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May 26 16

American Bar Association Continuing Legal Education Webinar Notes: Issues in Drunk Driving (Pretrial Sobriety Programs)

by merlin

American Bar Association Webinar Notes –

Issues in Drunk Driving: Pretrial Sobriety Programs

Thursday, May 26, 2016

Moderator:           Hon. Earl G. Penrod (IN)

Panelists:   Hon. John S. Kennedy

                       Hon. Lawrence E. Long

 

Hon. Lawrence Long (SD)

  • “South Dakota 24/7 Sobriety Project”
    • Drugs and alcohol felonies 1999-2012: 61.8% of all felonies
    • To implement the program, they imposed the no-consumption bond condition on anyone arrested where alcohol involved, and at least one alcohol-related conviction in past 10 years.
    • Condition: stay out of anyplace where alcohol can be purchased and consumed on premises
    • Breath test at 7 AM and 7 PM; skip or fail and go to jail immediately (24 hrs in jail and then released)
    • 2/1/05 – 1/1/16: tested in SD 39K+ participants (over 8 million tests): passing rate is 99.1%
      • Started using the SCRAMbracelet (a bracelet worn on leg that tests sweat for alcohol almost hourly; info is transmitted electronically)
      • Intoxalock – ignition interlock; uses GPS, notifies law enforcement, and is real-time; incorporates small camera in vehicle to verify who starts and operates car
    • Urinalysis used also to test for other substances used instead of alcohol; gave police authority to pull random people and suspects out of line to test
    • They use a drug/sweat patch, also (since 2005) – avoids problem of somebody else’s urine (this is for rural offices in which not enough personnel to supervise urine sample) – passing rate is 79.9%

Case Law:

St. v. Lemler, 774 NW2d 272, (S.D. 2009) – SCRAM Bracelet meets (DAUBERT) standard for presence of alcohol (not blood level amount, but PRESENCE) • St. v. Spady, 2015 MT 218, 354 P3rd 590 (2015) – Montana’s 24/7 Program survives facial 4th Amendment Constitutional Challenge • U.S. v. Redd, 318 f3d 778 (8th Cir. 2003) – “Sweat Patch” results are “reliable” in probation revocation hearing. – U.S. v. Drager, 2013 WL 139364 (2013)(same) – U.S. v. Rojos, 577 fed. Appx. 33 (2nd Cir. 2014)(same)

  • 2007 statutory changes: DOC uses 24/7 program as a condition to be imposed in probation instead of revocation; 24/7 made a condition for return of minor children, and 24/7 successful participation is a mandate for WORK PERMIT
  • This program (a factor) has NOTICABLY dropped the number of fatalities (alcohol-involved crashes) on the highway since the program went into effect
  • South Dakota: Cost almost nothing in tax dollars (offenders have to partially defray cost of program, though); they DO NOT have an indigency program, though (these bracelets cost about $1,400 apiece, plus daily monitoring cost, but they still only charge $5/day).

Hon. John S. Kennedy (PA)

Arrests by police in 2007 – about 3 mos. before blood test results came back and charge could be filed (case that started interest involved a person with 3 DUIs before charges could even be filed in the first one).

  • Discovered that about 25% of all criminal cases were DUIs, and about 25% of all DUIs were repeat offenders.
  • Noticed that about 25% of DUIs would get a new DUI before they could get to court on the first one

Developed protocol for DUIs:

  • Have PD run criminal records check upon DUI arrest (is he/she a repeat offender?)
  • Victim/Witness advocates check for injuries/other parties, get release forms, etc.
  • DUI Court eligibility?
  • Place all arrestees on pretrial supervision
  • Executive ADA places DUI treatment Court recommendation in file for eligible cases
  • Tier 1 offenders (under .1): Changed sentence from 5 days mandatory jail time to 15 days alcohol monitoring and 5 days house arrest
  • Tier 2 (.1 – .159): before 30 days – 6 months jail; now 60 days alcohol monitoring and 30 days house arrest
  • Basically, changed from percentage-based to general impairment-based charge filed that night, and cut return of BAC down significantly so they can file percentage-based charges subsequently

Forced sobriety = sobriety, nonetheless (drop from 15-20% of DUI victims served by DA’s Office to 6-8% (2011- 2015).

Pennsylania: Privately paid for, and costs $12/day for monitoring (no indigency).

MADD and other advocacy groups: pushing for use of interlock devices over the abstinence program (might be there for other reasons than drunk driving, but are there for an alcohol problem).  However, the Courts that operate these programs try to get along with them.

 

May 24 16

A Reminder: Sex Offenders Cannot File Consecutive Petitions for Removal After Denial on the Merits

by merlin

I filed a case for removal from the Georgia Sex Offender Registry in the incorrect county.  This was done under an honest misimpression as to what the law held, but I was uncertain about the correctness of that particular action and, when confronted with the incorrectness, did not challenge it.  I had been given enough time to file the motions and briefs I felt were necessary, without being wrongly herded in a particular legal direction that I felt was improper, so I chose to transfer the case rather than dismissing it to refile.

This is, of course, the only action that should be taken when it comes to a petition for removal from the Sex Offender Registry, because subsection (b)(3) of the removal statute itself (Section 42-1-19) holds that “[i]f a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.”  Of course, voluntary dismissal would not be a ruling on the merits, and legally a new petition could be filed, but it might be challenged improperly.  Choose your battles!

This issue has been adjudicated recently, in Hawkins v. State, 330 Ga.App. 541 (Ga. Ct. App. 2015).  In fact, voluntary dismissal by the petitioner was not an adjudication on the merits, but the long delay in the process, the tremendous expense for persons who probably do not have enough money to go around, and the excessive legal battles involved hardly seem worth it.  The case follows:

“Jess Brandel Johnson, Page Anthony Pate, Atlanta, for Appellant.

Paul L. Howard Jr., David K. Getachew–Smith, for Appellee.

DOYLE, Presiding Judge.

         Following the grant of his discretionary application, William Hawkins appeals from the trial court’s order denying his petition for removal from sex offender registration requirements. For the reasons set forth below, we vacate the trial court’s order and remand the case.

        The record shows that in September 1991, when Hawkins was 16 years old, he entered a nolo contendere plea to attempted sexual battery in Florida and was sentenced to two years of “community control” followed by ten years of probation. In October 2013, Hawkins filed a petition for removal from sex offender registration requirements. The trial court dismissed the petition for failure to file a civil initiation form pursuant to OCGA § 9–11–13(b), 1 and on December 31, 2013, it denied Hawkins’s subsequent motion to set aside the dismissal order.2

        On January 7, 2014, Hawkins filed a second petition for removal from sex offender registration requirements, with accompanying supporting exhibits. Without addressing the merits of the case, the trial court dismissed the petition pursuant to OCGA § 42–1–19(b)(3), which provides that “[i]f a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.” Hawkins filed an application for discretionary appeal of this order, and we granted the application.

