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Aug 27 14

Voluntary Separation to Resolve Marital Disputes

by merlin

Often, two people have such irreconcilable differences that they need to have clear, externally-imposed guidelines on playing fair with each other and with any children from their marriage.  Often, it is the lack of such guidelines that keeps them from taking the step of obtaining a divorce, because they just don’t feel willing to do something so final without a little certainty about it.  Maybe they don’t need a divorce, though – maybe they just need some time away from each other to clear their heads, but want some rules to make sure they both play fair during that time apart.

For this reason, Georgia law allows for a voluntary separation while two people work out their differences and resolve the issues that a divorce decree and separation agreement would necessarily entail but without the mutual revulsion that such a situation generally can involve.  Specifically, this arrangement is hinted at in Section 19-6-8 of the Official Code of Georgia, which provides that

“[i]n cases of voluntary separation or in cases where one spouse, against the will of that spouse, is abandoned or driven off by the other spouse, a party voluntarily, by contract or other written agreement made with his spouse, may make an adequate provision for the support and maintenance of such spouse, consistent with the means of the party and the former circumstances of the spouse. Such an agreement shall be a bar to the right of the spouse to permanent alimony.”

What this allows is for the parties themselves to figure out how much and when support should be paid, instead of having a Court announce its Order as to who should pay what.  It goes further, of course – the house, the car, and even the family pet could all be provided for.  Many couples have benefited from this process, though it continues to be underutilized.  These kinds of agreements are, of course, perfectly valid contracts, and they are appealable in and of themselves.  In fact, the State of Georgia has an express policy to enforce voluntary and mutually-agreeable contracts like this one – “The superior courts of this state encourage parties to reach settlements rather than waiting years to find a place on the crowded dockets.”

 The case referenced above talks about the enforceability of mutually-agreed terms in Settlement Agreements.  It’s Robinson v. Robinson, 261 Ga. 330, 404 S.E.2d 435 (Ga. S. Ct. 1991):

        Marva B. Simpson, Vanessa I. Hickey-Gales, Atlanta, for Terry C. Robinson.

        Dana A. Azar, Decatur, for Thomas W. Robinson.

        SMITH, Presiding Justice.

        Mr. and Mrs. Robinson appeared in the Superior Court of Gwinnett County on March 26, 1990 for a final hearing on their divorce petition. The parties’ attorneys announced that a settlement had been reached, and they wished to put the terms of the settlement into the record. When the agreement was memorialized, an additional term was included that was not read into the record. Despite the appellant’s, Mrs. Robinson’s, protest, the trial court order included the additional term. We granted the appellant’s discretionary appeal and asked the parties to address whether or not “the judgment entered by the trial court accurately reflects the settlement reached by the parties.” We find that it does not, and we reverse.

        During the settlement hearing, Mr. Robinson’s attorney stated that Mr. Robinson would make alimony payments until a certain date provided that Mrs. Robinson did “not die [or] remarry.” That was the only reference to termination of alimony read into the record by the appellee. Mrs. Robinson’s attorney responded, “All the alimony payments are subject to that, we don’t have to repeat that with every payment.” On three different occasions during the hearing, without challenge by Mr. Robinson, Mr. Robinson’s attorney stated that the agreement read into the record was the full and final agreement between the parties and that it was not subject to modification. 1 After the full agreement was read into the record, the parties were examined. Mr. Robinson testified that the agreement was correct, that he understood and was satisfied with the terms of the agreement, and that he desired the agreement to be made a part of the order of the court and be enforceable by the court. Mrs. Robinson also testified that she understood and was satisfied with the terms of the agreement. However, the memorialized agreement presented to the court included a term that was not in the record, i.e., that Mrs. Robinson’s alimony would terminate if she “cohabits with another male.” Despite Mrs. Robinson’s protest, the final divorce decree included the additional termination event.

         The appellant relies upon Daniel v. Daniel, 250 Ga. 849, 852, 301 S.E.2d 643 (1983) for the proposition that “[t]here is a strong public policy in favor of enforcing contracts as written and agreed upon.” The appellee, looking to another line of cases, argues that the trial court acted within its discretion as it has the authority to approve or disapprove an agreement “in whole or in part, or refuse to approve it as a whole. If in making the agreement a part of the decree, there is express provision in the decree that … conflicts with the agreement between the parties … the words of the decree will control.” Amos v. Amos, 212 Ga. 670, 671, 95 S.E.2d 5 (1956).

        The domestic relations laws of this state have changed tremendously since Amos was written, without citation of authority, and our superior courts are experiencing case loads that could not have been envisioned thirty-five years ago. The superior courts of this state encourage parties to reach settlements rather than waiting years to find a place on the crowded dockets. Our strong public policy of encouraging negotiations and settlements would be greatly eroded if we allow trial courts to add substantive terms to agreements read and recorded in open court. Additionally, it would create an anomaly if we allow trial courts to make substantive additions in voluntary agreements made before the court while forbidding substantive changes in jury verdicts. “The decree should carry the verdict into effect, not destroy it. [OCGA § 19-5-13]; Gilbert v. Gilbert, 151 Ga. 520, 523 (107 SE 490).” Wise v. Wise, 156 Ga. 459, 465, 119 S.E. 410 (1923). See generally, OCGA §§ 9-12-7 and 17-9-40. 2 Just as a decree should accurately reflect the jury’s verdict, a decree should also accurately reflect a settlement reached by the parties.

        Judgment reversed.

        All the Justices concur, except HUNT, J., who concurs in the judgment only.

—————

1 “Excuse me, Your Honor, let me restate the alimony section. The full and final settlement of each and all their rights against each other, they both waive the right to modify this agreement.” “Both sides have waived their right to a future modification of this and it’s a full and final settlement. I think all matters should be controlled by Georgia Law.” “[W]e believe this is a full and final settlement of each and every right and it’s fully and finally settled.”

2 In child custody cases, trial courts are required to ratify agreements made between the parents and make them part of the court’s final judgment “unless the court makes specific factual findings that the agreement would not be in the best interest of the child or children.” OCGA § 19-9-5(b).

 

Aug 25 14

The Certificate of Service of Discovery

by merlin

Uniform Rule of Superior Court 5.2 governs the proper method to show service in Discovery (termed generally as a Certificate of Service of Discovery).  It holds as follows:

“(1) Depositions and other original discovery material shall not be filed with the court unless or until required by the provisions of OCGA § 9-11-29.1(a) (1) (5).

(2) A party serving Interrogatories, Requests for Production of Documents, Requests for Admission and Answers or responses thereto upon counsel, a party or a non party shall file with the court a certificate indicating the pleading which was served, the date of service (or that the same has been delivered for service with the summons) and the persons served.”

The statutory subsection that this Rule refers to, (a)(1)(5), is actually something I was completely unaware of until several years after law school, when I first saw a Certificate of Service of Discovery.  While that method means that it is far less costly for a solo practitioner to engage fully in the Civil Discovery process, the issue of fairness is paramount.  This statutory rule attempts to bring a little more fairness to the process by requiring that the items that are used in trial and post-trial motions from Discovery are filed and served, to the extent that they are used.  I have never observed a Discovery fight involving this issue, but the consideration seems valid.  That statutory subsection is below:

“(5) Such material is to be used at trial or is necessary to a pretrial or posttrial motion and said material has not previously been filed under some other provision of this chapter, in which event the portions to be used shall be filed with the clerk of court at the outset of the trial or at the filing of the motion, insofar as their use can be reasonably anticipated by the parties having custody thereof, but a party attempting to file and use such material which was not filed with the clerk at the outset of the trial or at the filing of the motion shall show to the satisfaction of the court, before the court may authorize such filing and use, that sufficient reasons exist to justify that late filing and use and that the late filing and use will not constitute surprise or manifest injustice to any other party in the proceedings.”

