author: Eldridge, Judge. McMurray, Presiding Judge,

text:
    A98A0243.
    LEVERETT et al. v. JASPER COUNTY BOARD OF TAX ASSESSORS.
    (504 SE2d 559)
   Eldridge, Judge.

The trial court in this bench trial committed legal error in entering a judgment for the Jasper County Board of Tax Assessors (“Assessors”) for two reasons that caused the assessments to lack uniformity: (1) in failing to follow the mandate of OCGA § 48-5-2 (3) (B) (ii) and (iv) “[e]xisting use of [the] property” and “[a]ny other factors deemed pertinent in arriving at fair market value”; and (2) in failing to exempt from taxation standing timber under the uniformity mandate of OCGA §§ 48-5-7.1 (a) (1) and 48-5-7.5 as set forth in Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983 (Ga. L. 1990, pp. 2437, 2438, § 2), “standing timber shall be assessed only once, and such assessment shall be made following its harvest or sale and on the basis of its fair market value at the time of harvest or sale.” These errors resulted from following the erroneous appraisal methods used by the Assessors in which growing, but not yet marketable, timber is treated as adding no value to the land and in which stump land and scrub timberland are treated as having substantially the same value as cleared cultivatable land, pasture land, or growing timberland.

1. The Assessors failed to follow the mandate of OCGA § 48-5-2 (3) (B) (ii) and (iv) when they refused to consider “[e]xisting use of the property” both as to the comparables and as to the subject property. This made their method of arriving at evidence of comparable value an error of law. Inland Container Corp. v. Paulding County Bd. of Tax Assessors, 220 Ga. App. 878 (470 SE2d 702) (1996). “Under that statute, the tax assessor must consider, inter alia, the existing use of property and ‘any other factors deemed pertinent in arriving at fair market value.’ OCGA § 48-5-2 (3) (B) (ii) and (iv).” Id. at 879 (1). Thus, the trial court, in relying upon a valuation conducted in violation of OCGA § 48-5-2 (3) (B) (ii) and (iv), committed a plain legal error in thus ruling for the Assessors and against the taxpayers, Cason and Leverett.

Further, such failure to follow statutory mandate is reviewed by “the customary ‘plain error’ standard of appellate review.” Harper v. Landers, 180 Ga. App. 154, 157 (348 SE2d 698) (1986). This is not an analysis under the “any evidence” standard, which deals with errors of law based upon the factual predicate. Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834, 835 (3) (350 SE2d 790) (1986). The recitation of the evidence in the record is only to show how the refusal to obey the statutory mandate led the Assessors and the trial court into reversible legal error.

(a) The General Assembly in 1991 exempted standing timber, both growing and marketable, from ad valorem taxation until the standing timber is sold unharvested or after harvest, whichever first occurs. See Ga. L. 1991, pp. 1903, 1907, 1919-1924, §§ 2, 6; OCGA §§ 48-5-7 (b); 48-5-7.1 (a) (1); 48-5-7.5 (unamended). Such Act was passed under the uniformity requirement of Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983 that permits only one assessment of standing timber, either on sale or harvest.

This annual tax exemption caused a major problem for Jasper County because $20,000,000 of standing timber, representing 51,000 acres of timberland, suddenly was removed from the county tax digest. The Jasper County Board of Tax Assessors (“Assessors”) was in the middle of a reappraisal of the timberland and suddenly had to change the method of their appraisals of timberland. Both appellants’ tracts were timberland.

Under the statute, the Assessors could no longer value timber on the land as part of the fair market value of the land for assessment purposes. Therefore, they made the decision to ignore and treat growing timber of less than six inches in diameter under the assumption that it had zero value as nonmerchantable. They assumed that merchantable timber is “[tjimber that you can sell on the market if there’s a market for it.” They assumed that the minimum size pine tree to qualify as pulpwood would be a tree with a six-inch diameter or greater. They made another assumption that all rural land, i.e., cleared land, stump land, and non-merchantable timberland, was of comparable value except where there is “merchantable timberland.” Stump land is land where the trees have been harvested, and the stumps, brush, and debris remain on the land.