        On appeal, we apply a clearly erroneous standard to the trial court’s factual findings, and a de novo standard to its rulings on questions of law.3

        Hawkins argues that OCGA § 42–1–19(b)(3) does not apply in this case, and we agree. OCGA § 42–1–19(b)(3) bars a person on the sex offender registry from filing a second petition for release from registration requirements within two years from a final order on a previous petition, if the first petition for relief was denied.Hawkins’s first petition was not denied. Instead, the trial court apparently treated the disposition of that first petition as a voluntary dismissal or, alternatively, a dismissal for failure to prosecute, neither of which operated as an adjudication on the merits of the first petition.4 Denial and dismissal are distinct dispositions, and there is nothing in the text of OCGA § 42–1–19(b)(3) remotely suggesting that the bar contained in the statute applies to cases in which the first petition was voluntarily dismissed or dismissed without prejudice for failure to prosecute, as opposed to cases in which the first petition was denied on the merits. Thus, the trial court erred by dismissing Hawkins’s second petition for release from sex offender registration requirements, and we vacate the trial court’s order and remand the case for adjudication on the merits.5

        Judgment vacated and case remanded.

MILLER and DILLARD, JJ., concur.

——–

Notes:

        1. OCGA § 9–11–3(b) provides: “At the time of filing the complaint for a civil action in superior court or state court, the plaintiff shall file the appropriate civil case filing form with the clerk of the court. The form shall contain complete information and shall be substantially in the form prescribed in Code Section 9–11–133. The filing of the complaint shall not be delayed for the filing of the case filing form. If, after a civil action has been filed, the court presiding over the civil action decides that the civil case filing form has not been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil case filing form or an amended form. In no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action.” (emphasis supplied).

        2. Neither the dismissal order nor Hawkins’s motion to set aside the dismissal are contained in the appellate record. In the order denying Hawkins’s motion to set aside the dismissal, however, the trial court noted that: (1) on October 28, 2013, the clerk of court entered a notice of non-compliance advising Hawkins that he failed to file a case initiation form; (2) on November 13, 2013, the trial court entered a notice of requirement to file the form or explain his noncompliance, advising Hawkins that failure to do so would be considered an election to have the petition dismissed without prejudice; (3) on December 13, 2013, the trial court entered a final order dismissing the case; and (4) on December 19, 2013, Hawkins filed a case initiation form and a motion to set aside the dismissal, stating that he complied with OCGA § 9–11–3(b) and the court’s order and suggesting that the clerk of court lost the form. The trial court denied the motion to set aside the dismissal, concluding that Hawkins “failed to meet his burden of persuasion with respect to the statutory bases [under OCGA § 9–11–60(d) ] for setting aside the default judgment [sic]. In this regard, nothing in the record, save [Hawkins’s] self-serving motion, suggests [he] complied … or attempted to comply … with OCGA § 9–11–3(b) … prior to the entry of the [f]inal [dismissal o]rder. Rather, … the record clearly indicates that … only after the [f]inal [o]rder was entered, [Hawkins] complied with OCGA § 9–11–3(b).”

        3. See In re Baucom, 297 Ga.App. 661, 678 S.E.2d 118 (2009).

        4. See OCGA § 9–11–41(a)(3) & (b).

        5. The State implicitly concedes the trial court’s error, requesting that “[i]n light of the fact that [Hawkins’s] initial case was dismissed rather than denied, [this Court] … remand this case … for an order based on the merits rather than any procedural non-compliance.””

Something else about that case stands out, by the way; hint – take a look at what form the party had to file to initiate the case.  Specifically, OCGA § 9–11–3.

May 17 16

American Bar Association Webinar Notes – “Ferguson’s Fault Lines: The Race Quake That Rockedthe Nation”

by merlin

American Bar Association Continuing Legal Education Webinar Notes

Ferguson’s Fault Lines: The Race Quake That Rocked the Nation

 

Speakers:

Katherine Goldwasser (Prosecution, Grand Jury, and decision not to charge)

Thomas Harvey (It’s Not Just Ferguson)

Brendan Roediger (Municipal Courts and Road to Reform)

Kimberly Norwood (from Brown v. Board of Eduation to Michael Brown)

Howard Wasserman (uncertain hope of body cameras)

Goldwasser (Washington University School of Law – Professor, Retired; Former Federal Prosecutor)

Prosecution, Grand Jury, and decision not to charge

  • Timeline given of events (from shooting by Darren Wilson, shot-by-shot, to decision by Ferguson PD to let St. Louis County PD handle case, to evidence presented by DAs Office to Grand Jury [all witnesses were associated with law enforcement, and none of them except Darren Wilson were there for the shooting])
  • How were THESE Grand Jury proceedings different from usual Grand Jury proceedings?
    • bare bones proceedings
    • takes 24 hours or less (this was over 72 hours, over the course of weeks)
    • No opening statement is given usually (this one involved an opening statement of how case was different at the outset)
    • Prosecution did no culling of evidence, and presented long-since unconstitutional law or what possible charges could be brought in the case
    • Strong anti-Indictment bias in case

Wilson’s testimony was given; his account was very different from the one he gave right after the shooting and was not challenged by the prosecution.

THE GRAND JURY IGNORED RACE ENTIRELY.

Harvey (executive director, ARC City Defenders – provide representation to homeless persons)

It’s Not Just Ferguson

In 2013, Ferguson Court issued 32,000+ arrest warrants, mostly for failure to pay fines.

The problem of arrest warrants for failure to pay is pervasive.

700,000 active warrants for arrest for reasons stemming from poverty and race.

Roediger (Professor, St. Louis University School of Law)

Municipal Courts and Road to Reform

Judges are generally practicing attorneys in family law, defense, etc.; often prosecutors in one court and judge in another

  • Officers are being told by mayors that they need to make more arrests to make more money (not enforce the law but rather get money)
  • Majority of police stops in St. Louis County don’t have probable cause

It’s not about abolishing law enforcement, but rather about enforcing DUE PROCESS (because otherwise, profession is a JOKE)

Norwood (Washington University law professor)

From Brown to Brown

From 1865 until 1954 (Brown v. Board of Education) – illegal to educate formerly-enslaved blacks except in limited fashion

  • Schools often didn’t have books, structural flaws in buildings, etc.
  • Brown said separate but equal was inherently flawed, and struck it down
  • In 1970s, Rodriguez, found no federal right to education; created downward trajectory
  • Supreme Court severely limited use of race to desegregate schools; created the kind of problem in Ferguson
  • Michael Brown went to public schools in Normandy, MO, but white flight had taken resources, etc., from the school district (it was not accredited for any of the years he went to school there)
  • District not declared “unaccredited” until Brown was a junior, which provides remedies; it qualified as unaccredited (should have been already declared) before he was born.