Aug 21 14

Re-Post (3/28/14, on Legitimation as a Separate Proceeding)

by merlin

As part of an ongoing matter involving complex but interrelated issues of custody, visitation, and criminal charges, this issue has arisen again.  This time, the novel occurrence of an Acknowledgment of Legitimation (whose initial efficacy as an intelligent aspect of the Grandparent Visitation Act has been diminished by subsequent interpretation) made matters more complex, and the best way to deal with the situation appears to be the filing of an entirely new legitimation action itself, subsuming and incorporating any prior modification of custody action.  As a refresher to this topic, here is an earlier post on this issue from March of this year:

Previously, this site has addressed Section 19-7-22 of the Official Code of Georgia, which sets forth the right and mechanism of the father to legitimate his relationship with his biological child.  In section f.1 of that statute, certain other rights are granted to the petitioner.  It says that “[t]he petition for legitimation may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard. In a case involving allegations of family violence, the provisions of paragraph (4) of subsection (a) of Code Section 19-9-3 shall also apply.”

However, legitimation cannot be raised as part of a proceeding to prevent an adoption, and must be pursued separately.  The case that establishes this rule in Georgia is Brewton v. Poss, 316 Ga.App. 704 (Ga. Ct. App. 2012).  Note that counsel for Poss, who won the case, was James B. Outman, whose abilities in this field are to be respected and admired.  The opinion follows:

Christoper Michael Blanchard, for Brewton.

James B. Outman, Albert L. Stone Jr., Danielsville, for Poss.

DOYLE, Presiding Judge.

        Kenneth Jason Poss initiated a proceeding to adopt T.J.B., the biological son of Kristen Poss, Kenneth’s wife. Lee Thomas Brewton, the putative biological father, filed a petition for legitimation of T.J.B. as a part of that proceeding. Kenneth moved to quash the petition, and the superior court granted the motion, giving rise to this discretionary appeal. 1 Brewton contends that the superior court erred by ruling that he failed to meet the requirements for filing a petition for legitimation under OCGA § 19–7–22 and therefore denying his motion to sever the petition he filed in the adoption proceeding. For the reasons that follow, we reverse.

        The record shows that in February 2011, Kenneth filed in superior court a petition for adoption of T.J.B. and notified Brewton by publication.2 The last date of publication was February 25, 2011. On March 4, 2011, Brewton, represented by counsel, filed in the same court a petition for legitimation of his relationship with T.J.B., naming Kristen as a defendant, and he attempted to serve Kristen by mailing a copy to Albert Stone, Jr., who had filed the adoption petition on behalf of Kenneth.3 Brewton’s legitimation petition was filed with the same civil action number as Kenneth’s adoption petition, and no filing fee was required by the clerk.

        On March 31, 2011, Kenneth moved to quash Brewton’s legitimation petition. After receiving the motion, Brewton personally served Kristen on April 20, 2011. On May 11, 2011, Kristen appeared pro se and filed an answer to the legitimation petition and a counterclaim for pregnancy-related medical costs and child support. Brewton filed a response to the motion to quash and moved to sever his legitimation petition from the adoption proceeding. After a hearing, the superior court granted Kenneth’s motion to quash, thereby denying Brewton’s motion to sever, on the ground that Brewton had failed to properly file his legitimation petition. Brewton filed an application for discretionary appeal, which this Court granted.

         Brewton contends that the trial court erred by ruling that he failed to properly file his legitimation petition in accordance with OCGA § 19–7–22, which provides as follows, in relevant part:

        (a) A father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother or other party having legal custody or guardianship of the child…. If a petition for the adoption of the child is pending, the father shall file the petition for legitimation in the county in which the adoption petition is filed.

        (b) The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the “Georgia Civil Practice Act.”

Based on this Code section, the trial court ruled that Brewton’s petition “had no legal effect” because it was not filed as a separate civil action apart from the pending adoption proceeding.

        OCGA § 19–7–22 does not define the term “petition,” 4 and does not explicitly state whether the petition must be filed as a separate civil action, or whether it could be filed as part of a pending action. 5 Thus, we turn to the rules of statutory construction, 6 which “require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.” 7

        Turning to the terms of OCGA § 19–7–22, we note that although the Code section does not explicitly state that a legitimation petition must be a separate civil action, the Code section employs language suggesting that a legitimation petition would initiate a separate action as opposed to merely requesting relief within another pending case. For example, subsection (b) refers to “other civil actions,” meaning that a legitimation petition itself is viewed as a type of civil action. Subsection (f.1) refers to the petition as a “legitimation action.” 8 This language within OCGA § 19–7–22 suggests that legitimation petitions are separate civil actions. And subsection (g), applicable to suits for paternity under OCGA § 19–7–43(a)(4), explicitly state that an alleged father may file a third party action for legitimation as part of his response to the paternity suit. The absence of language explicitly providing for a similar avenue in the adoption context implies that the legislature intended legitimation petitions to be stand-alone actions.9

        Moreover, the adoption statutes, which are implicated in this context, are informative. OCGA § 19–8–12, which requires an adoption petitioner to give notice to the biological father, provides that a biological father will lose all rights to the child unless he files a petition to legitimate and files “ notice of the filing of the petition to legitimate… with the court in which the [adoption] action … is pending….” 10 It would make no sense to require a separate notice of the filing of the legitimation petition if it already was a part of the adoption proceeding, and such a requirement would be superfluous. Therefore, like the legitimation statute, the adoption statute functions as if a legitimation petition would be filed in a separate action.

         In light of these statutory schemes, we conclude that the petition in this case should have been filed as a separate civil action. Having so concluded, we must nevertheless consider whether the trial court erred by denying Brewton’s motion to sever. It is clear that Brewton’s petition complied with the substance of the legitimation statute, other than by having a separate civil action number: the petition contained the requisite information, it was served on the mother,11 and it was timely filed in the proper court. Further, Brewton’s failure to file his petition as a separate civil action caused no prejudice to anyone. OCGA § 1–3–1, applying to the construction of statutes generally, provides that “substantial compliance with any statutory requirement … shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” 12 Applying this policy here is appropriate because “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring … [Termination of that right] can be done by the court only under the most carefully controlled and regulated circumstances….” 13 Therefore, in light of the fundamental right at stake, the lack of prejudice, and Brewton’s substantial compliance with the statute in every way other than prevailing upon the clerk to file the petition under a different civil action number, we conclude that the trial court abused its discretion by denying his motion to sever.

        Kenneth argues that Brewton’s failure to pay a filing fee and file a civil case filing form required by OCGA § 9–11–3(b) are fatal to his legitimation claim. But the record shows that the clerk, when asked by Brewton, did not require payment of a filing fee, and Brewton’s attorney merely followed the procedure suggested by the clerk. OCGA § 9–11–3(b) provides that

        [i]f, 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.14

Thus, under the circumstances of this case, any such filing defects can be cured upon remittur.

        Judgment reversed.

ANDREWS and BOGGS, JJ., concur.

——–

Notes:

        1. Brewton filed his application pursuant to OCGA § 5–6–35(a)(2), which addresses domestic relations cases. Having granted the application, we need not decide whether the ruling on his legitimation petition would be directly appealable under the collateral order doctrine. See, e.g., Britt v. State, 282 Ga. 746, 748(1), 653 S.E.2d 713 (2007).

        2. See OCGA § 19–8–12(b), (c).

        3. Kristen Poss was not a party to the adoption action.

        4. But see Phagan v. State, 287 Ga. 856, 858–859, 700 S.E.2d 589 (2010) (“petition” and “complaint” are synonymous and both are pleadings within the purview of the Civil Practice Act).

        5. Compare Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 407, 696 S.E.2d 640 (2010) (OCGA § 9–11–9.1, on its face, required “a motion to dismiss to be [separately] filed in addition to the first responsive pleading,” because it required the defendant to raise its dispositive defense “ ‘ by motion to dismiss filed contemporaneously with its initial responsive pleading.’ ”) (emphasis in original).

        6. See Cook v. NC Two, L.P., 289 Ga. 462, 465, 712 S.E.2d 831 (2011) (“rules of statutory construction are not applicable when the statute is plain and unambiguous and susceptible to but one natural and reasonable construction since judicial construction of such a statute is unauthorized”).

        7. (Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003), citing OCGA § 1–3–1(a).

        8. (Emphasis supplied.)

        9. See SRB Investment Svcs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 6(3)(a), 709 S.E.2d 267 (2011) (presuming that omission of certain language was intentional because another statute contained the language); In the Interest of T.C.D., 281 Ga.App. 517, 518, 636 S.E.2d 704 (2006) (language cannot be added to a statute by judicial decree).

        10. (Emphasis supplied.) OCGA § 19–8–12(e). Consistent with the notice scheme, Uniform Superior Court Rule 39.6 requires adoption dockets to be maintained separate from regular civil dockets.