However, the Chief Assessor admitted in judicio that cleared land and stump land had a substantial difference in value, because it cost approximately $400 per acre to clear the land, i.e., grub out the stumps, clear the land, and burn the debris. Therefore, stump land versus cleared land, i.e., pasture, agriculture fields, and even cleared and replanted pine land, have a substantially different value based upon cost to improve alone; thus, improved land has a higher acreage fair market value which reflects the cost of clearing and replanting pines or of fencing.

Thus, under the Assessors’ methodology, previously harvested timberland that had been replanted and contained replanted standing timber less than six inches in diameter was treated as having no value added to the land price because the timber is non-merchantable in that tax year, although the timber would have value upon maturity. The record contained expert witness testimony which demonstrated that clearing and replanting pines can cost up to $400 per acre. If the land reassessed had standing timber, then the Assessors sought to determine the stump value of the land under the standing timber without calculating the value of the timber.

The Assessors decided that the way to determine the value of timberland, without determining the value of the standing timber and subtracting such value from the overall value of the timberland, was to determine the value of rural land alone without regard to timber. This would save them labor, even though the pre-1992 reappraisal provided the data for such calculations as part of the Assessors’ records. Further, in the individual property reappraisals they made no adjustment for timber on the land to prevent taxing the timber. In fact, the Assessors ignored the value of standing timber on the land. However, using such comparable sales, the Assessors also made no adjustment to fair market value for the comparable sales or tracts reassessed for standing timber, i.e., growing or merchantable. On all of the comparable sales the tax records indicate that there was some timber on the land, but the timber was treated as having no value. Therefore, the timber value was reflected in the price of the land, because the value of the timber alone was not removed.

Had the Assessors calculated the value of the growing timber, i.e., seedling to pre-marketable timber, for each comparable tract sold, subtracted out such growing timber value, and then calculated the sales ratio from the remaining values, such method could then be used as a comparable for stump land to determine the fair market value of the land with timber being reassessed without calculating the value of the timber. In short, had the Assessors, in arriving at their 19 comparables for the sales ratio, accounted for the value that growing timber added to the land and subtracted out such value to arrive at the fair market value for the stump land alone, then those 19 calculations of growing timber value subtracted out of the com-parables would allow them to have a sales ratio for stump land that would allow them to ignore the standing timber on each reassessment, because the fair market value of the comparables thus determined would reflect only the value of stump land and not have land and growing timber mixed together to form the fair market value.

(b) In the initial nineteen large acreage tracts the Assessors had as part of the sales ratio and as having no merchantable timber to form the comparables the following: seventeen had been partially cut over to form stump land or had some scrub timber; eight had significant natural regeneration of pines; eight had well-stocked, natural regeneration of pines; one had pine trees less than twenty feet tall and four inches in diameter; two had pines taller than twenty feet and more than four inches in diameter; and the two Greer tracts, upon belated visual inspection, had merchantable standing timber. Of the comparables, eleven were sales of less than fifty acres, and only seven were sales of one hundred acres or more. All of the com-parables were classified as primarily woodland with no merchantable standing timber, although two were later determined to have significant merchantable timber. While none was classified as being cultivated open land, seven had some pasture land between three and 25.82 acres, with the remaining acreage primarily woodland; however, one one hundred six-acre parcel had sixty-eight acres of pasture. Two had ponds: one was an eight-acre pond, and the other was a one-acre pond.

The flaw in the methodology used by the Assessors in relation to the property described above is that the Assessors ignored the mandate of OCGA § 48-5-2 (3) (B) (ii) and (iv) requiring the consideration of the “[e]xisting use of property” and “[a]ny other factors deemed pertinent in arriving at fair market value,” i.e., OCGA § 48-5-7.4 (a) (1) and (2). They ignored the existing use of the comparable sales of woodland, as well as the appellants’ timberland, by ascribing no value to the growing trees. They recognized that the value of mature trees influenced the value of the land; however, they refused to recognize that stump land had a different value from pasture with fencing or fields, because of land preparation and clearing costs.