Staying in one school meant inadequate environment in every way, but transfer meant about a two-hour per day bus ride (and an incredibly hostile environment in the new school) – ACEs (Adverse Childhood Experiences) prevalent in home environment PLUS school environment

Need to focus on new hires/diversity, re-hires/further training, ending “zero tolerance” policies

Wasserman (Professor – Florida International University College of Law)

Uncertain Hope of Body Cameras

Everyone (different races and political orientations) seem to think body cameras and dashboard cameras are a good idea

  • Only group not on board really is police unions and rank-and-file officers
  1. Good for objective depiction of encounter
  2. Good for deterrence
  3. Good for appropriate resolution of disputes

It is more complicated and uncertain than the rhetoric makes it; see study from 2013 by Reedy and Young (50 officers; led to significantly fewer incidents stop-and-frisks, etc.)

Limits on video evidence:

  • Video does not necessarily speak for itself;
  • What video depicts depends on audience (what they see is based in large part on preexisting prejudices);

Nonetheless, video evidence appears to spur settlement of disputes in favor of wrongful victims.

Pending suits to challenge Constitutionality of existing municipal court system:

  • Equal Protection argument; if the money was there, they would not be locked up (so it is EVIL and wrong that the jail exists to lock up people for the sole act of owing money)

Apart from body cameras and municipal court reform, other acts that reform:

  • Problem of too many police for the town size
  • Police officers do not get properly certified (police academy, etc.)
  • Policing is more oriented toward revenue collection and not toward crime reduction

What about idea that Brown committed a crime beforehand that eliminated any possible profiling, etc.?

  • Darren Wilson certainly at some point said to Grand Jury that he saw the two guys who had committed a strong-arm robbery earlier; THIS IS NOT WHAT HE TOLD HIS SUPERVISORS IMMEDIATELY AFTER THE SHOOTING!!!!
  • Proper question: was use of deadly force warranted under circumstances of encounter?
May 15 16

The Title of a Pleading Is Less Important Than the Substance of a Pleading

by merlin

Sometimes, I am talked down to by opposing counsel or by people in authority because a point that I raise seems unorthodox, and I have surprised them by making an argument that they do not feel has any merit.  I am left astonished by their surprise about my argument, because I actually carefully wrote a fairly thorough brief addressing the point to avoid any surprise.  It is far too easy to get into the habit of reading the title of a pleading and assuming that it is valid or invalid without considering its substance, and the law in Georgia is designed to avoid this.  In fact, a case decided in 1973 by the Court of Appeals indirectly addressed this very issue.  It was concerned with the idea of jurisdiction versus venue, but the analogy is easy to make, and it touches directly on whether the substance of a pleading or merely its title matters more (hint: it’s the former).  In other words, to avoid being surprised by a statement or an argument made in Court, read the arguments made in a pleading and a brief, because they often set out the argument plainly.  The following case was decided under the old Code, but it is still valid on this point of law.  It is Holloway v. Frey, 130 Ga.App. 224, 202 S.E.2d 845 (Ga. Ct. App. 1973):

        Long & Pierce, Nick Long, Jr., Atlanta, for appellant.

        McCurdy, Candler & Harris, George H. Carley, Decatur, for appellee.

Syllabus Opinion by the Court

        DEEN, Judge.

  1. ‘The judge of a court having (no) jurisdiction of the person . . . is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.’ Code § 110-709. ‘To bind a party by the judgment, . . . it must appear that he has been served with process directed to him, or else that he has, by some express or implied waiver, dispensed with the necessity of process.’ Frank Adam Electric Co. v. Witman, 16 Ga.App. 574(2), 85 S.E. 819. ‘A judgment against a party where there has been no valid service upon him, and no waiver of service, is void.’ Foster v. Foster, 207 Ga. 519(3), 63 S.E.2d 318.

        In the present case filed in the Superior Court of DeKalb County the plaintiff Frey sued on Farmer, an alleged resident of Cobb County, and the appellant Holloway, allegedly residing at 3409 Regalwoods Dr., DeKalb County, seeking judgment of more than $15,000. A return of service dated August 17, 1970 signed by a deputy sheriff states: ‘I have this day served the defendant Jack B. Hollaway by serving daughter Jackie by leaving a copy of the within writ and process at his most notorious place of abode in this courty.’ The return fails to specify where this was done. During the periods of time in question Holloway did not live at Regalwoods Drive, the address shown in the petition. His minor daughter Jackie lived with her mother, on Valley Bluff Drive, the parents being separated, and it was here that the deputy sheriff delivered the suit papers, although the defendant had never lived at the address and the daughter gave an affidavit that she had so informed the officer. Holloway in fact lived at an address on Buford Highway, also in DeKalb County, and worked at an address in Cobb County. The attorney for the plaintiff, learning of the manner in which service had been attempted, thereafter sent an office employee to Cobb County who personally delivered a copy of the action to the defendant, but who had no authorization from any source to serve suit papers.

        It follows that the Superior Court of DeKalb County had no jurisdiction of the person of the defendant Holloway which would authorize the taking of a default judgment against him. The service was not made either by personal delivery to the defendant by a person authorized to serve suit papers under Code Ann. § 81A-104(c) or ‘by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein’ or delivering it to an agent, as required by Code Ann. § 81A-104(d, 7). The service was thus completely nugatory. Boyer v. King, 129 Ga.App. 690, 200 S.E.2d 906.

  1. A default judgment was entered against Holloway on November 9, 1971. Immediately on being apprised of its existence, he procured counsel who filed a motion attempting to have it vacated. The court hearing this issue held that the default judgment was valid because (a) the motion was not based on a ‘nonamendable defect appearing on the face of the record’ and (b) the defendant had actual notice (through the unofficial delivery of copy papers to him in Cobb County by an employee of the plaintiff’s attorney) that a suit had been filed, and his failure to take action thereon prior to judgment amounted to a waiver of his rights.

        Dealing with these legal conclusions in reverse order, we find the second one unacceptable because it requires a party to litigation to make a defense although he has not been served in the case. If this were the law, of course, there would be no such thing as service of process, but all that would be necessary to obtain judgment and levy on a man’s property and possessions would be to inform him by whatsoever means that there was in fact a suit pending against him, and throw the burden on him of checking out the rumor, a situation that would indeed lead to the nightmare situations envisioned by Kafka in The Trial.

        The other objection stated by the trial judge for not vacating the judgment is that the defect does not appear on the face of the record. The return of service is in fact defective in that it does not show the place of service and does not state that the service was ‘at the defendant’s dwelling-house or usual place of abode’ as required by Code Ann. § 81A-104(d, 7). If we are correct in holding there was no jurisdiction over the person of this defendant in the absence of service of process at a place where the defendant had lived, or by a person authorized to serve him, then it follows that the judgment is void and for this reason the restrictions on the use of motions to set aside set out in Code Ann. § 81A-160(d) on motions to set aside and applied in Aiken v. Bynum, 128 Ga.App. 212, 196 S.E.2d 180, cannot apply here. If lack of jurisdiction of the person could not be raised after judgment even though it rendered the judgment void, and even though a defendant was without knowledge of the filing, courts would be faced with an impossible situation. Further, Code Ann. § 81A-160(f) provides: ‘A judgment void because of lack of jurisdiction of the person . . . may be attacked at any time.’ As stated in DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625 (4), 193 S.E.2d 852, Code Ann. § 81A-104 ‘provides explicit rules for service of process. In the absence of service in conformity with such rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void.’

