Opinion
No. A11A0879.
2011-11-16
KAYLOR v. The STATE.
Robert Ray McNeill, Sara Dykes Sibley, Brett Michael Willis, H. Bradford Morris, Jr., Gainesville, for appellant. Lee Darragh, Dist. Atty., John G. Wilbanks, Jr., Asst. Dist. Atty., for appellee.
Robert Ray McNeill, Sara Dykes Sibley, Brett Michael Willis, H. Bradford Morris, Jr., Gainesville, for appellant. Lee Darragh, Dist. Atty., John G. Wilbanks, Jr., Asst. Dist. Atty., for appellee.
MILLER, Presiding Judge.
In 2002, William Charles Kaylor pled guilty to two counts of child molestation (OCGA § 16–6–4(a)(1)) and was sentenced under the First Offender Act (OCGA § 42–8–60) to fifteen years to serve four years in confinement and the balance on probation. In 2010, after Kaylor was released from confinement and while on probation, the trial court revoked his probation, adjudicated him guilty of the offenses, and sentenced him to twenty years to serve fifteen years in confinement, followed by five years' probation, as to one count and a consecutive probation term of twenty years as to the second count. On appeal, Kaylor contends that the trial court's sentence was improper since it lacked the authority to enter an adjudication of guilt because he was automatically discharged under the First Offender Act when he was released from confinement. Kaylor also contends that the trial court lacked the authority to increase the sentence originally imposed upon him in 2002. He also contends that the court erred by failing to give him credit for time served and, therefore, his sentence exceeded the statutory maximum. Finding no error, we affirm.
1. Kaylor argues that, when he was initially sentenced under the First Offender Act, he could be sentenced only to confinement or probation, but not both, and that because he was sentenced to confinement, he was automatically discharged under the First Offender Act upon his release. Kaylor further asserts that, once he was discharged, he could not be subsequently adjudicated guilty and resentenced. We disagree.
The First Offender Act provides that, under certain circumstances, “the court may, without entering a judgment of guilt and with the consent of the defendant: (1) [d]efer further proceeding and place the defendant on probation as provided by law; or (2) [s]entence the defendant to a term of confinement as provided by law.” OCGA § 42–8–60(a).
Here, Kaylor was initially sentenced under the First Offender Act to fifteen years confinement, with the first four years to be served in confinement and the balance to be served on probation. Kaylor's claim that the “explicit language of OCGA § 42–8–60(a) allows for either probation or confinement, but not both, has already been decided adversely to [him].” (Punctuation and footnote omitted.) Mason v. State, 310 Ga.App. 118, 119(1), 712 S.E.2d 76 (2011) (holding that the trial court did not violate the First Offender Act by imposing a 15–year probated sentence, which included, as a special condition, confinement in a detention center for a designated time). This is because the First Offender Act incorporates the probation provisions of OCGA § 42–8–34 (c), which authorizes the trial court to “stay and suspend the execution of the sentence or any portion thereof or may place him on probation[.]” See Tallant v. State, 187 Ga.App. 138, 139, 369 S.E.2d 789 (1988). Moreover, the trial court has authority to suspend or probate all or any part of the entire sentence. OCGA § 17–10–1(a)(1); see Penaherrera v. State, 211 Ga.App. 162, 163(1), 438 S.E.2d 661 (1993).
There is also no merit to Kaylor's contention that he was automatically discharged under the First Offender Act when he was released from confinement. OCGA § 42–8–62(a) provides that
[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without Court adjudication of guilt ... and the defendant shall not be considered to have a criminal conviction. A defendant is automatically discharged upon the successful completion of the terms of his sentence. See, e.g., Humphreys v. State, 287 Ga. 63, 70–71(4), 694 S.E.2d 316 (2010); Ailara v. State, 311 Ga.App. 862, 864, 717 S.E.2d 498 (2011).
In this case, however, Kaylor did not complete his sentence because he had not finished his term of probation. See, e.g., Jones v. State, 154 Ga.App. 581, 583(3), n. 1, 269 S.E.2d 77 (1980) (stating that probation is a form of service of a sentence); Pitts v. State, 206 Ga.App. 635, 637(3), 426 S.E.2d 257 (1992) (stating that a defendant is on probation when he is sentenced to other forms of confinement that do not involve incarceration). Where, as here, a defendant has been sentenced to probation, the trial court retains jurisdiction throughout the period of the probation, and it may revoke his first offender status, enter an adjudication of guilt, and resentence the defendant on the underlying offense based on his violations of probation. OCGA § 42–8–60(b); Ailara, supra, 311 Ga.App. at 862, 717 S.E.2d 498; see also OCGA §§ 42–8–34(g) (“The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of the person's probated sentence.”); 17–10–1(a)(5)(A) (same). Moreover, the trial court is “empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or ... modify or change the probated sentence....” OCGA § 42–8–34(g). Because Kaylor was still serving his probated sentence, the trial court had the authority to revoke his first offender status and enter an adjudication of guilt for his violations of probation. OCGA §§ 42–8–60(b); 42–8–34(g); Ailara, supra, 311 Ga.App. at 862, 717 S.E.2d 498.
2. Kaylor argues that the trial court lacked the authority to increase the sentence imposed in 2002 because he was sentenced to confinement pursuant to OCGA § 42–8–60(a)(2). We disagree.
Because Kaylor was serving the probationary period of his sentence, he was subject to OCGA § 42–8–60(b). Roland v. Meadows, 273 Ga. 857, 858(1), 548 S.E.2d 289 (2001). The Court in Roland found that “[w]hen a first offender probationer violates the terms of his probation and the trial court enters an adjudication of guilt, the court may impose any sentence permitted by law for the offense the probationer has been found guilty of committing.” Id. (citing OCGA § 42–8–60(b)). A trial court is authorized to increase the first offender sentence provided that (1) the accused was informed of that eventuality at the time the initial sentence was pronounced and (2) any time served prior to an adjudication of guilt must be credited to any new sentence. Id. at 859(1), 548 S.E.2d 289; Grinstead v. State, 269 Ga.App. 820, 823(2), 605 S.E.2d 417 (2004).
Here, Kaylor was informed at the plea hearing that if he violated the conditions of his probation and the court adjudicated him guilty of the two child molestation offenses, he could be resentenced to a maximum total of forty years—twenty years per count. OCGA § 16–6–4(b)(1) (providing that the maximum sentence for a first offense of child molestation is 20 years). The trial court's written sentencing form expressly provided that
upon violation of the terms of probation, the Court may enter an adjudication of guilt and proceed to sentence defendant to the maximum sentence provided by law. (Emphasis supplied.) At the resentencing hearing, the trial court told Kaylor that he was entitled, as a matter of law, to receive credit for the time served on his first offender sentence, and that the Department of Corrections controlled that calculation. On the resentencing forms, the court included the abbreviation “CTS,” which meant credit for time served when construed consistently with the trial court's oral pronouncement of the sentence. Although Kaylor argues that the resentencing form also contained the phrase “above and beyond,” which has been disapproved of in some contexts,
ELLINGTON and DOYLE, JJ., concur.
1. Roland, supra, 273 Ga. at 859(2), 548 S.E.2d 289.