In their tax records, the Assessors already had set up subcategories of woodland with less than merchantable timber for valuation: (1) stump land or scrub woods; (2) significant natural regeneration of pines; (3) well-stocked, natural pine regeneration; (4) planted pines with trees less than six feet in height; (5) planted pines with trees less than twenty feet in height and diameter less than four inches; and (6) planted pines with trees over twenty feet in height and over four inches in diameter. Each such category would have a different per-acre value effect on the fair market value of the land. However, the Assessors did nothing to factor such different values out of the fair market value per acre of each comparable, so that such value of the growing timber would not be part of the assessed value and taxed. Instead, the Assessors engaged in the fiction that such different values for growing timber had no effect on the fair market value of the land used as comparables to obtain the value of land alone. Treating the six categories of woodland and cleared land as having substantially the same values violated uniformity of treatment of Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983, because the values per acre differed between the woodland and the preparation costs of cleared and improved land. While defining merchantable timber as pines with a diameter of less than six inches, they removed the two Greer tracts from the sales ratio study as comparables after the tax reassessments had been made and mailed, because the trees were greater than four inches but less than six inches in diameter and had a merchantable value. The Assessors determined that the error of inclusion of the Greer tracts, in their opinion, would not distort the sales ratio and invalidate the reassessments already made before their error was discovered, although the tracts did contain marketable timber that was exempt; they had not inspected the Greer tracts and assumed that this was stump land, because that was the only land the grantor normally sold.

(c) “Taxation of all kinds of property of the same class must be uniform and by the same standard of valuation, equally with other taxable property of the same class. [Cits.]” Champion Papers v. Williams, 221 Ga. 345, 346 (144 SE2d 514) (1965); see Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983. “The [trial] court erred, however, in approving a valuation which tilted market value in favor of an assumed ‘highest and best use’ to appear from future speculation and development, rather than first determining the criteria for zoning, existing use, and deed restrictions, if any, at which time other pertinent factors may be considered. Chilivis v. Backus, 236 Ga. 88 [(222 SE2d 371) (1976)], was written before the Legislature substituted ‘fair market value’ for ‘cash price’ in [OCGA § 48-5-2 (3)]; the specific criteria were, however, a part of the statute at that time and the court held that “highest and best use’ is a factor only if it would reflect the amount that would be realized from a cash sale of the property; that valuation will not be confined to actual use alone, and that all criteria added by the General Assembly (see Ga. L. 1975, p. 96) are to be considered.” Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557, 559 (271 SE2d 691) (1980); see also Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 (260 SE2d 313) (1979); Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 (318 SE2d 643) (1984); Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499, 501 (3) (295 SE2d 170) (1982). “Under [OCGA § 48-5-2], the tax assessor must consider, inter alia, the existing use of property and ‘any other factors deemed pertinent in arriving at fair market value.’ OCGA § 48-5-2 (3) (B) (ii) and (iv).” Inland Container Corp. v. Paulding County Bd. of Tax Assessors, supra at 879 (1); see also Brian Realty Corp. v. DeKalb County, 229 Ga. App. 185 (493 SE2d 595) (1997). While comparable land sales used to determine fair market value do not have to be identical to the subject property, such sales must be sufficiently similar to the subject property to be fairly said to have some rational and probative comparability other than mere geographic location. See Hawkins v. Grady County Bd. of Tax Assessors, supra; see also Inland Container Corp. v. Paulding County Bd. of Tax Assessors, supra at 881.

“ ‘[E]xisting use’ must be employed as a ‘yardstick’ with which to measure fair market value.” Inland Container Corp. v. Paulding County Bd. of Tax Assessors, supra at 879 (1). Accord Dotson v. Henry County Bd. of Tax Assessors, supra at 559. The Assessors rejected consideration of “existing use” not only in the sales ratio studies to develop comparables, but also in the assessment of the subject tracts, by ascribing no value to growing timber in different stages of maturity of agricultural/forestry use. The “evidence [demanded] a finding that the assessors ‘did not consider use of the property in question or the property of all others similarly situated.’ Ayers v. Douglas County Bd. of Tax Assessors, 162 Ga. App. 224, 225 (2), 226 (291 SE2d 84) (1982).” Inland Container Corp. v. Paulding County Bd. of Tax Assessors, supra at 881.

Further, in this case, the Assessors did not consider present use, either in developing the comparables or in reassessing the tracts, because standing timber or timberland was either removed or treated as non-merchantable, which is to disregard present use for forest agricultural purposes. Thus, the method and the comparables lack uniformity. Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983; Inland Container Corp. v. Paulding County Bd. of Tax Assessors, supra at 879-880; Hawkins v. Grady County Bd. of Tax Assessors, supra at 835; Stoddard v. Bd. of Tax Assessors of Grady County, supra at 501; Dotson v. Henry County Bd. of Tax Assessors, supra at 559; Sibley v. Cobb County Bd. of Tax Assessors, supra at 69.