        It is contended that this case must be affirmed under the authority of Aiken, supra. In that case the service was actually made at the house at which the defendant resided by leaving a copy of the suit with a relative who was present. The difficulty in Aiken is that, as frequently happens where a part of the city lies in Fulton and a part in DeKalb Counties, the actual location of the house was over the DeKalb County line into Fulton County (probably unknown to the sheriff) and therefore, as the case is careful to point out, the question was venue of the action, not jurisdiction of the person. The defendant was actually served in a proper manner at his most notorious place of abode, so far as process is concerned. If he was in fact being sued in the wrong county this was something the defendant had to do something about or else it was waived. On the other hand, in DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852, where a default judgment was entered against the defendant corporation, based on constructive service of process on the president of the corporation by leaving the papers at his residence with his wife, this was not legal service upon the corporation, and the knowledge of the president by receiving suit papers in this fashion did not constitute a waiver. As stated in headnote 2: ‘Where there has been no legal service on the defendant and no waiver of service, the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction.’ See also Reynolds v. Reynolds, 231 Ga. 178, 200 S.E.2d 766.

  1. But it is urged that such a judgment can be set aside only by a petition in equity, since under Code Ann. § 81A-160(d) a motion to set aside must be predicated upon some extrinsic defect which does not appear upon the face of the record or pleadings. It is true that this pleading has been denominated a motion to set aside. However, we have said times without number that there is no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name. Cf. Wells v. Stynchcombe, 231 Ga. 199, 200 S.E.2d 745. This pleading sets out, in the same manner as would a petition in equity, a complete statement of the facts of the case leading up to the judgment. It prays for process and that plaintiff’s counsel be served with a copy, that a day certain be set for hearing, and further prays ‘based on the strength of this verified petition, together with the supporting affidavits, and based on the urgency of matters contained herein, and based on the principles of equity and justice, . . . that this honorable court according to law and equity consider this motion and grant the defendant’s prayer’ to set aside the judgment and give the defendant his day in court. The pleading thus in fact serves every function of an original petition in equity, and it will not be dismissed simply because it is styled a motion.

        Judgment reversed.

        QUILLIAN, J., concurs.

        BELL, C.J., concurs specially.

        BELL, Chief Judge (concurring specially).

        I agree with Judge Deen that there was no jurisdiction over the person of the defendant in the trial court and for this reason the default judgment was void. Everything occurring in the proceeding thereafter was ipso facto void and nugatory. A reversal is demanded.

Apr 24 16

John Breakfield for State Court Judge

by merlin

Although this site is largely informational by design, I ran into my friend, John Breakfield, yesterday afternoon, and wanted to say something on his behalf, as he is running for State Court Judge in Hall County, Georgia.  Based on my own experiences with him, I find him to have a strong sense of fairness and an agile mind, and I think he would make a good judge.  I seldom practice in that Court, but I would be comfortable that Justice was being administered there.

BreakfieldLogo

Apr 22 16

Heavily-Redacted Form Brief in Support of Motion for Default Judgment (Georgia Sex Offender Registry Removal)

by merlin

This is heavily redacted, and I have discovered a few grammatical errors.  I believe in the basic idea, though, and I encourage other attorneys to examine this route.

___________________________________________________________

BRIEF IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT

            COMES NOW Petitioner XXXX XXXXX, by and through undersigned counsel, and makes and files this, his Brief in Support of Motion for Default Judgment as a supplement to the Motion for Default Judgment filed concurrently with this, more particularly laying out the specific reasons why he is entitled to judgment by default in the case at bar, and in support thereof states the following:

Questions Presented

  • May default judgment be granted in response to a Petition for Removal from the Georgia Sex Offender Registry?
  • Is it appropriate to grant removal from the Georgia Sex Offender Registry by default judgment to XXXX XXXXX? 

Short Answers

            There are no procedural bars provided by the statutory or case law preventing a grant of default judgment in favor of a person seeking removal from the requirements of the Georgia Sex Offender Registry (hereinafter referred to as “the Registry”), and this method is appropriate in the case of XXXX XXXXX; no defensive pleadings of any kind were made by the State of Georgia to his Petition in the case at bar, and he has met the conditions placed on his release from the Registry by the Superior Court.

Relevant Procedural History

            On XXXXX XX, 20XX, XXXX XXXXX filed and served his Petition for Removal From the Sex Offender Registry.  This petition was served pursuant to Section 42-1-19(b)(2) of the Official Code of Georgia, which reads as follows: “Such petition  shall be served on the district attorney of the jurisdiction where the petition  is filed, the sheriff of the county where the petition  is filed, and the sheriff of the county where the individual resides. Service on the district attorney and sheriff may be had by mailing a copy of the petition with a proper certificate of service.”  There have been absolutely no responsive pleadings made by any other person or entity since the date of filing and service.

Argument and Citation to Legal Authority

I.   DEFAULT JUDGMENT IS THE PROPER PROCEDURAL VEHICLE FOR THE RELIEF SOUGHT.

       “The sex offender registry requirement is regulatory and not punitive in nature. See Smith v. Doe, 538 U.S. 84, 99 (II)(B), 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Rainer v. State of Ga., 286 Ga. 675, 676, 690 S.E.2d 827 (2010) (“the [sex offender] registration requirements themselves do not constitute punishment….”).”  Wiggins v. State, 288 Ga. 169, 172 (2010).  In fact, the Sex Offender Registry itself is civil in nature.  Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).  Section 9-11-1 of the Official Code of Georgia states that “[t]his chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81.”  Section 9-11-81 does not exclude this procedural mechanism from those actions that are governed by the Civil Practice Act.  Default Judgment is a procedural mechanism embraced by Section 9-11-55 of the Official Code of Georgia, and therefore falls under the provisions of the Civil Practice Act.

       According to Section 9-11-55(a), “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default”.  That section further states that “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence…”  This statement leaves little room for interpretation.

      There are exceptions to default judgment built into the statute itself, such as a statutory time period involved, a “grace period” prior to which a default judgment may be opened for good cause, or evidence that places damages in issue.  However, “[t]he plain language of that Code section “entitles” a plaintiff to default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.”  SRM Realty Services Group, LLC v. Capital Flooring Enterprises, Inc., 274 Ga.App. 595, 604 (Ga.App. 2005).  In the case at bar, damages have never been requested or considered; Petitioner’s only request has been removal from the Registry.

II.  THE PURPOSES OF BOTH OCGA §§ 9-11-55 AND 42-1-19 ARE SERVED BY RELEASE OF PETITIONER FROM THE REGISTRY.

       Section 42-1-19(c)(2)(B) of the Official Code of Georgia requires that a person be given a Risk Assessment Classification by the Sexual Offender Registration and Review Board prior to any consideration of release from the Registry.  Section 42-1-14(a)(1) states that “The board shall determine the likelihood that a sexual offender will engage in another crime against a victim who is a minor or a dangerous sexual offense.”  OCGA Section 42-1-12(a)(12) defines a Level I Risk Assessment Classification as meaning “a low sex offense risk and low recidivism risk for future sexual offenses.”