        11. The fact that Brewton did not complete service on the mother within the 30–day deadline in OCGA § 19–8–12(e) was not fatal for the same rationale as explained inIn the Interest of A.H., 279 Ga.App. 77, 82(2), 630 S.E.2d 587 (2006).

        12. (Emphasis supplied.)

        13. (Punctuation omitted.) Id.

        14. (Emphasis supplied.)

Aug 19 14

First Offender Status Cannot Be Added Once a Plea is Entered

by merlin

Having obtained permission from the State to modify a sentence entered this term of Court if it was legal (because they stated that they had done such a thing before), the next step was an inquiry into the legality of accomplishing this.  Unfortunately, it just doesn’t appear to be permitted under the law, according to the plain language of the statute and the cases that have discussed the ability of courts to modify sentences to include First Offender status.

The below case, Burchette v. State, 247 Ga.App. 873 (Ga. Ct. App. 2005), talks about a modification of an existing sentence to include First Offender status, because the person was considered eligible for it but had not entered their sentence under the Act.  It specifically dealt with the ability of the Court to modify the sentence imposed within the one-year time-limit for such modifications under Section 17-10-1(f) of the Official Code of Georgia.

 That subsection reads as follows:

Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.”

Unfortunately, in the Burchette case, the Court looked to the plain language of the First Offender statute and saw that the power of the court is entirely based on the punishment being imposed prior to finding the person guilty.  Therefore, a post-sentence modification that would seek to impose the First Offender statute’s conditional discharge provisions would be impossible to apply once the sentence was imposed and the person had already entered a guilty plea that had been adopted by the Court.  As I had learned from my research previously, when this situation first arose, the only legal way to get this done would be to withdraw the guilty plea during the same term of court, if the Court allows it, and then re-sentence the person under the First Offender Act.

The Burchette case is below:

 Banks Stubbs Neville & Cunat, Rafe Banks, Cumming, for appellant.

        Penny Penn, District Attorney, for appellee.

        ELLINGTON, Judge.

        In August 2001, a Forsyth County jury convicted Michael Burchette of arson, OCGA § 16-7-60. The trial court denied his request for first offender treatment under OCGA § 42-8-60 and sentenced him to 15 years probation. After this Court affirmed his conviction,1 Burchette filed a motion with the trial court to modify his sentence by granting him first offender treatment. The court denied the motion, finding that it could not grant first offender treatment after it had imposed sentence. Burchette appeals and, finding no error, we affirm.

        Georgia’s first offender law, OCGA § 42-8-60(a), states as follows:

        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.

        (Emphasis supplied.) Under the plain language of this statute, a trial court is only authorized to grant first offender treatment before a defendant has been adjudicated guilty and sentenced. Lewis v. State, 217 Ga.App. 758, 759, 458 S.E.2d 861 (1995). It follows that, once a trial court imposes a sentence, the defendant loses the opportunity to be treated as a first offender. Id.

        Burchette argues, however, that the trial court retained jurisdiction to modify or reduce his sentence in this case pursuant to OCGA § 17-10-1(f),2 and, therefore, the trial court had the authority to modify his sentence to give him first offender treatment. But OCGA § 17-10-1(f) only provides an opportunity for a court to modify an existing sentence. Therefore, the statute cannot be used to grant first offender treatment when the first offender act specifically prohibits such modification after sentencing. OCGA § 42-8-60 et seq.; Lewis v. State, 217 Ga.App. at 759, 458 S.E.2d 861. Burchette’s argument to the contrary is without merit.

        Accordingly, we find the trial court properly denied Burchette’s motion to modify his sentence.

         Judgment affirmed.

        SMITH, P.J., and ADAMS, J., concur.

—————

Notes:

 1. Burchette v. State, 260 Ga.App. 739580 S.E.2d 609 (2003); see also Burchette v. State, 278 Ga. 1, 3, 596 S.E.2d 162 (2004) (holding that a portion of the trial court’s Allen charge to the jury was inaccurate and should no longer be given, but affirming Burchette’s conviction).

 2. Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.

         OCGA § 17-10-1(f).

—————

Aug 13 14

Proper Substitution of Counsel

by merlin

This is not the entry that I intended to do earlier, but I have learned something and I know I need to share it with my readers, because it was NOT something I was aware of at all, and it is also something I know many other attorneys do not know, either.

In Georgia, for a Substitution of Counsel to be effective, it must be signed BOTH by the new attorney AND by the person themselves.  Otherwise, it will only add the name of another attorney to the list (and that previous attorney will still be on the hook for the representation, which certainly puts us at a disadvantage).

For your reference, the text of Georgia Uniform Superior Court Rule 4.3 on Withdrawal is below:

(1) An attorney appearing of record in any action pending in any superior court, who wishes to withdraw as counsel for any party therein, shall submit a written request to an appropriate judge of the court for an order of court permitting such withdrawal. Such request shall state that the attorney has given due written notice to the affected client respecting such intention to withdraw 10 days (or such lesser time as the court may permit in any specific instance) prior to submitting the request to the court or that such withdrawal is with the client’s consent. Such request will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client. The attorney requesting an order permitting withdrawal shall give notice to opposing counsel and shall file with the clerk in each such action and serve upon the client, personally or at that client’s last known address, a notice which shall contain at least the following information:

(A) That the attorney wishes to withdraw;

(B) That the court retains jurisdiction of the action;

(C) That the client has the burden of keeping the court informed respecting where notices, pleadings or other papers may be served;

(D) That the client has the obligation to prepare for trial or hire other counsel to prepare for trial when the trial date has been set;

(E) That if the client fails or refuses to meet these burdens, the client may suffer adverse consequences, including, in criminal cases, bond forfeiture and arrest;

(F) The dates of any scheduled proceedings, including trial, and that holding of such proceedings will not be affected by the withdrawal of counsel;

(G) That service of notices may be made upon the client at the client’s last known address, and,

(H) If the client is a corporation, that a corporation may only be represented in court by an attorney, that an attorney must sign all pleadings submitted to the court, and that a corporate officer may not represent the corporation in court unless that officer is also an attorney licensed to practice law in the state of Georgia;

(I) Unless the withdrawal is with the client’s consent, the client’s right to object within 10 days of the date of the notice.

The attorney seeking to withdraw shall prepare a written notification certificate stating that the above notification requirements have been met, the manner by which such notification was given to the client and the client’s last known address and telephone number. The notification certificate shall be filed with the court and a copy mailed to the client and all other parties. The client shall have 10 days prior to entry of an order permitting withdrawal or such lesser time as the court may permit within which to file objections to the withdrawal. After the entry of an order permitting withdrawal, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal; thereafter all notices or other papers may be served on the party directly by mail at the last known address of the party until new counsel enters an appearance.

(2) When an attorney has already filed an entry of appearance and the client wishes to substitute counsel, it will not be necessary for the former attorney to comply with rule 4.3(a). Instead, the former attorney may file with the clerk of court a notice of substitution of counsel signed by the party and the former attorney. The notice shall contain the style of the case, the name, address, phone number and bar number of the substitute counsel. A copy of the notice shall be served on the substitute counsel, opposing counsel or party if unrepresented, and the assigned judge. No other or further action shall be required by the former attorney to withdraw from representing the party. The substitution shall not delay any proceeding or hearing in the case.

The notice may be in substantially the following form:

IN THE SUPERIOR COURT OF_COUNTY

STATE OF GEORGIA

SAM SPADE,

Plaintiff,

v.

DAVID ROBICHEAUX,

Defendant.

CIVIL ACTION

FILE NO. 99-CV-0000

NOTICE OF SUBSTITUTION OF COUNSEL

Please substitute (name of substitute counsel) as counsel for (name of party) in this case.

Substitute counsel’s address, phone number and bar number are as follows: ________

All further pleadings, orders and notices should be sent to substitute counsel.

This_day of_,_.

signature signature

Name of former attorney Name of party

Address Address Phone number Phone number

CERTIFICATE OF SERVICE

____________________________________________________________________

Your attention is drawn to paragraph (2).  It contains a typographical error, referring to paragraph (a), but it appears intended to refer to paragraph (1), instead.  More importantly, note that it places a burden on the attorney that previously represented the person to file a notice with the Clerk of Court stating affirmatively that they no longer represent the person because of a substitution of counsel, and have that affirmative notice signed by the person themselves.

