 S.E.2d 293 | Ga. Ct. App. | 1996
PRESHA
v.
The STATE.
Court of Appeals of Georgia.
*294 Andrew W. Clark, Thomasville, for appellant.
H. Lamar Cole, District Attorney, Valdosta, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, Thomasville, for appellee.
BEASLEY, Chief Judge.
After pleading guilty to two counts of selling cocaine, OCGA § 16-13-30(b), Presha was sentenced to serve two consecutive terms of thirty years, the first ten while incarcerated and the remainder on probation. As a condition of probation, the court required that Presha, a lifelong resident of Thomasville, leave and not return to the area of Brooks, Colquitt, Echols, Lowndes, and Thomas counties. He asserts that such a lengthy banishment violates both the Eighth Amendment to the United States Constitution and the Georgia Constitution of 1983, Art. I, Sec. I, Par. XVII. Presha also seeks to invoke OCGA § 38-2-460, but it does not apply to his case.
We cannot reach either constitutional issue because Presha made no objection in the trial court to the sentence, either at the sentence hearing or by sentence review request. Thus, the issue was not preserved for appellate review. Henderson v. State, 218 Ga.App. 311, 312-313(3), 460 S.E.2d 876 (1995); compare Peterson v. State, 212 Ga.App. 147, 149(1), 441 S.E.2d 481 (1994). This Court does not address constitutional issues not raised below. Ogletree v. State, 211 Ga.App. 845, 846(1), 440 S.E.2d 732 (1994).
This is not a case of "exceptional circumstances," where the Court will excuse the failure and take notice of error sua sponte, as was Taylor v. State, 186 Ga.App. 113, 114-115(3), 366 S.E.2d 422 (1988). While it may be that the length of the banishment here makes the case "exceptional," there is no error such as fits either of the categories identified in Taylor.
Presha has the burden to show the probation condition is unreasonable. State v. Collett, 232 Ga. 668, 670-671, 208 S.E.2d 472 (1974). He does not contend that banishment itself is unreasonable but that it is excessive in length. We affirmed a banishment of ten years, with no discussion about length, in Edwards v. State, 173 Ga.App. 589, 590-591(1), 327 S.E.2d 559 (1985). Presha's probation condition was imposed on a sentence of lawful duration, Boyd v. State, 204 Ga.App. 729, 730, 420 S.E.2d 389 (1992), and is of recognized utility. Wyche v. State, 197 Ga.App. 148, 149(2), 397 S.E.2d 738 (1990). As the State points out, Presha could have been banished to prison for the entire 60 *295 years. In fact, it appears that if he had objected to the condition at the hearing, the court would not have abused its discretion if it had sentenced him to 60 years to serve. Garland v. State, 160 Ga.App. 97, 99(4), 286 S.E.2d 330 (1981).
Judgment affirmed.
POPE, P.J., and RUFFIN, J., concur.