    Section 9-11-54(c)(1) reads as follows, and it indicates that default judgment is exactly appropriate in this circumstance:

“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of the relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.”

            Default Judgment as a procedural mechanism should serve its purpose now.

Conclusion

       Though the area of law which releases from the Georgia Sex Offender Registry occupy is uncertain and fraught with obstacles and complications, it is certainly civil in nature.  Taylor, 304 Ga. App. at 883.  As such, it is susceptible to civil law methodology.  The complete lack of any response or acknowledgment of any kind by the Office of the District Attorney or the State of Georgia to the request of XXXX XXXXX for removal from the registration, employment, and residency restrictions arising from his inclusion on the Georgia Sex Offender Registry entitle him under the provisions of the Civil Practice Act to default judgment on the issue and closure of this chapter of his life.

This XXst day of XXXXX, 20XX.

Apr 21 16

Heavily-Redacted Form Motion for Default Judgment (Georgia Sex Offender Registry)

by merlin

I had an idea about the Georgia Sex Offender Registry, and today I took a step toward realizing the idea.  I simply have not seen it done blatantly elsewhere.  In many places, I see the burden of civil law cases – a preponderance of the evidence – discussed, and the cases tend to recognize that the Sex Offender Registry is a civil penalty, and not a criminal penalty.  However, it occurred to me that it should logically be subject to the civil remedy of default judgment.  Today, after considerable research into the possible impediments to that, I made and filed a motion for default judgment and a supporting brief on behalf of a qualified client.

The form for a Motion for Default Judgment which I set out below is heavily redacted, but I encourage others to pursue this line of thought.  I intend to post the redacted form supporting brief tomorrow.  I am afraid that, while redacting this to post it, I discovered so many spelling and grammatical errors in the motion I submitted today that I would rather take them in two steps.  However, the thought that underlies it is valid, as far as I can tell.   Please make good use of this!

IN THE SUPERIOR COURT OF XXXXX COUNTY

STATE OF GEORGIA

XXXXX XXXXX,                                       §

                   Petitioner,                                 §        CIVIL ACTION

            v.                                                           §        CASE NO. XXXX CV XXXX

STATE OF GEORGIA,                                §

                   Respondent.                               §

 

MOTION FOR DEFAULT JUDGMENT

 

         COMES NOW Petitioner XXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Default Judgment, again respectfully petitioning this honorable Court to release him from the registration, employment, and residency restrictions of the Georgia Sex Offender, and having waited the requisite forty-five days after service to make said motion and seeking relief as provided for by the Civil Practice Act and the Official Code of Georgia, in support thereof states the following:

1.

            The standards for granting a default judgment are laid out in Section 9-11-55(a) of the Official Code of Georgia.  According to that Code section, “[i]f in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default”.  That section further states that “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury”.

2.

            The only conditions made on said judgment by the law is a time limit standard.  An answer must be made within the time provided by law for said answer – thirty (30) days – and fifteen (15) days remain after that limit before a judgment can automatically be granted by default.   Petitioner initially filed his Petition for Removal from the Sex Offender Registry on XXXXX XX, 20XX.  54 (Fifty-Four) days have passed since the document was filed.  There has been no dispute regarding whether it was properly served and filed; in fact, there has been no defensive pleading filed by the State even acknowledging this action.

3.

            Petitioner is entitled to judgment by default under the express provisions of the Civil Practice Act, and specifically under the terms of Section 9-11-55(a) of the Official Code of Georgia, “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence”.

            WHEREFORE, Petitioner requests the following relief:

(a)     That he be found by a preponderance of the evidence to not pose a substantial risk of perpetrating any future dangerous sexual offense;

(b)       That an Order be issued removing him from registration and registry requirements from the Sex Offender Registry maintained by the State, and any equivalents thereto, including federal equivalents;

(c)       That a copy of said Order releasing Petitioner from any requirements or restrictions be given to the Sheriff of XXXXX County, Georgia, to the Department of Corrections, and to the Georgia Bureau of Investigation;

(d)     That the Court expressly rule on the Constitutionality of Petitioner’s continued inclusion on the Georgia Sex Offender Registry as a merited and proportionally appropriate condition of the guilty plea entered by him; and

(e)       For such other and further relief as the Court in its discretion deems fit to grant.

 

Apr 20 16

Default Judgments in Georgia (In General)

by merlin

The mechanism for the grant of a judgment by default in Georgia is laid out in Section 9-11-55 of the Official Code of Georgia:

(a) When case in default; opening as matter of right; judgment. If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages. An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.

(b) Opening default. At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

The procedural circumstances surrounding a judgment by default come with a few formalities, including the inclusion of what is called a Certificate of Default.  Its contents are governed in Georgia by Uniform Superior Court Rule 15.  That Court Rule reads as follows:

“The party seeking entry of a default judgment in any action shall certify to the court the following: the date and type of service effected; that proof of service was filed with the court within 5 business days of the service date, or, if not filed within 5 business days of the service date, the date on which proof of service was filed; that no defensive pleading has been filed by the defendant as shown by court records; and the defendant’s military status, if required. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.”

The importance of this Certificate is not supreme, however, and its limits have been explored in the caselaw.  Williams v. Contemporary Services Corp. et al., A13A1464, heard by the Court of Appeals of Georgia on November 13, 2013, holds generally that this Certificate of Default specified by USCR 15 is not a matter of life or death, so long as the information it contains appears on the record, and that in such a case, the failure to include it does not constitute such a nonamendable defect as would entitle a party to reopen a default judgment.  The case is as follow:

        FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and BRANCH, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.

        Branch, Judge.

        Nora Williams appeals the trial court’s decisions to set aside a default judgment and to open default in favor of Contemporary Services Corporation (“Contemporary”). For the reasons stated below, we reverse.

        The record shows that Williams filed her complaint for damages on March 3, 2010; that Williams caused Contemporary’s registered agent in Georgia to be served on March 11, 2010; that on June 3, 2010, Williams filed proof of service of process; and that as of June 30, 2010, Contemporary had failed to answer. On June 30, 2010, the trial court issued a rule nisi for a hearing to be held on August 13, 2010, and on that day the trial court held a hearing and a bench trial on damages, following which it entered a  judgment by default in the amount of $85,000 plus interest.1

        On October 20, 2010, Contemporary filed a motion to set aside the judgment and to open default, as well as a certificate of counsel, supporting affidavits, and a proposed answer. Eight months later, on June 21, 2011, the trial court granted Contemporary’s motion, set aside default judgment, and opened default. On June 27, 2011, Contemporary filed its answer and paid the costs to open default. Williams thereafter moved for reconsideration, but the court denied the motion.

        The case proceeded to a bench trial. Following opening arguments, Williams rested her case without introducing evidence. Contemporary moved for a judgment on the grounds that Williams failed to introduce any evidence and failed to prosecute the case. The trial court directed a verdict in favor of Contemporary and subsequently entered a final judgment in favor of Contemporary on August 22, 2012. Williams filed a notice of appeal from this judgment on August 30, 2012.