Aug 12 14

Georgia Rules – Consent Judgments and Also Attorney’s Fees

by merlin

The case of Rimmer v. Tinch, 324 Ga.App. 65 (Ga. Ct. App. 2013), is something I came across quite by accident while checking to see if there were any special rules I wasn’t considering regarding a consent judgment to address a situation that arose suddenly in a case.  It is being put forward here because it is really comprehensive as far as the rules that govern a consent judgment’s binding power in a case (“an order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order”), and has the added bonus of being a really good guide to what kind of evidence must be put forward by a party to justify an award of attorney’s fees (“[a]n award of attorney fees is unauthorized if [a party] failed to prove the actual costs of the attorney and the reasonableness of those costs.”).

MILLER, Judge.

 

John and Mary Rimmer, adoptive father and biological mother of son M.H.R., born April 9, 2004, appeal from the trial court’s grant of a petition to modify the visitation rights of Shane Tinch, the biological father of M.H.R., and the trial court’s grant of a motion for contempt filed by Tinch and Patricia Frix, the paternal grandmother of M.H.R., alleging interference with their visitation rights. The termination of Shane Tinch’s parental rights, M.H.R.’s adoption by John Rimmer, and Tinch and Frix’s visitation rights were all accomplished by a consent order. On appeal, the Rimmers challenge the consent order as void. They also argue that the trial court erred in modifying Tinch’s visitation and in awarding attorney fees. For the reasons that follow, we affirm in part, vacate in part, and remand with direction.

In an adoption case, the trial judge sits as both judge and jury and is vested with a broad range of legal discretion which will not be controlled by the appellate courts except in cases of plain abuse. Sastre v. McDaniel, 293 Ga.App. 671, 667 S.E.2d 896 (2008). In addition, “a trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation and punctuation omitted.) Hunter v. Hunter, 289 Ga. 9, 11(4), 709 S.E.2d 263 (2011).

The following is not disputed. On November 19, 2009, Tinch’s petition to legitimate M.H.R. was dismissed. On December 7, 2009, the superior court entered its “Consent Order Entering Decree of Adoption” (hereafter “Consent Order”).

In the Consent Order, the trial court made the following findings of fact and conclusions of law. Tinch was not married to Mary Rimmer when M.H.R. was born and did not file any action to legitimate him until one month after John Rimmer’s petition to adopt was filed. Since his birth, M.H.R. has been in the legal custody of his mother and, since June 2005, John Rimmer has lived with the mother and child. John and Mary married in May 2006.

Since August, 2004, Tinch failed to provide for the care and support of the child for over a year and since April 2005, Tinch failed to communicate with or to make a bona fide attempt to communicate with the child for over a year. Thus, the trial court found that sufficient evidence existed to terminate his parental rights pursuant to OCGA § 19–8–10(b)(1) & (b)(2). Nonetheless, the Rimmers agreed that Tinch “shall have the right to begin supervised visits with [M.H.R.] on those occasions that this child is visiting with his paternal grandmother, Patricia Frix, who shall be responsible for supervising all visits” between Tinch and the child. Further, the Rimmers agreed that, if Tinch could prove that “he has established a familial bond” with the child, one year after entry of the adoption order he could file a petition seeking unsupervised visits to be set by the trial court or agreed by the parties.

The Consent Order further found that, since the child’s birth, the paternal grandmother, Frix, had been allowed regular unsupervised visits with the child. The Rimmers agreed that Frix had established a bond with the child and that it was in the child’s best interest to continue the visits with her. Additionally, John Rimmer agreed that Frix be allowed to intervene in the adoption proceeding in order to seek continuation of her visits with the child.

No appeal was taken from the Consent Order. More than one year after the Consent Order, Tinch filed his motion to modify visitation rights, seeking the right to have unsupervised visitation with the child, as provided in the Consent Order.

Having obtained new counsel, the Rimmers filed an objection to the motion, including a plea for a declaratory judgment finding the Consent Order void, as well as a motion for summary judgment asserting that allowing visitation with Tinch and Frix was illegal. In response, Tinch and Frix asserted that the Rimmers were estopped from challenging the Consent Order. Tinch and Frix also filed a motion for contempt against the Rimmers, based upon denial of their visitation rights beginning in September 2011.

The trial court denied the Rimmers’ motion for summary judgment, concluding that, pursuant to OCGA § 19–7–3(b), as amended in 1993, Ga. Laws 1993, p. 456, § 1,1 Frix was entitled to seek visitation rights. No specific ruling was made on the Rimmers’ claim that visitation with Tinch was illegal.

Following a hearing, the trial court entered its order on Tinch’s motion to modify visitation and Tinch and Frix’s motion for contempt, finding that Tinch would share visitation rights with Frix and those visitations would be unsupervised. Further, the trial court found the Rimmers in contempt of the Consent Order, ordered corrective actions to make up for the lost visitation, and ordered the Rimmers to pay the attorney fees of Tinch and Frix.

1. In the Rimmers’s first five enumerations of error, they allege illegalities in the underlying Consent Order. We consider these enumerations together and conclude that their challenges to the Consent Order were barred for the following reasons.

(a) First, as stated above, no appeal was taken from the Consent Order. Pursuant to OCGA § 19–8–18(e), “[a] decree of adoption … shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” (Emphasis supplied.); See also Oni v. Oni, 323Ga.App. 467, *3 (1), 746 S.E.2d 641 (2013) (challenge to adoption order time barred when made 10 months after entry) (physical precedent only). Here, the adoption decree contained in the Consent Order was entered on December 7, 2009 and the Rimmers sought to challenge that order over a year later on December 14, 2010. Thus, to the extent that they challenged the adoption decree portion of the Consent Order, their challenge is barred.

(b) Second, counsel for the Rimmers prepared the Consent Order, and an order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order. Rieffel v. Rieffel, 281 Ga. 891(3), 644 S.E.2d 140 (2007). The Rimmers “cannot now complain of a result [they] aided in causing because induced error is not an appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga.App. 366, 371(2), 729 S.E.2d 510 (2012).

(c) Finally, as asserted by Tinch and Frix below and here, the Rimmers’s challenges to the Consent Order are also precluded by res judicata and judicial estoppel.

The doctrine of res judicata seeks to bring finality to litigation. By law, “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9–12–40; Austin v. Cohen, 268 Ga.App. 650, 654(1), 602 S.E.2d 146 (2004).

In Cain v. Hackley, 124 Ga.App. 429, 184 S.E.2d 60(1971), Hackley left her illegitimate child with the Cains in mid-June 1969, with a note indicating she was not abandoning the child, but had tried to find her a nice home. Upon Hackley’s return from Florida in August, she filed a habeas corpus petition to obtain custody of her child. After a hearing, the trial court denied her petition and awarded custody to the Cains. No appeal was taken from that order. Later, the Cains filed a petition to adopt the child, which the trial court denied and then granted custody to the mother. On appeal, this Court found that “[t]he award of custody to the Cains in the habeas corpus proceeding is res judicata until and unless it has been set aside by proper proceedings on appeal, or until it be found by a court having jurisdiction of the matter that there has been a change of conditions which requires or justifies a change in the child’s custody.” Hackley, supra 124 Ga.App. at 430(3), 184 S.E.2d 60.

Bates v. Bates, 317 Ga.App. 339, 730 S.E.2d 482 (2012) involved an adoption petition filed by Tina Bates to adopt the child of her then-partner, Nicole Bates. Nicole consented to the adoption and it was granted. Following their breakup, Nicole filed a motion to set aside the adoption, arguing that it was void. The trial court denied the motion as untimely under OCGA § 19–8–18(e). In the meantime, Tina had filed a petition seeking custody of the child, which the trial court denied based on Nicole’s argument that the adoption decree was void because Georgia does not recognize “second parent” adoptions. In reversing this finding, this Court concluded that, as between Nicole and Tina, the adoption decree was binding. Bates, supra, 317 Ga.App. at 341–344, 730 S.E.2d 482.

Moreover, this Court also noted the efficacy of the doctrine of judicial estoppel to this situation, stating that the doctrine

is intended to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment, and it forbids [parties], who ha[ve] successfully maintained a certain position in a legal proceeding to assume a contrary position simply because [their] interests have changed especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by [them].

