Whitehead v. State

Mar 17, 1993

A92A1938

Reporters:: , ,
Before:: Andrews

Andrews, Judge.

Whitеhead entered a guilty plea to one count each of armed robjery аnd aggravated assault. He appeals from the sentence entered on hat plea on four grounds.

Whitehead and his co-defendant Holmes were arrested within mе hour of the robbery and assault of Mr. and Mrs. Wicks while they vere staying at a local motel. Whitehead grabbed Mrs. Wicks and shoved her back into the motel room when she camе out to get a book from the car. Holmes was brandishing a sawed-off shotgun and minted it at Mr. Wicks’ head as he relieved him of several $50 bills md traveler’s checks.

The Wicks notified the local police who spotted the two men in a car at another motel. When approached, a sawed-off shotgun was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍found in the car, a $50 bill was taken from each man’s pocket, and the Wicks’ room key was found lying on the seat of the cаr.

Whitehead made a statement to the officers that Holmes had the gun and took the money from the victims. Both defendants were identified by Mr. Wicks at the police station within an hour of the robbery.

Represented at trial by his appellate counsel, Whitehеad entered his plea of guilty on March 2, 1992. The hearing on both defendants’ motions, including Whitehead’s motion to suppress evidence and statements, was held on February 21, 1992.

1. During the Fеbruary hearing, the court orally denied the motions to suppress the physical evidеnce and statements made by the defendants and reserving ruling ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the motions regarding the showup. Holmes had filed a motion to sever the two defendants and the State agreеd to that severance due to problems under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

The second enumeration allеges error in the granting of the motion to sever. The third enumeration alleges error in failing to enter a written order on the motion to sever.

No reservation of the right to аppeal any of these rulings was made prior to entry of the guilty plea. “Although this court considers errors asserted after trial courts have permitted defendants to сondition their guilty pleas on reserving the opportunity to appeal adversе rulings made prior to the plea [cit.], the general rule is that errors are not prеserved because a guilty plea waives all defenses and objections, known аnd unknown. [Cits.] A valid guilty plea is treated as a confession of guilt and waives all defenses knоwn and unknown.” Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991).

2. The first and fourth enumerations address claimed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍errors in the sentence imposed and will be addressed.

*892 Decided March 17, 1993. James G. Tunison, Jr., for appellant. H. Lamar Cole, District Attorney, J. David Miller, A. Scott Gunn, Assistant District Attorneys, for appellee.

During the sentencing hearing, the court orally announced th< sentence which included his direction that, upon being released fron custody on his 14 years to serve, Whitehead leavе the Southern Judi cial Circuit and “not return at any time during the course of the tw( sentences.” Whеn the written sentence was entered, it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reflected four teen years to serve with the remaining six years of the twenty-yea: sentence to be “probated upon the fоllowing express conditions . . (16) [l]eave the area of the Southern Judicial Circuit . . . and dо no1 return into said area at anytime.”

While no objection was made to this condition during the hearing or prior to appeal, it is now contended that banishment “forever” was an abuse of discretion. It is not necessary, however, to read the sentenсe that way. The language used is on all fours with that approved in Wyche v. State, 197 Ga. App. 148 (1) (397 SE2d 738) (1990). As stated there, “[i]nasmuсh as the banishment is a condition of probation, it is obvious that the banishment is to be in effеct only during defendant’s probation. [Cit.]” Id. See also State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974); Parrish v. State, 182 Ga. App. 247, 248 (2) (355 SE2d 682) (1987).

Another condition of probatiоn was that Whitehead “[p]ay ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a fine of $3,500, plus all required surcharges, as and when directed by Probation Officer.” (Emphasis supрlied.) Here, although no objection was voiced below, Whitehead contends that imposition of a fine without having a hearing on his indigency violates OCGA § 42-8-34. Subsection (e) of thаt statute provides that “[t]he court may, in its discretion, require the payment of a fine оr costs, or both, as a condition precedent to probation.” Since payment of the fine was not a condition precedent to the entry upon probation, there is no violation of that statute. Reid v. State, 204 Ga. App. 358, 362 (4) (419 SE2d 321) (1992).

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.