  1. Williams contends the trial court erred by setting aside the default judgment. “A trial court’s decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion.” (Citation omitted.)Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 566 (2) (504 SE2d 710) (1998).

        Outside of the term of court in which a judgment has been entered,2 it may be set aside only for one of three reasons:

(1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings.

OCGA § 9-11-60 (d); The Pantry v. Harris, 271 Ga. App. 346, 347 (2) (609 SE2d 692) (2005) (“the first and essential step against any final  judgment, including a default judgment, is a motion to set aside the  judgment under OCGA § 9-11-60 (d)”). In this case, the trial court set aside the default judgment on the ground that a nonamendable defect appeared on the face of the record in that “[h]aving reviewed the record, it appears that no Certificate of Default was ever filed by Plaintiff” in compliance with Uniform Superior Court Rule (“USCR”) 15.3 Williams contends this ruling was error. We agree.4

        In attempting to secure a default judgment, Williams was required by USCR 15 to “certify to the court” in writing two items of information: the date and type of service effected on Contemporary and that the court records show no defensive pleading had been filed. The rule provides that the certificate “must be attached to the proposed default judgment when presented to the judge for signature.” The plain terms of the rule show that the certificate is intended to assure the judge who has received a proposed default judgment that the defendant was in fact served and in fact failed to answer, information already available in the record.5 In fact, in the Rule Nisi issued by the trial court, the judge “noted” that service had been perfected but that no answer had been filed. Based on the apparent purpose of Rule 15 and the fact that the same information required in the Rule 15 certificate can be found in the record, we conclude that the failure to file a Rule 15 certificate is not a nonamendable defect in the record sufficient to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d).6 Cf. Hardeman, 214 Ga. App. at 485 (failure to notify trial court pursuant to USCR 4.8 that action was a renewed action was not a nonamendable defect appearing on the face of the record under OCGA § 9-11-60 (d) (3)) (physical precedent only). Compare SRM Realty Servs. Group v. Capital Flooring Enterprises, 274 Ga. App. 595, 604-605 (3) (617 SE2d 581) (2005) (holding that Rule 15 certificate at issue satisfied the requirements of that rule but not addressing whether a complete failure to file a Rule 15 certificate constitutes a nonamendable defect in the record).

        Moreover, the Civil Practice Act provides that when the defendant has not filed a timely answer, “the case shall automatically become in default ” and if the case is still in default after the expiration of the statutory period of 15 days for opening default as a matter of right, “the plaintiff at any time thereafter shall be entitled to verdict and  judgment by default, in open court or in chambers . . . unless the action is one ex delicto or involves unliquidated damages.” OCGA § 9-11-55 (a) (emphasis supplied). See, e.g., H. N. Real Estate Group v. Dixon, 298 Ga. App. 124, 126 (679 SE2d 130) (2009) (where defendant did not answer and did not move to open the default within the statutory time period, plaintiff “was entitled to verdict and  judgment it its favor”) (citation omitted); Lewis v. Waller, 282 Ga. App. 8, 11 (1) (a) (637 SE2d 505) (2006) (trial court erred in failing to grant default judgment where defendant failed to answer or open default within 15 days thereafter). As stated by this Court,

The plain language of [OCGA § 9-11-55] “entitles” a plaintiff default judgment where, as here, a defendant has failed to serve an answer timely, 15 days have elapsed from the time an answer was due without an answer served and costs paid, the defaulting defendant has made no attempt to open the default, and the action does not fall within any of the exceptions set forth in that Code section.

SRM Realty, 274 Ga. App. at 604 (2).

        And when court rules conflict with statutory law or case law, the court rules must yield to substantive law. See USCR, Preamble (“It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.”). See also Russell v. Russell, 257 Ga. 177 (356 SE2d 884) (1987) (case law precedent controlled over provisions of USCR 24.6 (D)); Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (1) (374 SE2d 785) (1988) (provisions of USCR 6.2 must yield to provisions of OCGA § 9-11-56 (c)).

        Because Contemporary failed to establish the presence of a nonamendable defect on the face of the record, the trial court abused its discretion by granting Contemporary’s motion to set aside the default judgment, and we therefore reverse. See, e.g., H. N. Real Estate, 298 Ga. App. at 126. Because the trial court erred by setting aside the default judgment, we need not reach Williams’s remaining enumerations of error, including that the trial court erred by opening default for Contemporary under OCGA § 9-11-55.

        Judgment reversed. Phipps, C. J., and Ellington, P. J., concur.

Notes:

  1. The judgment explains that at the hearing, the court heard evidence regarding Williams’s unliquidated damages.
  2. See Bridgestone/Firestone North American Tire v. Jenkins, 261 Ga. App. 20, 21 (2) (582 SE2d 9) (2003) (“[A] court may exercise its discretion for meritorious reasons to set aside a  judgment within the same term of court. . . . Once that term of court has ended, however, a  judgment may only be set aside under the procedures in OCGA § 9-11-60 (d).”) (citations omitted). Here, Contemporary filed its motion to set aside the  judgment outside of the term in which the default judgment was entered.
  3. The party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected and that no defensive pleading has been filed by the defendant as shown by court records. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.      Uniform Superior Court Rule 15.
  4. In the trial court, Contemporary moved to set aside the judgment on the second and third bases of OCGA § 9-11-60 (d): fraud/accident/mistake; and nonamendable defect in the record. Contemporary never argued that the trial court lacked jurisdiction over Contemporary. On appeal, Contemporary has abandoned its argument based on OCGA § 9-11-60 (d) (2) (fraud/accident/mistake). Thus the only issue on appeal regarding the trial court’s decision to set aside the default judgment is whether there was a nonamendable defect in the record. And “[t]he alleged nonamendable defect must be apparent from the face of the record in the absence of the additional evidence.” (Citation omitted.) Hardeman v. Roberts, 214 Ga. App. 484, 485 (448 SE2d 254) (1994).
  5. See OCGA § 9-11-4 (h) (“The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date.”).
  6. By our holding, we do not mean to suggest that Rule 15 should be ignored; rather, parties and their counsel should abide by its terms. We hold only that where the information required by Rule 15 is found in the record, the failure to provide a Rule 15 certificate in connection with a proposed default judgment does not constitute a non-amendable defect in the record.

 

Apr 16 16

Good-Time Credit Cannot be Avoided by Probation

by merlin

This entry concerns the Executive Branch’s independence in its decisions concerning administration of those matters solely left to its discretion from interference by the judiciary.

This case is Hutchins v. State, 243 Ga.App. 261, 533 S.E.2d 107 (Ga. Ct. App. 2000), and it involves a dispute between the two branches.  Defendant was sentenced to serve a minimum amount of time.  After serving less time than that and being given good-time credit, he served the amount of time specified in his sentence on probation and then sought early release.  The Court tried to avoid that, since he had been given about two months of Good Time credit, but the Court of Appeals disagreed with their efforts, since it is solely up to the Executive Branch (the jail and Sheriff’s Office, in this case) to decide to terminate his incarceration early.  The case makes for interesting reading on the separation-of-powers issue.