(Punctuation and citations omitted.) Bates, supra, 317 Ga.App. at 344, n. 5, 730 S.E.2d 482.

Here, the Rimmers, knowing that the parental rights of Tinch were terminated in the Consent Order, nonetheless agreed to let him have visitation with their son supervised by Frix for a year and then to have the opportunity to seek unsupervised visitation. They cannot now complain that he did so.

Therefore, we find the Rimmers’s attacks on the Consent Order to be barred.

2. In their sixth enumeration, the Rimmers contend that the trial court erred when it modified Frix’s visitation with the child without first considering the best interest of the child. This claim lacks merit.

The order on Tinch’s motion to modify and Tinch and Frix’s motion for contempt, however, does not make a permanent upward adjustment of Frix’s visitation. Instead, it orders that the Rimmers “shall purge themselves [of contempt] by extending extra visitation to … Tinch and … Frix” by allowing visitation one extra weekend a month for 12 months, along with half of the fall break vacation and extra days during Christmas vacation, to make up the 46 days of visitation denied by the Rimmers.

Further, no argument was made below that the trial court failed to consider the best interest of the child in issuing this order, nor did the Rimmers present any evidence at the hearing on this issue. “It is well settled that issues presented for the first time on appeal furnish nothing for use to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken.” (Punctuation and footnote omitted.) Pinnacle Properties. V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga.App. 94, 100(2), 735 S.E.2d 166 (2012).

3. Although the Rimmers’ seventh enumeration is that the trial court erred in considering hearsay when granting unsupervised visitation to Tinch, the argument in the brief deals with the legality of attorney fees in a contempt proceeding. Therefore, this enumeration is deemed abandoned. Ct.App. Rule 25(c)(2).

4. In enumerations eight and nine, the Rimmers contend that the trial court erred when it granted an award of attorney fees because the visitation portions of the Consent Order were void and the trial court did not conduct a proper evidentiary hearing. They are considered together.

(a) The enforceability of the Consent Order between the Rimmers and Tinch and Frix has been addressed in Division 1.

(b) The motion for contempt asked for attorney fees, citing OCGA §§ 19–6–2(a)(1) & 9–11–54(d). The order awarding $957 in attorney fees and filing costs, however, is silent as to the basis upon which the award was made.

Further, the evidence was insufficient to support an attorney fee award under any statute. It is well settled that “[a]n award of attorney fees is unauthorized if [a party] failed to prove the actual costs of the attorney and the reasonableness of those costs.” (Punctuation and footnote omitted.) Gray v. King, 270 Ga.App. 855, 858(2)(b), 608 S.E.2d 320 (2004). Here, counsel merely stated what he charged Tinch and Frix, but did not indicate the total number of hours spent on the case or that the fees incurred were reasonable.

Therefore, “the award of attorney fees must be vacated and the case remanded for reconsideration of [the issue below].” (Citation omitted.) Webb v. Watkins, 283 Ga.App. 385, 386(2), 641 S.E.2d 611 (2007). On remand, it will be Tinch and Frix’s burden to show their attorney fees and the reasonableness thereof by introducing evidence of hours, rates, or some other indication of the value of the professional fees actually incurred. Id.

Judgment affirmed in part, vacated in part and case remanded with direction.

BARNES, P.J., concurs.

RAY, J. concurs in the judgment only.

——–

Notes:

1. Providing that a grandparent shall have the right to seek visitation where “there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent[.]” (Emphasis supplied.) See Hudgins v. Harding, 313 Ga.App. 613, 614–615, 722 S.E.2d 355 (2012).

2. Tinch and Frix acknowledge in their brief that they were not entitled to recover filing fees of $207 because none were paid.

 

Aug 8 14

The Curious Double Standard for Criminal Pretrial Actions in Georgia

by merlin

Something which became apparent during the course of research on a pending matter, but which is of significant note (and I am specifically requesting any and all readers that might be able to shed factual light on the justification for this by comment on this site) is the remarkable double-standard that applies in criminal matters concerning aggravation and mitigation of sentences in Georgia.

Section 17-16-5 of the Official Code of Georgia governs the use of an alibi (the “I was someplace else/some other dude done it” defense), and sets down some pretty strict rules for use of an alibi in a criminal case.  A party needs to provide the State with enough biographical information on, and a head start for tracking down ways to disprove (no later than TEN days after Arraignment, upon written demand of alibi info by the State), the witness or witnesses that can establish the alibi.  However, when it comes to the very proof on which the charges depend, the State has a minimum of FIVE days before THE TRIAL ITSELF to provide that proof, according to Section 17-16-4, the statute that governs felony Discovery.

The two statutes are below, so you can see for yourselves:

17-16-4, first.  As you can see, this is a pretty comprehensive Discovery statute, governing everything from pretrial Discovery to presentencing matters:

(a) (1) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders, disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the state or prosecution and that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant, before or after arrest, in response to interrogation by any person then known by the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff if the state intends to use that statement at trial. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant written or oral statement made by the defendant while in custody, whether or not in response to interrogation. Statements of coconspirators that are attributable to the defendant and arguably admissible against the defendant at trial also shall be disclosed under this Code section. Where the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of any similar such statement of any witness who was:

(A) At the time of the statement, so situated as an officer or employee as to have been legally able to bind the defendant in respect to conduct constituting the offense; or

(B) At the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been legally able to bind the defendant in respect to that alleged conduct in which the witness was involved.

(2) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, furnish to the defendant a copy of the defendant’s Georgia Crime Information Center criminal history, if any, as is within the possession, custody, or control of the state or prosecution. Nothing in this Code section shall affect the provisions of Code Section 17-10-2.

(3) (A) Except as provided in subparagraph (B) of this paragraph, the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.

(B) With respect to any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial of any violation of Part 2 of Article 3 of Chapter 12 of Title 16, such evidence shall, no later than ten days prior to trial, or as otherwise ordered by the court, be allowed to be inspected by the defendant but shall not be allowed to be copied.

(4) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the state intends to introduce in evidence in its case-in-chief or in rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the prosecuting attorney shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than ten days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any victim or witness.

(5) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.

(b) (1) The defendant within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the defense’s case-in-chief or rebuttal at the trial.

(2) The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense’s case-in-chief or rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any defendant or witness.

(3) (A) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the presentence hearing.

(B) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all reports of any physical or mental examinations and scientific tests or experiments, including a summary of the basis for the expert opinions rendered in the reports, or copies thereof, if the defendant intends to introduce in evidence in the presentence hearing the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions.

(C) The defendant shall, no later than five days before the trial commences, serve upon the prosecuting attorney a list of witnesses that the defendant intends to call as a witness in the presentence hearing. No later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, the defendant shall produce for the opposing party any statement of such witnesses that is in the possession, custody, or control of the defendants or the defendant’s counsel that relates to the subject matter of the testimony of such witnesses unless such statement is protected from disclosure by the privilege contained in paragraph (5), (6), (7), or (8) of subsection (a) of Code Section 24-5-501.

(c) If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.

(d) Upon a sufficient showing that a discovery required by this article would create a substantial threat of physical or economic harm to a witness, the court may at any time order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court subject to further order of the court and to be made available to the appellate court in the event of an appeal.

(e) Discovery with respect to alibi witnesses shall be as provided for in Code Section 17-16-5.

17-16-5, for comparison:

(a) Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.

(b) The prosecuting attorney shall serve upon the defendant within five days of the defendant’s written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.

(c) If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.

(d) Upon a showing that a disclosure required by this Code section would create a substantial threat of physical or economic harm to a witness, the court may grant an exception to any of the requirements of subsections (a) through (c) of this Code section.

(e) If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney may offer any other evidence regarding alibi.