Hilton, the Chief Tax Appraiser, when asked why timber sales were not utilized to develop the sales ratio for comparables, testified: “[w]e did not use tracts with substantial timber. Because of the timber market being so volatile where you — where I have seen where tracts of land have sold for, say, $100,000 and they cut the trees and they sale [sic] the timber for $110,000 giving a negative value. It just does not give a true bare dirt price in the market.” “[W]e don’t have the knowledge to back the timber out.” He also testified that “not all pieces of property fit a schedule. It’s not a perfect, as you say, world. Therefore other underlying factors must be considered and therefore you could flat value a piece of property based on characteristics, location or neighborhood. . . . Small and large.” However, such cannot be done in disregard of the statutory mandates.

There were 7,700 tax parcels in the county, and 1,100 were considered large parcels. Of the 1,100 large parcels, approximately 600 have no improvements on them, i.e., houses, barns, or other structures. However, from the Assessors’ own records and appraisal methods used by other tax assessors elsewhere, it is practical and possible for standing timber to be appraised separately from the land. See generally Hancock County Bd. of Tax Assessors v. Dickens, 208 Ga. App. 742, 743 (1) (431 SE2d 735) (1993) (1991 tax year when Ga. L. 1990, p. 1901 applied prohibiting separate treatment). See Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983.

2. The Georgia Constitution prohibits standing timber being assessed more than once and requires such assessment be made after sale or harvest. Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983. The General Assembly deferred ad valorem taxation on growing trees so that growing forestry products were exempt from annual ad valorem taxation until sold or harvested, because the Assessors were taxing annually all stages of timber growth prior to 1992, which caused multiple taxation of the same standing timber at different stages of growth. See Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983; OCGA § 48-5-7.5. This meant that the growing but not yet merchantable timber had value that required deferral and exemption from taxation so that standing timber would not be annually taxed prior to harvest or sale. Deferral prevented multiple taxation of the single forestry product prior to harvest, thereby causing taxation to occur at harvest or sale of the unharvested timber. Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983. To the extent that growing standing timber is reflected in the land value at reassessment of the land and the value for growing timber is not removed from the fair market value, such growing standing timber is being assessed over and over at each annual reassessment in violation of the constitutional prohibition against more than one assessment of standing timber; further, such assessment is being done at a time other than sale or harvest. Art. VII, Sec. I, Par. Ill, Ga. Const, of 1983.

The General Assembly did not define “standing timber” for purposes of OCGA § 48-5-7.5 as “trees less than six inches in diameter” as did the Assessors, because all stages of timber growth were to receive tax deferral. Tax deferral has a rational basis only when timber is considered as an agricultural cash crop that takes considerable time to grow to full maturity, and when it can be harvested, returns cash to pay the deferred taxes. OCGA § 48-5-7.1 (a) (1) provides deferral from ad valorem taxation to bona fide agricultural uses, including “forestry.” The statute makes no distinction between “merchantability” and maturing forests. In fact, if trees that had not reached maturity, i.e., “merchantable” within the Assessors’ definition, had no economic value, then the General Assembly performed a futile act in deferring taxation on “standing timber”; clearly, the General Assembly intended to exclude from ad valorem taxation all growing forestry products, i.e., pine seedlings to harvestable timber or pulpwood, until either sold or harvested. Thus, growing timber has economic value that must be exempted from annual taxation, even though the growing timber could not be sold. Ga. L. 1991, pp. 1903, 1907, 1919-1924, §§ 2, 6 (OCGA § 48-5-7.5 unamended).