Closson, Bass & Tomberlin, J. Michael Bass, Valdosta, for appellant.

        Richard W. Shelton, Solicitor, for appellee.

        MILLER, Judge.

        Having pled guilty to driving under the influence, James Hutchins was sentenced to 12 months in the county jail, “[p]rovided, that after the service of 180 days in confinement, the balance shall be probated.” The sheriff awarded him 60 days credit for good time and released him following 120 days confinement. After serving probation for 185 days, Hutchins moved to have his sentence terminated, which the court denied on the ground that the 60 days of “good-time” credit had to be served on probation. The question on appeal is whether a sentence which orders a defendant to serve part of the sentence in jail with the balance probated can require that “good-time” credit resulting in an early release from confinement be served on probation. We hold it cannot and reverse.

        1. The State’s complaints about the imprecise wording of Hutchins’ enumeration of error are without merit.1 The enumeration adequately describes the ruling appealed.

        2. Johns v. State2 is dispositive. The defendant in Johns was sentenced to ten years (two to serve, eight on probation). The judge further ordered that any “good-time” credit be served on probation. Holding this was improper, Johns referred to former Code Ann. § 77-320.1(c), which directed that a prisoner be released at the expiration of his sentence less the time earned as “earned time” allowance.3 Johns explained that a sentence of confinement is fully served at the time the custodian releases the prisoner.4 “Any attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive. [Cits.]”5 Beyond violating the Georgia Constitution, Johns held that imposing additional probation as a result of an early release date contravened the intent of the statutory language directing that “earned time” credit be deducted from a prisoner’s sentence. 6

        OCGA § 42-4-7(b)(3) employs almost identical language: “An inmate sentenced to confinement as a county inmate shall be released at the expiration of his or her sentence less the time deducted for good-time allowances.”7 Based on Johns, we hold that this language prohibits a judge from imposing probation on any time by which confinement is shortened due to good-time credit. The legal consequence of that credit is that the related portion of the original sentence has been served. Because our holding is based on this statute, the State’s attempt to distinguish the separation of powers clause of the Georgia Constitution8is moot.

        3. In the same ruling the court stated that the start date of the sentence was July 7, 1998. But since the State stipulated that as of October 10, 1998, Hutchins had served 120 days of the 180 days sentenced, the start date necessarily was no later than June 12, 1998. The period of confinement was served as of October 10, and the 185 days of lawful probation expired on April 13, 1999, the day before the filing of Hutchins’ motion to terminate. Thus, the motion to terminate should have been granted.

        Judgment reversed.

        POPE, P.J., BLACKBURN, P.J., RUFFIN and ELDRIDGE, JJ., concur.

        ANDREWS, P.J., and SMITH, J., dissent.

        SMITH, Judge, dissenting.

        I respectfully dissent.

        In my view, the majority inappropriately applies the decision of Johns v. State, 160 Ga.App. 535, 287 S.E.2d 617 (1981), for several reasons. First, Johns addressed multiple felony sentences to a term of years in the state penitentiary, followed by a term of probation. This court held that the prison sentence was fully served at the time of Johns’s release by the department of offender rehabilitation under “good time” rules and that “[a]ny attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive. [Cits.]” Id. at 536, 287 S.E.2d 617. In contrast, here we consider a relatively brief misdemeanor sentence to be served in the county jail, in which the trial court balances the need for confinement and the need for continued supervision by the court, with the assistance of the probation department. Because of the different considerations inherent in the administration of misdemeanor sentences through county jails and probation departments, applying Johns in this case could interfere significantly with the ability of trial courts in this state to fashion effective misdemeanor sentences.

        Second, Johns was sentenced on each of three counts to “two years in the penitentiary and eight years on probation.” Johns, supra at 535, 287 S.E.2d 617. In contrast, the trial court here sentenced Hutchins to “confinement for a period of 12 months in the Lowndes County Jail…. Provided, that after the service of 180 days in confinement, the balance shall be probated.” (Emphasis supplied.) The distinction in the wording of these sentences is significant. Here, the trial court made a determination that Hutchins required the supervision of the trial court in some form for 12 months, and we should not interfere with that determination.

        For these reasons, I respectfully dissent.

        I am authorized to state that Presiding Judge ANDREWS joins in this dissent.

——–

        

Notes:

        1. Cf. Felix v. State, 271 Ga. 534, 539-540, 523 S.E.2d 1 (1999).

        2. 160 Ga.App. 535, 287 S.E.2d 617 (1981).

        3. Johns used the terms “good time” and “earned time” interchangeably. Id. at 536, 287 S.E.2d 617.

        4. Id.

        5. Id.; see Stephens v. State, 207 Ga.App. 645, 647-648(2), 428 S.E.2d 661 (1993).

        6. Johns, supra, 160 Ga.App. at 537, 287 S.E.2d 617; see Davis v. State, 181 Ga.App. 498(1), 353 S.E.2d 7 (1987) (court could not withhold good-time credit on grounds fines were unpaid).

        7. OCGA § 42-4-7(b)(1) expressly authorizes a county sheriff to award good-time allowances based on institutional behavior.

        8. Cf. Bldg. Auth. of Fulton County v. State of Ga., 253 Ga. 242, 247(5), 321 S.E.2d 97 (1984) (separation of powers clause applies to state and not counties); see generally Ga. Const. of 1983, Art. I, Sec. II, Par. III.

——–

 

Apr 14 16

Sex Offenders Are Not Eligible For Post-Conviction First Offender Treatment

by merlin

The statute that governs First Offender Discharges in Georgia is Section 42-8-62.  In 2004, the Georgia General Assembly made certain persons convicted of sex offenses ineligible for First Offender status, and then made that include an even broader swath of people.

The statute is as follows:

“(a) Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction. It shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following:

“Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-62.”

Such entry shall be written or stamped in red ink, dated, and signed by the person making such entry or, if the docket or record is maintained using computer print-outs, microfilm, or similar means, such entry shall be underscored, boldface, or made in a similar conspicuous manner and shall be dated and include the name of the person making such entry. The criminal file, docket books, criminal minutes and final record, and all other records of the court relating to the offense of a defendant who has been discharged without court adjudication of guilt pursuant to this subsection shall not be altered as a result of that discharge, except for the entry of discharge thereon required by this subsection, nor shall the contents thereof be expunged or destroyed as a result of that discharge.

(b) Should a person be placed under probation or in confinement under this article, a record of the same shall be forwarded to the Georgia Crime Information Center. Without request of the defendant a record of discharge and exoneration, as provided in this Code section, shall in every case be forwarded to the Georgia Crime Information Center. In every case in which the record of probation or confinement shall have been previously forwarded to the Department of Corrections, to the Georgia Crime Information Center, and to the Identification Division of the Federal Bureau of Investigation and a record of a subsequent discharge and exoneration of the defendant has not been forwarded as provided in this Code section, upon request of the defendant or his attorney or representative, the record of the same shall be forwarded by the clerk of court so as to reflect the discharge and exoneration.”

