☢ test - Í

Gibson v. State, 319 Ga.App. 627, 737 S.E.2d 728 (January 31, 2013). Following guilty pleas to various theft counts, trial court violated defendant’s right to counsel by refusing to allow counsel to participate in restitution hearing due to defendant’s absence. Despite defendant’s failure to attend, “ a separate hearing to determine the amount of restitution to be made part of a defendant's sentence is a critical stage of proceedings. In some cases an order for restitution is merely a pro forma, ministerial act not requiring the exercise of the court's discretion, and thus is not a critical stage of the proceedings. See Robertson [ v. State, 280 Ga. 885, 886 (635 S.E.2d 138) (2006)]; Golden [ v. Newsome, 755 F.2d 1478, 1484, n.9 (11 th Cir., 1985)]. But here, the trial court took evidence and exercised its discretion at a separate hearing to set the amount of restitution. Gibson has enumerated specific issues with regard to the amount of restitution which his counsel was prevented from asserting on his behalf. The trial court's action in determining the amount of restitution was part of Gibson's sentencing and was not ‘purely ministerial,’ and the hearing was thus a critical stage of proceedings at which Gibson was entitled to representation by counsel.” “Prohibiting counsel from cross-examining the witness and from making argument prevents any meaningful challenge to the State's case, and in such circumstances the mere presence of counsel does not amount to representation.” Ezebuiro v. State, 308 Ga.App. 282, 707 S.E.2d 182 (March 8, 2011). Conviction for robbery by intimidation affirmed; trial court properly ordered victim restitution as condition of probation. “When a dispute exists about the appropriate amount of restitution, OCGA § 17-14-7(b) calls for a restitution hearing: ‘If the parties have not agreed on the amount of restitution prior to sentencing, the ordering authority shall set a date for a hearing to determine restitution. 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 [S]tate. The burden of demonstrating the financial resources of the offender ... and the financial needs of his or her dependents shall be on the offender....’ OCGA § 17-14-7(b). Here, the trial court took up the issue of restitution as a part of its consideration of a proper sentence, immediately following the return of the guilty verdict. Ezebuiro was allowed to offer argument on the issue of restitution, and she did not object to the trial court proceeding to decide the issue of restitution at that time. Nor did she ask for a continuance, ask that a restitution hearing be set for a later date, or state that she had evidence to present on the question of restitution. For these reasons, she has waived any error in the decision of the trial court to decide the question of restitution as a part of the sentencing hearing, rather than in a separate and distinct hearing.” Evidence at trial was sufficient to support amount of restitution. “See Ingram v. State, 262 Ga.App. 304, 308(4)(c) (585 S.E.2d 211) (2003) (‘In determining what sentence to impose upon a defendant, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial.’) (emphasis and citation omitted).” McCart v. State, 289 Ga.App. 830, 658 S.E.2d 465 (February 29, 2008). Nolo plea to theft by receiving truck. 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. (March 6, 2008), above; In re: W.J.F ., 302 Ga.App. 361, 691 S.E.2d 271 (February 15, 2010) (restitution determined by preponderance of the evidence); Mayfield v. State , 307 Ga.App. 630, 705 S.E.2d 717 (January 26, 2011) (written findings no longer required for restitution order); Ezebuiro (March 8, 2011), above ; Coile v. State , 311 Ga.App. 537, 716 S.E.2d 527 (August 4, 2011); Galimore v. State , 321 Ga.App. 886, 743 S.E.2d 545 (May 22, 2013). Tindol v. State, 284 Ga.App. 45, 643 S.E.2d 329 (March 7, 2007). Convicted of motor vehicle theft, defendant could be ordered to pay restitution for the lost contents of the truck, even though they were owned by someone other than the truck owner. Trial court did not abuse its discretion in setting amount of restitution. “Pursuant to OCGA § 17-14-10(a), ‘ In determining the nature and amount of restitution, the ordering authority shall consider: (1) The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly