*1 fiduciary duty Rather, the being imposed year Stewart in 1995. the question executor, concerns proper Stewart’s current role as this reveal, time, whether that role at requires that which is considered, at least for purposes judgment, for of motion summary concerning the “truth” be 1995 transfer. And the Court of that Appeals properly recognized an executor who refused to reveal so the truth in concerning such transfer would be breach of his duty.
An executor by generally is bound the “rules applicable to act in fiduciaries the best interests of all who persons are interested estate regard respective and with due for their rights.” OCGA (a). position an executor in a Clearly, who is to return estate that which intended was as an advancement and does not do duty so is in violation of imposed by (a). majority ignores duty, rather require this that to executor stating the truth concerning “unduly penal- reveal an earlier transaction izes” the executor. But the only “penalty” enforcing original transfer, either through admission, executor’s finding own or the of a jury concerning Further, the facts of that transfer. to the contrary statement, under the holding Appeals, Court of is in way executor no “foreclosed” refusing to claim advancement; so, is an may certainly transfer he do facts of and the his a jury. claim tested
I am authorized state that Thompson joins Justice this dissent. September 13,
Decided Johnson, T. Eric appellant. for Jr., Varner, Adams, S. G. E.
Edwin Bo appellee. THE
S04G0742. STATE v. STINSON. 654)
HINES, Justice. Stinson granted This Court certiorari to consider the Court of (2003), whether that, case, holding erred under the circumstances of the Stinson his right guilty plea. retained For the reasons which follow, we find Appeals mistakenly the Court of concluded that the 1998 Revised Probate Code in this situation. See 53-1-1. OCGA ability to withdraw as a matter retained Stinson plea, therefore, reverse. we opinion the Court of are set forth facts
The relevant charged Timothy was Appeals.On 1998, 1, December unlawfully pos- Georgia Act violating Substances Controlled pled to the 1998, sessing December Xanex. On *2 Drug signed con- charged Court Contract. offense, a part: provided relevant tract permitted Timothy been that I have understand
I, Stinson[,] Program, Drug I must participate and that Court to fully comply counseling and other recommendations with the entered that I have understand forth. I also orders set obey charges plea the terms if I fail these Drug Court from contract, be terminated I shall of this the court. the discretion within and sentenced missing by treat- rehabilitation the contract violated Stinson his arrest on issued for was sessions, a bench warrant ment after the arrested, but then released Stinson was March comply with rehabilitation him to continue trial court ordered again Drug violated After Stinson Contract. Court the terms of timely appear failing by court, court issued the trial the contract August “pick-up 20, 2002. on order” for Stinson January hearing 16, 2003 to determine held a The trial court Program. Court be terminated Stinson should whether hearing, as to withdraw filed a motion At the yet right the trial been sentenced he had not matter of because plea, the motion to withdraw trial court denied court. The Program, and sentenced Stinson from terminated probation. years to be served him to five judg Appeals appealed, reversed and the Court of Relying stating to do so. court, it felt constrained ment ofthe trial App. Thompson 444, 445 State, v. 218 Ga. on its earlier decision App. (196 quoting 404) (1995), State, 407 128 Ga. v.Ware SE2d 896) (1973), cannot that an accused held the Court of right because before to withdraw waive the (b).1 statutory The Court § 17-7-93 of OCGA mandate (b) provides: immediately on the minutes person pleads “guilty,” recorded shall If the clerk, arraignment; together and the court shall of the court manner as if he had judgment in the same pronounce the law jury. At time before the verdict of a of the offense been convicted Appeals acknowledged Davenport State, its decision in v. 644) (1975), provisions OCGA 17- apply pleas resulting 7-93 did not in treatment as a first purpose offender because to do so would frustrate the of the First 2seq. Offender Act. See However, OCGA 42-8-60 et the Court concluded that similar treatment could not be accorded this case because Stinson was never sentenced. Appeals’ reasoning is flawed and its conclusion Davenport
unwarranted.
In
the defendant had received
probation
charged
as a first offender and after he was
with and
hearing
question
arrested for
crime,
another
there was a
on the
probation.
revocation of his
Id. at 913. At the conclusion of the
hearing,
the trial court announced that it had revoked
prior charge
that it had rendered a
on the
“going
Act,
the First Offender
and that it was
to follow the sentence
given,
years.”
two
Id. at 913-914. Then defense counsel announced
guilty plea,
wanted to withdraw his
but the trial court
Appeals rejected Davenport’s
overruled the motion. The Court of
contention that he had the
“until the
guilt,”
writing
had been reduced to
and filed with the
*3
Germany,
(1) (271
clerk of court. See State v.