Aug 1 14

Unemployment Benefits Can Be Denied for Criminal Conduct

by merlin

DISCLAIMER:

I do not take ANY labor law cases.  Ever.  However, I represent a few different corporations, and have to be aware of some of the basic rules, and circumstances have required that I act quickly to evaluate this particular situation.  With that disclaimer in mind, the following represents the position of the Georgia Courts in the existing body of law on disqualifications for unemployment compensation due to voluntary acts:

Section 34-8-194 of the Official Code of Georgia details what circumstances act as disqualifiers for unemployment compensation, listing them in general (the specific circumstances have been fleshed out by the cases that applied these rules):

  • An individual shall be disqualified for benefits:

    (1) For the week or fraction thereof in which the individual has filed an otherwise valid claim for benefits after such individual has left the most recent employer voluntarily without good cause in connection with the individual’s most recent work. Good cause shall be determined by the Commissioner according to the circumstances in the case; provided, however, that leaving an employer to accompany a spouse who has been reassigned from one military assignment to another shall be deemed to be for good cause; provided, however, that the employer’s account shall not be charged for any benefits paid out to the person who leaves to accompany a spouse reassigned from one military assignment to another. To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of good work connected cause for voluntarily leaving such work shall be on the individual. Benefits shall not be denied under this paragraph, however, to an individual for separation from employment pursuant to a labor management contract or agreement or pursuant to an established employer plan, program, policy, layoff, or recall which permits the individual, because of lack of work, to accept a separation from employment;

    (2) (A) For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of just discharge or suspension for cause as set forth shall be on the employer and the presumption shall be with the employee; provided, however, that:

    (i) An individual shall secure employment and show to the satisfaction of the Commissioner that such individual has performed services in bona fide employment and earned insured wages equal to at least 12 times the weekly benefit amount of the claim and has lost that job through no fault on the part of such individual, if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:

    (I) Intentional conduct on the premises of the employer or while on the job which results in a physical assault upon or bodily injury to the employer, fellow employees, customers, patients, bystanders, or the eventual consumer of products; or

    (II) Intentional conduct that results in the employee’s being discharged for, and limited to, the following: theft of property, goods, or money valued at $100.00 or less; and

    (ii) An individual shall secure employment and show to the satisfaction of the Commissioner that he or she has performed services in bona fide employment and earned insured wages equal to at least 16 times the weekly benefit amount of the claim if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:

    (I) Intentional conduct by the employee which results in property loss or damages amounting to $2,000.00 or more; or

    (II) Intentional conduct that results in the employee’s being discharged for, and limited to, the following: theft of property, goods, or money valued at over $100.00, sabotage, or embezzlement.

    (B) An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines:

    (i) The individual made a good faith effort to perform the duties for which hired but was simply unable to do so;

    (ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties;

    (iii) The discharge occurred because of absenteeism and the absences were caused by illness of the claimant or a family member, unless the claimant has without justification failed to notify the employer or the absence for such illness which led to discharge followed a series of absences, the majority of which were attributable to fault on the part of the claimant in direct violation of the employer’s attendance policy and regarding which the claimant has been advised in writing, prior to any of the absences, that unemployment benefits may be denied due to such violations of the employer’s policy on attendance; provided, however, that no waiver of an employee’s rights under the federal Family and Medical Leave Act of 1993, as amended, or any other applicable state or federal law shall be construed under this division;

    (iv) The discharge occurred as a violation of the employer’s rule of which the claimant was not informed by having been made aware thereof by the employer or through common knowledge. Consistency of prior enforcement shall be taken into account as to the reasonableness or existence of the rule and such rule must be lawful and reasonably related to the job environment and job performance; or

    (v) Except for activity requiring disqualification under paragraph (4) of this Code section, the employee was exercising a protected right to protest against wages, hours, working conditions, or job safety under the federal National Labor Relations Act or other laws.

    (C) For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended for violation of the employer’s drug-free workplace policy as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification under this subparagraph, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then become unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of just discharge or suspension for cause as set forth in this subparagraph shall be on the employer and the presumption of eligibility shall be with the employee; provided, however, that in cases where a drug or alcohol test is utilized to prove a violation of the employer’s drug-free workplace policy:

    (i) The employer’s burden of proof of just discharge or suspension shall be presumed met if the individual fails a drug screening test which is required by terms of the employer’s drug-free workplace policy and said policy complies with the provisions of Article 11 of Chapter 9 of this title, other substantially equivalent or more stringent standards established by federal law or regulations, or with rules and regulations prescribed by the Commissioner;

    (ii) The laboratory test results, including but not limited to, documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter, and such evidence shall create a rebuttable presumption that the individual violated the employer’s drug-free workplace policy; provided, however, that any other evidence relating to the issue of eligibility and the provisions of this subparagraph may be received in person or by telecommunications at the hearing; and

    (iii) Laboratory test results submitted by the individual, including but not limited to documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter;

    (3) (A) If, after the claimant has filed an otherwise valid claim for benefits, the claimant has failed without good cause either to apply for available, suitable work when so directed by an employment office or the Commissioner or to accept suitable work when offered to the claimant by any employer. Such disqualification shall continue until he or she has secured subsequent employment for which the individual has earned insured wages equal to at least ten times the weekly benefit amount of the claim and has lost that job through no fault on the part of the individual.

    (B) In determining whether or not any work is suitable for an individual, the Commissioner shall consider the degree of risk involved to his or her health, safety, and morals; his or her physical fitness and prior training; his or her experience and prior earnings; his or her length of unemployment and prospects for securing local work in his or her customary occupation; and the distance of the available work from his or her residence. The length of unemployment shall be given full consideration and, after an adjustment period, the claimant must accept work involving less competence and at a lower remuneration. If a claimant has received ten weeks of benefits during his or her current period of unemployment, no work otherwise suitable shall be considered unsuitable because of prior training, experience, prior earnings, or level of compensation, provided such compensation is equal to or exceeds 66 percent of the claimant’s highest calendar quarter base period earnings; provided, however, that such compensation must be equal to or greater than the minimum wage established by federal or state laws.

    (C) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work:

    (i) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;

    (ii) If the wages, hours, or other conditions of the work offered are less favorable to the individual than those prevailing for similar work in the locality; or

    (iii) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;

    (4) For any week with respect to which the Commissioner finds that his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she is or was last employed. If, in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this paragraph, be deemed to be a separate factory, establishment, or other premises. This paragraph shall not apply if it is shown to the satisfaction of the Commissioner that:

    (A) He or she is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work;

    (B) He or she does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; or

    (C) A lockout has occurred following the expiration of the most recent working agreement without any offer of or refusal to continue that agreement during continued negotiations for a new agreement acceptable to employer and employee.

    When a stoppage of work due to a labor dispute ceases and operations are resumed at the factory, establishment, or other premises at which the employee is or was last employed but the employee has not been restored to such last employment, the employee’s disqualification for benefits under this paragraph shall be deemed to have ceased at such time as the Commissioner shall determine such stoppage of work to have ceased and such operations to have been resumed. Benefits shall not be paid for any week during which the employee is engaged in picketing or is a participant in a picket line at the factory, establishment, or other premises at which the employee is or was last employed even though the stoppage of work shall have ceased and operations have been resumed;

    (5) For any week with respect to which the employee is receiving or has received remuneration in the form of:

    (A) Wages in lieu of notice, terminal leave pay, severance pay, separation pay, or dismissal payments or wages by whatever name, regardless of whether the remuneration is voluntary or required by policy or contract; provided, however, such remuneration shall only affect entitlement if the remuneration for such week exceeds the individual’s weekly benefit amount. Remuneration for accrued but unused annual leave, vacation pay, sick leave, or payments from employer funded supplemental unemployment plans, pension plans, profit-sharing plans, deferred compensation, or stock bonus plans or seniority buyback plans shall not affect entitlement. In the case of lump sum payments or periodic payments which are less than the individual’s weekly wage, such payments shall be prorated by weeks on the basis of the most recent weekly wage of the individual for a standard work week; or

    (B) Compensation for temporary partial or temporary total disability under the workers’ compensation law of any state or under a similar law of the United States;

    (6) For any week with respect to which he or she has received or is seeking unemployment compensation under an unemployment compensation law of another state or of the United States; or

    (7) If while attending a training course as provided in Code Section 34-8-195, he or she voluntarily ceases attending such course without good cause. Such disqualification shall continue pursuant to the provisions of paragraph (1) of this Code section. However, if any individual is separated from training approved under Code Section 34-8-195 due to the individual’s own failure to abide by rules of the training facility, he or she shall be disqualified for benefits under the provisions of paragraph (2) of this Code section.

