☢ test - Í

ed.). (Question arises because petition predates the procedure now required under the Antiterrorism and Effective Death Penalty Act of 1996.) Questions, without deciding, whether habeas court’s procedure for entering order deprived petitioner/defendant of a “full, fair and adequate” factfinding procedure, hearing and proceeding. Habeas court here called State’s attorneys ex parte and asked them to prepare an order denying the state habeas petition, without offering a similar opportunity to petitioner, and signed the order prepared by State’s attorneys without changes and with no notice or opportunity for petitioner to be heard or respond. In its findings of fact, the order references statements by a witness “‘who did not testify’ or participate in the proceedings.” “[W]hile the State Supreme Court recognized that we have ‘“criticized”’ such a practice, it affirmed the judgment,” quoting Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “Although we have stated that a court's ‘verbatim adoption of findings of fact prepared by prevailing parties’ should be treated as findings of the court, we have also criticized that practice. Anderson, 470 U.S., at 572, 105 S.Ct. 1504.” McCart v. State, 289 Ga.App. 830, 658 S.E.2d 465 (February 29, 2008). Whole court disapproves Garrett v. State, 175 Ga.App. 400, (333 S.E.2d 432) (1985) and its progeny, holds that written findings of fact are no longer required when court imposes victim restitution as part of sentence. Court finds that the reasoning underlying Garrett has been superseded “by the ‘Crime Victims Restitution Act of 2005,’ which became effective on July 1 of that year. Ga. L.2005, p. 88, §§ 1, 8; OCGA § 17-14-1 et seq.” “[T]he legislature deleted the written finding requirement from OCGA § 17-14-8 in the 2005 Act.” Hearing still required, however. “In the new act, the legislature specified for the first time which party has the burden of proving each of the economic factors, and it also provided that restitution shall be determined based on the preponderance of the evidence: ‘Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the state. The burden of demonstrating the financial resources of the offender or person being ordered to pay restitution and the financial needs of his or her dependents shall be on the offender or person being ordered to pay restitution. The burden of demonstrating such other matters as the ordering authority deems appropriate shall be upon the party designated by the ordering authority as justice requires.’ OCGA § 17-14-7(b).” Accord, In re: E.W., 290 Ga.App. 95, 658 S.E.2d 854 (March 6, 2008). But see contra, Adams v. State , 291 Ga.App. 681, 662 S.E.2d 782 (May 23, 2008) (Victim restitution award reversed, remanded for entry of findings of fact pursuant to OCGA § 17-14-10, citing Nobles v. State , 253 Ga.App. 814, 560 S.E.2d 724 (2002).). Wilkinson v. State, 283 Ga.App. 213, 641 S.E.2d 189 (December 20, 2006). “Wilkinson contends that the trial court erred in ‘changing its verdict after the verdict had been published.’ Initially, the judge found that Wilkinson violated the drug contract by ‘liv[ing] in a house that she knew had drugs in it.’ After Wilkinson’s attorney argued that termination on this basis violated due process as the petition was based upon the allegation that Wilkinson possessed drugs, the Court found that the marijuana in the lingerie drawer belonged to Wilkinson. According to Wilkinson, this constituted an improper alteration of a verdict. We disagree. … [W]e are not persuaded that the trial court’s oral finding of fact is tantamount to a verdict. Although a trial court’s ruling in a bench trial is analogous to a verdict, it is not, in fact, a verdict. See Godinger Silver Art Co., v. Olde Atlanta Marketing, Inc., 269 Ga.App. 386, 387 (604 S.E.2d 212) (2004); Zhou v. LaGrange Academy, Inc., 266 Ga.App. 445, 449(1) (597 S.E.2d 522) (2004); see also Fluellen v. State, 264 Ga.App. 19, 22 n. 1 (589 S.E.2d 847) (2003) (no verdict in bench trial). Under these circumstances, it is impossible for the trial court to have improperly altered a verdict. See OCGA § 9-12-7 (‘A verdict may be amended in mere matter of form after the jury has dispersed. However, after a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance either by what the jurors say they intended to find or otherwise.’).” EE. FIRST APPEARANCE HEARING See also subheading PRELIMINARY HEARING, below Capestany v. State, 289 Ga.App. 47, 656 S.E.2d 196 (December 19, 2007). 1. Waiver form, stating “I hereby waive my right to a first appearance hearing,” was ineffective to waive defendants’ right to first appearance hearing absent other evidence that waiver was knowing and voluntary. Defendants were charged with manufacturing marijuana and conspiracy to traffic marijuana. “As the Attorney General of Georgia cogently summarized in an opinion on this issue: ‘It is axiomatic that courts indulge every reasonable presumption against waiver of constitutional or statutory rights. Of course, a waiver is the intentional relinquishment or abandonment of a known right or privilege. Any waiver, therefore, to be effective, must be made knowingly and voluntarily. The determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ (Citations and punctuation omitted.) 1988 Ga. Op. Atty. Gen. 112 (No. U88-14). In this case, the ‘First Appearance Hearing Waiver’ form each [defendant] executed contains the statements that the defendant was advised that he or she had been charged with the offenses listed, that he or she was advised that bail had been denied, that his or her court date was ‘to be notified,’ and that he or she had received an application for appointment