2 provides: OCGA 42-8-60 § (a) Upon contendere, a verdict or of or a of nolo but before an adjudication guilt, of previously the case of a defendant who has not been felony, may, convicted of entering guilt a the court without a of and with the consent of the defendant: (1) proceeding place Defer probation further and the defendant on provided law; or (2) provided by Sentence the defendant to a term of confinement as law. (b) Upon probation, upon violation the of defendant the terms of during period probation, conviction for upon another crime or the court determining eligible that the defendant is or was not under this article, may adjudication guilt the court proceed enter an and as otherwise provided by person may law. No avail himself of this article on more than one occasion. (c) provisions The court shall not sentence a defendant under the of this and, provisions article, article if sentenced under discharge of this shall not upon completion defendant of the sentence unless the court has reviewed the Georgia defendant’s criminal record as such is on file with the Crime Information Center. the benefit of first enacted for constitute an abuse the statute permit passage of and them, after the months offenders, thus gone dispersed, years, dead, or or even after witnesses are even demand a at 914. trial.” to withdraw a applied OCGA§ 16-13-2 rationale this case. The same must (a),3 treatment like that afforded Stin- alternative which authorizes similarly gives son, § 42-8-60, the trial court discretion to OCGA proceedings, guilt, defer further to withhold an gives (a) place probation. OCGA 16-13-2 the defendant pleads guilty is found of a violation defendant who to or comprehen- option, undergoing assent, of the trial court’s program. provisions, As in the first sive rehabilitation offender (a), treatment offered under OCGA 16-13-2 confers alternative upon defendant, the defendant. It allows substantial benefits probation, upon his to be fulfillment of terms and conditions of proceedings discharged by have the trial court and to the criminal against him dismissed. urges he that the record does not show that was ever (a), any therefore,
sentenced under OCGA 16-13-2 (a) limitation of OCGA 16-13-2 withdrawal of opinion apply But, to him. while the record and the of the would not expressly Court of is silent on whether trial court relied (a) punishment offering alternative to beyond dispute Stinson, it Court Contract executed provided avoiding adjudi- clear an with the guilt upon cation of Program. successful provides: (a) any person previously any offense Whenever who has not been convicted of any chapter 3 of this or of statute United States or Article or Article stimulant, relating drugs, marijuana, depressant, or or state genic drugs, pleads guilty to narcotic hallucino- possession drug, narcotic or is found of a stimulant, depressant, hallucinogenic marijuana, drug, the court or or without guilt entering defer and with the consent of such further *4 place upon proceedings and him on such reasonable terms and conditions require, preferably require person may undergo as terms which the court including, treatment, comprehensive program, necessary, if medical rehabilitation years, designed acquaint not effects of to exceed three with the ill abuse provide knowledge gains and can be and to him with benefits which achieved condition, society. Upon being good of member of violation a term or court may adjudication proceed Upon guilt accordingly. an of fulfillment of the enter conditions, discharge proceed- dismiss the terms and ings court shall Discharge against under this him. and dismissal Code section shall without guilt purposes adjudication not be deemed a this and shall conviction imposed by purposes disqualifications or law Code section or for disabilities Discharge under conviction of a crime. and dismissal this Code section occur only respect any person. once with pleading guilty drug charge, gave
After to the the trial court Drug one, two, not but chances to honor the terms ofhis Court only Contract. so, Stinson failed to do and it was on the brink of his Drug Program years termination from the Court and more than four sought after he entered his that Stinson to withdraw the plea. precisely Appeals This is the sort of situation that the Court of found “untenable” in terms of the First Offender Act. To hold that unqualified right Stinson retained the under OCGA 17-7-93 complete withdraw his would indeed be a abuse of the rehabilitative alternative of Court Pro- gram. permit participants It passage years, would such after the prosecution pragmatically case, impossible, this and after is withdraw a and demand a trial. plain
It is on the case, facts of this that Stinson’s termination Program from the imminent were sought plea. Appeals’ when he focus on yet the fact against that a formal sentence had not been entered misplaced. Stinson was State, See Johanson v. 260 Ga. 564) (2003). pled SE2d A defendant Stinson, like who has utilized the benefits of a rehabilitative in order to avoid an guilt, may not withdraw the as a matter of (b).Accordingly, OCGA 17-7-93 of the Court of Appeals is reversed.4
Judgment except concur, reversed. All the Hunstein, J., Justices who dissents.
HUNSTEIN, Justice,
dissenting.
Appeals correctly
I believe that the Court ruled that the trial
comply
(b). Accordingly,
court did not
OCGA 17-7-93
I dissent
Appeals’ judgment.
to the
reversal of the Court of
undisputed
(b) provides
It is
in relevant
part
person may
plead
that an accused
withdraw a
any
pronounced.”
not
(Emphasis
“[a]t
time before
supplied.) The trial court in Stinson’s case never entered a sentence
any
pronouncement
kind,
not even an oral
of sentence. See Cole-
(1) (343
695) (1986);
Germany,
State,
man v.
77Ga.
State v.
851) (1980).
agree
(b). doing exclusively upon Davenport In so it relies
4 Any regarding issue raised credit for his time served is not before this Court. *5 holding 644) authority (1975), its for correctly could withdraw his ruled that Stinson not trial court plea misplaced. right. reliance, however, is as matter of That did not involve the withdrawal of a supports (b) nothing therein § holding language yield mandatory must the statute that majority drug rehabilitative intent of focuses court cases. program drug in OCGA 16-13-2 and Stinson’s the flagrant embodied court participant program should to conclude that a abuse pre-sentence guilty as a be matter not allowed to withdraw regrettable participants right. agree I that it is that some While advantage program may elect to ofthe rehabilitative take potential or them, I do find that for actual afforded to not plain ignore existence of abuse authorizes this language (b). unambiguous fly 17-7-93 That Stinson’s actions (a) tenets 16-13-2 is the face of rehabilitative of OCGA Assembly question. However, had the General desired to without qualify the freedom to withdraw a after unsuccessful provided. drug program, it It is in a court could have so Assembly, this Court to determine whether for not General program participants exempted 17- should OCGA (b) participants 7-93 the courts become inundated with choos- should (a) ing sentencing option failing forgo the OCGA 16-13-2 complete the rehabilitative alternative. statutory language plain unambiguous,
Where we cannot inapplicable rely superfluous dicta in an case to rewrite statute obligated apply. Accordingly, are OCGA we inasmuch as provides unqualified until withdraw pronouncement judgment by court, the trial I dissent. September
Decided Stephen Kelley, Attorney, DeVooght,Jacque- D. K District Leslie Attorneys, lyn appellant. Johnson, L. Assistant District for appellee. Crowe, Robert L. IN THE OF T. STECKLER.
S04Y1021. MATTER DAVID Per curiam. pursuant disciplinary is before the Court This matter Discipline alleging Respondent Bar Notice of filed the State