The applicability of this Code section on incarceration and problems due to legal trouble has been discussed fully in the volume of cases settling the issue.  The case below, Carter v. Caldwell, 151 Ga.App. 687 (Ct. App. 1979), points out the essence of the dispute between an employee and an employer when it comes to this particular cause of job-loss: the voluntary nature of it (see paragraph 2, above):

        Kenneth G. Levin, Atlanta, for appellant.

        Arthur K. Bolton, Atty. Gen., George P. Shingler, Asst. Atty. Gen., for appellee.

       UNDERWOOD, Judge.

        This is a case of first impression in Georgia. The appellant Carter was dismissed from his employment for failure to be present at work. His absence was caused by his incarceration following conviction of a crime which took place during nonworking hours and which was unrelated to his employment. Carter filed for unemployment compensation, but was found disqualified for the benefits by an appeals referee. This decision was affirmed by a board of review and the superior court.

        1. The issue we must decide is whether an employee’s dismissal from a job for failure to be present at work disqualifies him from receiving unemployment compensation under Code § 54-610(b) when the reason for his absence is his incarceration for an offense unrelated to his employment. Code § 54-610(b) provides that “(a)n individual shall be disqualified for benefits . . . for failure to obey orders, rules or instructions or the failure to discharge the duties for which he was employed . . .” This court has held that there must be some fault chargeable to the employee in order to have a valid disqualification under this section. Smith v. Caldwell, 142 Ga.App. 130235 S.E.2d 547 (1977). In Smith, supra, a secretary was dismissed as a result of her lack of proficiency in carrying out her employer’s orders. We held that her inability was no fault of her own and that she should not be disqualified for unemployment compensation. In Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467, 62 S.E.2d 209, 213 (1950) the Supreme Court observed that the intent of the legislature is “. . . to pay unemployment compensation during periods of unemployment to those workers whose unemployment is involuntary and is not the result of their own fault.” Carter’s claim is that his inability to report to work was totally involuntary and not the result of his own fault.

        While it is true in some cases that misconduct totally unrelated to an employee’s work will not be grounds for disqualification for unemployment benefits, 76 Am.Jur.2d 953, Unemployment Compensation § 57, the issue in this case is whether conduct leading to incarceration and the consequent inability to work is a valid basis for dismissal of an employee’s claim for unemployment compensation. The appellant has presented summaries of cases that appear to hold that inability to report to work due to incarceration should not be grounds for disqualification. While this may be the view in some jurisdictions, it is clear that other jurisdictions have taken a different view. See Grimble v. Brown, 247 La. 376171 So.2d 653 (1965). The appellant has presented with considerable persuasion his perception of the correct application of the statutory directives of the unemployment compensation program and the policy imperatives associated with that construction. However, we are not able to share his perception of the intention of the legislature and hold that where, as in the instant case, an employee engages in conduct which leads to his incarceration, and as a result of his incarceration he is dismissed from his employment, the denial to him of unemployment compensation is the correct interpretation of the statutory mandate of Code § 54-610(b).

        2. Enumerations 2 through 4 are without merit and involve essentially the same considerations present in Enumeration 1.

        3. Appellant’s fifth enumeration is that the trial judge on his own volition introduced into the proceeding the nature of the appellant’s criminal offense. It is not clear from the record whether this occurred as contended, but in any event it would be harmless error here since the nature of the offense had no bearing on the decision. It was the appellant’s inability to report for work due to his incarceration which disqualified him for unemployment compensation and not the nature of the offense.

        4. Appellant’s sixth enumeration of error is that the superior court should have considered U. S. Labor Department guidelines concerning unemployment compensation when ruling on the case. It has not been shown that such guidelines are controlling in questions involving state implementation of the unemployment compensation programs and no error appears.

        Judgment affirmed.

        McMURRAY, P. J., and BANKE, J., concur.

 

Jul 30 14

In Georgia, It’s Conspiracy or the Completed Crime

by merlin

Section 16-4-8 of the Official Code of Georgia governs the offense of conspiracy – when more than one person conspire together to commit a criminal act:

A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he could have been subjected if he had been convicted of such crime, or both. A person convicted of the offense of criminal conspiracy to commit a misdemeanor shall be punished as for a misdemeanor. A person convicted of the offense of criminal conspiracy to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than ten years.

The section governs the punishment for a conviction of conspiring to do some criminal act, but what happens when the act itself has been accomplished?  That is governed by the next section, 16-4-8.1:

A person may be convicted of the offense of conspiracy to commit a crime, as defined in Code Section 16-4-8, even if the crime which was the objective of the conspiracy was actually committed or completed in pursuance of the conspiracy, but such person may not be convicted of both conspiracy to commit a crime and the completed crime.

It is important to note that last sentence – “such person may not be convicted of both conspiracy to commit a crime and the completed crime”.  It does not mean the person cannot be charged with entering into a conspiracy to accomplish the (also charged) offense itself.  What it means is only that the person cannot be convicted for both things.  Plainly, if the offense was carried out, and a conviction for the offense occurred, then the offense itself is going to have a dramatically greater punishment, according to the statute’s language, than the conspiracy would have.

In 2006, the Court of Appeals of Georgia decided the case of Garcia v. State, 279 Ga.App. 75, addressing that very issue:

        Sharon L. Hopkins, Lawrenceville, for appellant.

        Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

        ELLINGTON, Judge.

            A Gwinnett County jury found Felix Perez Garcia guilty of the crimes of trafficking in cocaine, OCGA § 16-13-31(a)(1)(C), and giving a false name to law enforcement officers, OCGA § 16-10-25. On appeal, Garcia claims the trial court erred by failing to give his requested charge of conspiracy to traffic in cocaine. We find no error and affirm.

            In this case, evidence showed the following. Garcia and four other men drove from Rochester, New York to Gwinnett County for the purpose of “[r]ob[bing] somebody for some drugs.” On the afternoon of June 13, 2002, three of these men, including Garcia, stole at least two kilograms of cocaine from persons at the Copper Mills Apartments. Two conspirators left the scene of the robbery in a rented Subaru station wagon while Garcia left in a second rented vehicle. Men in a pickup truck pursued the Subaru and forced the vehicle off the road, causing it to overturn, and the two conspirators fled the scene with two kilograms of cocaine stolen from the apartment. Police subsequently discovered a bag containing approximately eight kilograms of cocaine in the debris of the wreck. According to a co-conspirator’s testimony, Garcia had previously informed the conspirators that “he is going to put the drugs in the car.”

            Later that day, Garcia, using a false name, reported that the Subaru had been hijacked. He told police that he had driven the Subaru from Rochester, New York to Gwinnett County to meet an old girlfriend, but he discovered upon arrival that she had moved to Miami. According to Garcia’s statement to police, two men hijacked the Subaru, bound him hand and foot, and deposited him in a wooded area. The police did not believe

Garcia, largely because his neat clothing and the lack of binding marks were not consistent with his story. Police placed Garcia under arrest for suspicion of trafficking in cocaine.

At trial, Garcia requested that the trial court charge conspiracy to trafficking in cocaine as a lesser included offense to trafficking in cocaine. Garcia claims the trial court erred in refusing to give this charge. We disagree.

As a general rule, “a written request to charge a lesser-included offense must be given if there is any evidence that the defendant is guilty of the lesser-included offense.” (Citation omitted.) Riley v. State, 278 Ga. 677, 688(12), 604 S.E.2d 488 (2004). “Although it may be that conspiracy . . . is a lesser included offense in an indictment charging the commission of the crime, where the evidence shows without dispute that the crime charged was actually committed, the omission to charge on conspiracy is not error.” (Citation omitted.)  Gunter v. State, 243 Ga. 651, 660(6), 256 S.E.2d 341 (1979). Accord Watkins v. State, 248 Ga.App. 412, 414-415(4), 546 S.E.2d 363 (2001); Byram v. State, 189 Ga.App. 627, 628(3), 376 S.E.2d 909 (1988).

Here, the evidence was undisputed that members of a conspiracy came into possession of more than 400 grams of cocaine. If the jury concluded that Garcia was a member of that conspiracy, then Garcia was also guilty of the completed crime. See OCGA § 16-2-20. It follows that “the omission to charge on conspiracy [was] not error.” Gunter v. State, 243 Ga. at 660(6), 256 S.E.2d 341.