In point of fact, in Jasper County in 1991, there were 51,000 acres of timberland with $20,000,000 worth of growing “standing timber,” and there were 1,100 tracts of land larger than 26 acres and 6,600 parcels of less than 26 acres. A substantial portion of the 51,000 acres of timberland, worth $20,000,000, was in the 1,100 large tracts, which included the 17 comparable sales that the Assessors defined as having no “merchantable” timber because the timber was not mature. The Assessors’ assumption that growing, but not mature, timber had no value was not supported by the Assessors’ own records. Thus, the Assessors, in not subtracting the value of growing timber from the fair market value of the land used in the sales ratio as comparables, refused to treat growing timber as tax-exempt and caused what is exempt from taxation until sold or harvested to be part of the assessed value of the land. See Art. VII, Sec. I, Par. Ill (e) (2), Ga. Const, of 1983; OCGA §§ 48-5-7.1 (a) (1); 48-5-7.5. Had the Assessors calculated the value of the growing timber for each of the comparables and subtracted out such value of the sales price for each comparable before calculating the sales ratio, so as to reflect only the value of the land alone, then current use for growing trees and tax deferral would have complied with the statutory mandate, and the sales ratio for the comparables would reflect only the value of the underlying land for timberland, excluding the standing timber.

Judgment reversed.

Johnson, P. J., Beasley, Smith, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and McMurray, P. J., dissent.

McMurray, Presiding Judge,

dissenting.

The superior court denied the appeal of these two appellants after determining that they “failed to prove by a preponderance of the evidence that there was a lack of uniformity or that the values and the methods used were improper or incorrect.” On appeal, this Court considers the sufficiency of evidence and not its weight. The evidence presented at trial was sufficient to authorize the judgment of the trial court, which should be affirmed. Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834, 835 (350 SE2d 790). My view of the evidence supporting the trial court’s findings differs from the majority’s views, especially concerning the market value of immature timber. Therefore, I respectfully dissent.

The 1994 appraisal of appellants’ land was increased over the appraisal for the preceding year because of an increase in a location zone multiplier assigned to the northern portion of the county where the property in question was located. The location zone multiplier for appellants’ land was increased from 1.08 to 1.6 resulting in a 48 percent increase in the appraisals. This Court has previously approved of dividing a county into zones so as to realistically include location as a factor of value, so long as the zones are not arbitrarily fixed but drawn from analysis of property sales in the county. Bethea v. Joint City-County Bd. of Tax Assessors, 219 Ga. App. 111 (1), 112 (464 SE2d 37); Thomas County Bd. of Tax Assessors v. Balfour Land Co., 214 Ga. App. 181, 182 (446 SE2d 745).

In the case sub judice, the change in the location zone multiplier, accompanied by a reduction in the number of zones into which the county was divided and a consequent redrawing of the zones, was based upon sales ratio studies which appellants maintain were flawed. Appellants maintain that the large tract study (pertaining to tracts of 26 or more acres) was flawed because the tax assessors excluded sales of timberland from the study and also because some of the tracts of land included in the study did contain significant quantities of timber for which no adjustment in sales price was made, resulting in a taxing of timber value prior to harvesting in violation of the uniformity requirement and the provision of the Georgia Constitution that standing timber be assessed only once following harvest. Art. VII, Sec. I, Par. Ill (e) (2).

As to the exclusion of timberland sales from the study, there is no requirement in Georgia law that comparable sales be identical, so that the valuation of timberland may be properly accomplished without the benefit of timberland sales. Inland Container Corp. v. Paulding County Bd. of Tax Assessors, 220 Ga. App. 878, 879 (1), 881 (470 SE2d 702). Therefore, the trial court was authorized to consider evidence that the valuation of the underlying land from timberland sales was not practical due to the volatile nature of timber prices. The conflicting evidence presented by appellants, that timber value could and should be backed out of timberland sales to obtain a realistic value for the underlying land, presented a factual question for resolution by the trial court as trier of fact and which was determined adversely to appellants.

Appellants’ contention, that the land sales used in the large tract study contained tracts with timber for which no adjustments in sales prices were made, presents another factual dispute which the trial court resolved against defendants. The original list of sales considered did include two timberland tracts which were later removed from the study without affecting the conclusions of the study. As to the tracts left in the study, the tax assessors testified as to examining each tract and finding no merchantable timber. There was no evidence that growing but not yet merchantable timber might contribute to the value of a tract of land. Therefore, no error was apparent in the failure to adjust the sales prices for such tracts.

Finally, I fail to find any lack of uniformity inherent in the sub-classification of the county by tract size, the division here being into large tracts of 26 acres or more, and small tracts of less than 26 acres. Tract size was acknowledged as a consideration in determining fair market value by the experts who testified in this case and has been noted in our prior decisions. See .Thomas County Bd. of Tax Assessors v. Balfour Land Co., 214 Ga. App. 181-182, supra, and Monroe County Bd. of Tax Assessors v. Remick, 165 Ga. App. 616, 619 (300 SE2d 203). Furthermore, within each subclassification there were further adjustments for tract size.

