☢ test - Í
trial court. “Appellant had the opportunity to argue for or against any condition of probation at the presentence hearing, including after the court told him that it would impose “sex offender conditions” as part of the sentence. And after the Final Disposition and Addendum provided Appellant with notice of the specific conditions the court had decided to impose, he had the opportunity to argue the merits of those conditions at the motion for new trial hearing and to challenge their legality in this appeal.” “It may violate due process for a court to revoke a defendant's probation for violating a special condition of probation of which the defendant never had notice. See Harp v. State, 169 Ga.App. 670, 670–671 (314 S.E.2d 686) (1984) (‘“[T]o expect a probationer to abide by terms and conditions of which he has no knowledge would be an unconstitutional deprivation of due process.”’ (citations omitted)). [fn: We note that a defendant who is unhappy when notified of a new or modified special condition of probation has the opportunity to apply to the court to modify or remove the condition under OCGA § 42–8–34(g). See Dean v. Whalen, 234 Ga. 182, 183 (215 S.E.2d 7) (1975), overruled in part on other grounds by Terry v. Hamrick, 284 Ga. 24, 25 (663 S.E.2d 256) (2008). ] It does not follow, however, that it violates due process to impose a special condition of probation unless the court first orally reads it to the defendant at a hearing. See id. at 670–671 (finding notice sufficient where the sentence required compliance with the rules of a diversion center and the defendant was advised of the specific rules when he later arrived at the diversion center). Appellant has pointed to no authority for this proposition, and we think it unsound.” Hillis v. State, 303 Ga.App. 201, 692 S.E.2d 793 (March 26, 2010). Trial court properly denied defendant’s motion to modify his sentence. Defendant “pled guilty to three counts of child molestation and was given concurrent sentences of twenty years probation on condition that he serve three years in a Department of Corrections (the ‘Department’) detention center.” The Department then transferred defendant to a state prison to better care for his medical needs. “Hillis contends that the trial court erred in denying his motion to modify sentence because his reassignment from Southeastern to Ware State Prison constituted an increase in his sentence,” however, “OCGA § 42-8-35.4 authorizes the trial court to sentence a defendant such as Hillis to a program of confinement in a probation detention center and expressly permits the Department to exercise its discretion and transfer a probationer ‘to other facilities in order to provide needed physical and mental health care or for other reasons essential to the care and supervision of [that] probationer or as necessary for the effective administration and management of its facilities.’” “Because Hillis's sole complaint goes to the Department's decision to transfer him under OCGA § 42-8-35.4(c), his claim is cognizable only in a mandamus action against the Commissioner of the Department of Corrections or in a petition for habeas corpus. See, e.g., Maldonado v. State, 260 Ga.App. 580, 581, 580 S.E.2d 330 (2003) (calculation of credit for time served is computed by the Department of Corrections and does not involve the trial court). It follows that the trial court did not err in denying Hillis's motion to modify his sentence.” Wright v. State, 302 Ga.App. 136, 690 S.E.2d 259 (January 26, 2010). Trial court erred by dismissing defendant’s motion to modify restitution order rather than addressing its merits. “Although it did not say so explicitly, the trial court's order dismissing Wright's motion implied that it was untimely – i.e, that a motion seeking modification of the restitution order could not be made until Wright was released on probation and paying restitution. … [T]his Court has previously held that ‘[t]he law does not require that corresponding prison terms or probated sentences expire before restitution orders may be appealed.’ The Limited, Inc. v. Learning Childbirth Center, 255 Ga.App. 688, 690(1) (566 S.E.2d 411) (2002). Logically, therefore, the law does not require the expiration of a defendant's prison term or the actual commencement of restitution payments before a defendant can move for modification of a restitution order. See OCGA § 17-14-12 (‘[t]he ordering authority shall retain jurisdiction to modify a restitution order at any time before the expiration of the relief ordered’) (emphasis supplied).” Tyson v. State, 301 Ga.App. 295, 687 S.E.2d 284 (November 23, 2009). No improper increase of defendant’s burglary sentence where trial court amended sentence to banish defendant from victims’ neighborhood. “[T]he Georgia Legislature has expressly authorized a trial court ‘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.’ OCGA § 42-8-34(g); Taylor v. State, 181 Ga.App. 199(1) (351 S.E.2d 723) (1986) (‘Although a trial court's authority to reconsider, vacate or modify a sentence ends with the conclusion of the term of court in which the sentence was entered, under O.C.G.A. § 42-8-34(g), a sentencing judge is empowered to modify or change a probated sentence at any time during the term of probation.’) (citation omitted). See also Edwards v. State, 216 Ga.App. 740(1) (456 S.E.2d 213) (1995). Tyson's assertion that the statutory authority set forth in OCGA § 42-8-34(g) permits the modification of a probated sentence only after the terms of probation have been violated contravenes both the plain language of the statute as well as precedent from our appellate courts. See id. It follows that the trial court retained jurisdiction to modify the terms of Tyson's probation.”
Made with FlippingBook Ebook Creator