Garcia argues that OCGA § 16-4-8.11 required the trial court to give the jury the option of convicting Garcia of conspiracy as a lesser included offense to the trafficking charge. We disagree. First, the statute does not address the trial court’s obligation to give requested jury charges. Second, since OCGA § 16-4-8.1 was adopted in 19962 the Supreme Court of Georgia has continued to adhere to the principle that conspiracy need not be charged as a lesser included offense if the evidence is undisputed that the crime charged was completed. See Cummings v. State, 273 Ga. 547, 549(3), 544 S.E.2d 429 (2001) (“[w]hen the crime has in fact been committed, co-conspirators are guilty as parties to the commission of the crime under OCGA § 16-2-20, and [a charge of conspiracy to commit murder as a lesser included offense of malice murder] is properly refused”). Accordingly, we find no error.

        Judgment affirmed.

        JOHNSON, P.J., and MILLER, J., concur.

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Notes:

        A person may be convicted of the offense of conspiracy to commit a crime, as defined in Code Section 16-4-8, even if the crime which was the objective of the conspiracy was actually committed or completed in pursuance of the conspiracy, but such person may not be convicted of both conspiracy to commit a crime and the completed crime.

        OCGA § 16-4-8.1.

  1.  Ga. L.1996, p. 679, § 1.

Jul 22 14

IMPORTANT – Pleas Under the First Offender Act

by merlin

The plain language of Section 42-8-60(a) of the Official Code of Georgia, the “First Offender Act”, reads as follows:

(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.

The statute expressly permits the Court to engage in sentencing BEFORE AN ADJUDICATION OF GUILT.  This where the power of the First Offender Act comes into play.

The case below, State v. Stulb, 296 Ga. App. 510 (Ga. Ct. App. 2009), makes it clear that once a plea is entered, the Act can only be used if the person has no “adjudication of guilt” yet.

Rebecca A. Wright, District Attorney, Madonna M. Little, Assistant District Attorney, Whitmer & Law, George H. Law III, Gainesville, for appellant.

        Richard E. Allen, Augusta, for appellee.

        BERNES, Judge.

        Several years after William Archer Stulb was convicted of statutory rape, the trial court granted Stulb’s motion to rescind his full sentence under OCGA § 42-8-34(g) and then resentenced him as a first offender. The State of Georgia appeals, contending that the trial court lacked jurisdiction to rescind Stulb’s original sentence in its entirety and grant him first offender treatment after he had been adjudicated guilty of statutory rape. We agree. Accordingly, we reverse the trial court’s order rescinding Stulb’s original sentence and vacate the subsequently entered first offender sentence.

        This is the second appearance of this case before us. In September 2005, a Columbia County jury convicted Stulb of statutory rape. At the sentencing hearing, the trial court announced a felony sentence of ten years with one year to be served in confinement and the remainder on probation, with additional conditions, fines, and fees.1 Stulb did not receive first offender treatment. After Stulb began serving his sentence, however, the trial court sua sponte resentenced him to a greater term of confinement. The trial court then entered final judgment on the conviction and the increased sentence.

        On direct appeal, we affirmed Stulb’s conviction but remanded the case with direction that the original sentence be reimposed. See] Stulb v. State,279 Ga.App. 547631 S.E.2d 765 (2006). In July 2006, the trial court entered an order reimposing the original sentence. Again, Stulb was not sentenced as a first offender.

        In February 2008, Stulb moved for the trial court to rescind his sentence in its entirety under OCGA § 42-8-34(g), and the trial court granted the motion. Stulb then requested for the trial court to resentence him under the First Offender Act, OCGA §§ 42-8-60 to 42-8-66.2 The trial court granted the request and resentenced Stulb as a first offender to 345 days in confinement, credit for time served, and 645 days probation, with the probation sentence ending on June 4, 2008, plus a fine. This appeal by the state followed.

        We agree with the state’s contention that the trial court lacked jurisdiction to resentence Stulb as a first offender. The First Offender Act provides in relevant part:

        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.

        (Emphasis supplied.) OCGA § 42-8-60(a). By the plain terms of the statute, “a trial court is only authorized to grant first offender treatment before a defendant has been adjudicated guilty and sentenced.” (Emphasis in original.) Burchette v. State, 274 Ga. App. 873, 874, 619 S.E.2d 323 (2005). See Lewis v. State, 217 Ga.App. 758, 759, 458 S.E.2d 861 (1995). Here, the trial court previously had entered final judgment on the felony statutory rape conviction and had sentenced Stulb accordingly. Having done so, the trial court could not unwind the clock and modify the final judgment of conviction and sentence in order to grant first offender treatment. SeeBurchette, 274 Ga.App. at 874, 619 S.E.2d 323Lewis, 217 Ga.App. at 759, 458 S.E.2d 861.

        Stulb argues, however, that the trial court retained jurisdiction under OCGA § 42-8-34(g) to rescind his prior sentence in its entirety, rendering that sentence a mere nullity. Stulb maintains that once his prior sentence was rescinded, he was in the same position as any defendant who had been convicted but not yet sentenced, and that the trial court was then free to impose any sentence it saw fit, including a first offender sentence. We are unpersuaded.

        OCGA § 42-8-34(g) states:

        The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of the person’s probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, modify or change the probated sentence … at any time during the period of time prescribed for the probated sentence to run.

        We have held that this statutory subsection authorizes a sentencing judge to modify or rescind the probation portion of a defendant’s sentence during the period of time prescribed for the probated sentence to run, but not the underlying judgment of conviction or the confinement portion of the sentence. See Levell v. State, 247 Ga.App. 615, 616-617(1), 544 S.E.2d 523 (2001); State v. James, 211 Ga.App. 149, 150-151(2), 438 S.E.2d 399 (1993). Hence, while the trial court could rescind the probation portion of Stulb’s sentence, the court lacked jurisdiction to rescind the underlying judgment of conviction or the confinement portion of his sentence. The trial court’s attempt to do so in order to impose first offender treatment, therefore, was a mere nullity. See James, 211 Ga.App. at 150-151, 438 S.E.2d 399.

        For the foregoing reasons, the trial court did not have authority to rescind Stulb’s sentence in its entirety and then resentence him under the First Offender Act. We thus reverse the trial court’s order that rescinded Stulb’s full sentence and vacate Stulb’s first offender sentence entered thereafter, with the result that Stulb’s original sentence is rendered in full force and effect.

        Judgment reversed and sentence vacated.

        ANDREWS, P.J., and DOYLE, J., concur.

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Notes:

  1.  Stulb was 18 years old and the female victim was 14 years old at the time of the sexual contact. The current version of the statutory rape statute provides: “If the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor.” OCGA § 16-6-3(c) (2008). But this misdemeanor exception was not added until 2006, after Stulb’s conviction in the present case. See OCGA § 16-6-3 (2005); Ga. L. 2006, p. 379, § 10.
  2.  Stulb sought to be resentenced as a first offender because of Georgia’s sexual offender registration law. Under that law, a person must register as a sexual offender if, inter alia, he is convicted on or after July 1, 1996 of “a criminal offense against a victim who is a minor.” OCGA § 42-1-12(e)(1). For convictions after June 30, 2001, “criminal offense against a victim who is a minor” includes any criminal offense under Title 16 of the Georgia Code that consists of “[c]riminal sexual conduct toward a minor.” OCGA § 42-1-12(a)(9)(B)(iii). Statutory rape falls within the category of criminal sexual conduct toward a minor. See Planas v. State, 296 Ga.App. 51, 53(2), 673 S.E.2d 566 (2009). And while “conduct which is punished as for a misdemeanor … shall not be considered a criminal offense against a victim who is a minor,” OCGA § 42-1-12(a)(9)(C), Stulb was convicted of felony statutory rape based on the version of the statutory rape statute then in effect. See OCGA § 16-6-3 (2005). Similarly situated persons convicted of statutory rape today would receive a misdemeanor sentence and would not have to register as a sex offender. See OCGA § 16-6-3(c) (2008).

        Although Stulb had to register as a sexual offender, the grant of first offender treatment would affect how long he would be subject to the registration requirements. See OCGA § 42-1-12(a)(8) (“A defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall be subject to the registration requirements of this Code section for the period of time prior to the defendant’s discharge after completion of his or her sentence or upon the defendant being adjudicated guilty. Unless otherwise required by federal law, a defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall not be subject to the registration requirements of this Code section upon the defendant’s discharge.”).

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