The Court is not permitted to sentence a person under the First Offender Act after the fact if they were sentenced from a plea of guilty or nolo contendre.  The rationale appears to be their own voluntary consent in the sentence given, so it is the sort of thing that has to be raised at or before sentencing, because it is lost if the opportunity is missed!  The statute that puts this idea forward is § 42-8-60:

“(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:

(1) Defer further proceeding and place the defendant on probation as provided by law; or

(2) Sentence the defendant to a term of confinement as provided by law.

(b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself or herself of this article on more than one occasion.

(c) The court shall not sentence a defendant under the provisions of this article and, if sentenced under the provisions of this article, shall not discharge the defendant upon completion of the sentence unless the court has reviewed the defendant’s criminal record as such is on file with the Georgia Crime Information Center.

(d) The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for:

(1) A serious violent felony as such term is defined in Code Section 17-10-6.1;

(2) A sexual offense as such term is defined in Code Section 17-10-6.2;

(3) Sexual exploitation of a minor as defined in Code Section 16-12-100;

(4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1;

(5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2; or

(6)(A) Any of the following offenses when such offense is committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties:

(i) Aggravated assault in violation of Code Section 16-5-21;

(ii) Aggravated battery in violation of Code Section 16-5-24; or

(iii) Obstruction of a law enforcement officer in violation of subsection (b) of Code Section 16-10-24, if such violation results in serious physical harm or injury to such officer.

(B) As used in this paragraph, the term “law enforcement officer” means:

(i) A “peace officer” as such term is defined in paragraph (8) of Code Section 35-8-2;

(ii) A law enforcement officer of the United States government;

(iii) A person employed as a campus police officer or school security officer;

(iv) A conservation ranger; and

(v) A jail officer employed at a county or municipal jail.”

Notice that the statute specifically says that the First Offender Act cannot be used to sentence a Defendant for a guilty or nolo contendere plea for a sexual offense “as such term is defined in Code Section 17-10-6.2”.  That statute seems pretty comprehensive as regards sexual offenses.  It provides as follows:

“(a) As used in this Code section, the term “sexual offense” means:

(1) Aggravated assault with the intent to rape, as defined in Code Section 16-5-21;

(2) False imprisonment, as defined in Code Section 16-5-41, if the victim is not the child of the defendant and the victim is less than 14 years of age;

(3) Sodomy, as defined in Code Section 16-6-2, unless subject to the provisions of subsection (d) of Code Section 16-6-2;

(4) Statutory rape, as defined in Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older;

(5) Child molestation, as defined in subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4;

(6) Enticing a child for indecent purposes, as defined in Code Section 16-6-5, unless subject to the provisions of subsection (c) of Code Section 16-6-5;

(7) Sexual assault against persons in custody, as defined in Code Section 16-6-5.1;

(8) Incest, as defined in Code Section 16-6-22;

(9) A second or subsequent conviction for sexual battery, as defined in Code Section 16-6-22.1; or

(10) Sexual exploitation of children, as defined in Code Section 16-12-100.

(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.

(c)(1) In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

(2) If the court deviates in sentencing pursuant to this subsection, the judge shall issue a written order setting forth the judge’s reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5-6-34, or by the State of Georgia pursuant to Code Section 5-7-1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.

(d) If the court imposes a probated sentence, the defendant shall submit to review by the Sexual Offender Registration Review Board for purposes of risk assessment classification within ten days of being sentenced and shall otherwise comply with Article 2 of Chapter 1 of Title 42.”

Even if a person was sentenced as a First Offender before the date that the statute was modified to include earlier offenses, if the person was adjudicated guilty of a sexual offense, they must still register on the Georgia Sexual Offender Registry.  The case that governs this situation is Watkins v. State, 283 Ga.App. 635, 642 S.E.2d 328 (Ga. Ct. App. 2007).  The opinion is below:

“MIKELL, Judge.

*Roger Lee Watson appeals from a trial court’s order that he register as a sex offender, arguing that the statute requiring such registration does not apply to him and is unconstitutional. We affirm.

On August 16, 2000, Watson entered an Alford 1 plea to charges of aggravated child molestation and sexual battery. Noting his status as a first offender, the trial court sentenced him to ten years probation. First offenders were not required to register with the state sexual offender registry at the time Watson entered his plea.

In 2005, the General Assembly amended the sexual offender registry statute, OCGA § 42-1-12, by removing language from the 2004 version stating that it applied only “to sentences imposed on or after July 1, 2004.”2 Instead, the 2005 version provided that first offenders “shall be subject to the registration requirements of this Code section[,]”3 and that “[o]n and after July 1, 1996, a person who is convicted of a criminal offense against a victim who is a minor … shall register as a sex offender within ten days after his or her release from prison or placement on parole.”4 As before, the 2005 statute also specified that “[a]ny person who is required to register under this Code section and who fails [to do so] or who provides false information shall be guilty of a felony” punishable by imprisonment for at least a year.5 These amendments became effective on July 1, 2005.6

On July 26, 2005, Watson moved the trial court for an order that he was not subject to the registration requirement. After a hearing, the trial court denied his motion.

1 1. In Peters v. Donald,7 we considered and rejected the argument that the registration requirement imposed in 2005 does not apply to convictions entered before that time. As we explained in Peters, the General Assembly amended OCGA § 42-1-12 in 2004 so as to require first offenders to register, and applied this requirement to “sentences imposed on or after July 1, 2004.”8 But the 2005 amendment struck this limitation on the retroactivity of the registration requirement. After the effective date of the 2005 amendment, then, and as we held in Peters, “even first offenders convicted before July 1, 2004, … were required to register.” 9 Watson was convicted in 2000, and is therefore subject to the registration requirement of OCGA § 42-1-12.10

2  2. We address the merits of Watson’s constitutional challenge by authority of Pollard v. State, 11 under which the Court of Appeals has jurisdiction to decide cases that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.12

3 There is no doubt about the meaning of the statutory provision at issue here, its application to a first offender convicted after July 1, 1996, or its validity in the face of Watson’s attack on it as an ex post facto law. In Thompson v. State, 13 the Supreme Court of Georgia upheld OCGA § 42-1-13’s mandate that any convicted child molester who continued to reside within 1,000 feet of any area where children congregated would be guilty of a felony. The Court reasoned that because such a person’s failure to abide by the statute would give rise to “a new crime based in part on an offender’s status as a child molester,” the statute was not retrospective and therefore was not an ex post facto law.14 The same rationale applies where, as here, Watson would be guilty of a felony entirely distinct from those of which he was convicted in 2000 if he failed to register with the sexual offender registry. 15

Because Watson is subject to OCGA § 42-1-12, and because that statute is not an ex post facto law, the trial court did not err when it ordered Watson to register as a sex offender.

Judgment affirmed.

BLACKBURN, P.J., and ADAMS, J., concur.”