Decided July 16, 1998.

Jay S. Ricketts, for appellants.

W. Dan Roberts, for appellee.

In the case sub judice, appellants have attempted to demonstrate a lack of uniformity by showing a divergence in the values assigned to similar properties near the boundary of these two sub-classifications. However, once more, the evidence on this point is conflicting and within the domain of the trial court as trier of fact.

I am authorized to state that Chief Judge Andrews joins in this dissent.

       “ ‘[T]he any evidence rule[ ]’. . . provides that when a non-jury single-judge judgment is reviewed in the Georgia appellate courts neither the Supreme Court nor the Court of Appeals will interfere with a finding by the trial tribunal ‘where there is any evidence to support it.’ That phrase, including the italicization of the word ‘any,’ comes from Balkcom v. Vickers, 220 Ga. 345, 348 (138 SE2d 868) [(1964)]. There Justice (now [former] Chief Justice) Grice pointed out that this rule stems historically from the long struggle in our state for the establishment of a Supreme Court, ‘one of the charges of the opposition being that this court would re-try factual issues.’ Thus, our appellate courts are limited to ‘correction of errors of law’ as stated in the Georgia Constitution. Justice Grice also noted our ‘any evidence’ requirement differs from the standards used by other judicial systems including the federal reviewing courts where their inquiry is ‘whether the evidence is “substantial” or whether the finding is “clearly erroneous,” or “manifestly wrong.” ’ ” Kingston Dev. Co. v. Kenerly, 132 Ga. App. 346, 348-349 (208 SE2d 118) (1974). See also Thompson v. Hill, 143 Ga. App. 272 (238 SE2d 271) (1977). Such “any evidence” rule does not apply to legal error review. See Balkcom v. Vickers, supra at 348-349.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A0507.
    VANCE et al. v. JACKSON.
    (504 SE2d 529)
   Pope, Presiding Judge.

In 1988, appellant John Vance purchased from appellee R. L. Jackson a tract of real estate on Lake Lanier, which had been subdivided into three lots. After purchasing the land, Vance reconfigured the tract into two larger lots. After this reconfiguration, Jackson agreed to provide financing for Vance’s purchase of the lot designated as “Lot 1.” Vance built his home on the lot designated as “Lot 2,” and Lot 1 remained vacant.

Later, when Vance was unable to meet his payments to Jackson, he deeded Lot 1 back to Jackson as part of a settlement of the debt. In connection with this transaction, Vance told Jackson that he had discovered that the driveway built on Lot 2 encroached approximately 12 to 18 inches onto Lot 1. The parties took no action to remedy this situation at the time. But later, when Jackson decided to put Lot 1 on the market, he secured a letter from Vance acknowledging the encroachment and agreeing to work out a “mutually acceptable solution” with any prospective buyer.

In 1994, Jackson found a buyer for Lot 1 who conducted his own survey of the property. This and later surveys revealed that Vance’s driveway encroached onto Lot 1, not twelve to eighteen inches as the parties originally thought, but by some six feet. When the parties were unable to resolve the matter, Jackson brought suit to remove the encroachment and for damages. Vance previously had conveyed a joint interest in Lot 2 to his wife, appellant Nancy Vance, so both Vances were named as defendants in the complaint.

The matter was heard in a bench trial, and the trial court found that the Vances’ driveway was encroaching upon Jackson’s property and awarded Jackson $10,000 in damages resulting from the encroachment. This appeal followed.

1. The Vances’ first two enumerations of error center around their argument that the trial court should have reformed the legal description in the various deeds between the parties pursuant to OCGA § 23-2-25 in order to prevent the encroachment. The Vances base this argument on later surveys of the property, which revealed a “gore” between Lot 1 and adjacent property belonging to a third party. The gore consists of an approximately 0.033 acre piece of triangular property with a lake frontage of 13.45 feet. It is unclear who owns this property under existing legal descriptions and boundary lines.

The Vances contend that this gore is the result of a surveying error. They argue that the legal description for the property on the deed conveying Lot 1 back to Jackson was based upon an erroneous plat, and thus that the legal description also is inaccurate. They assert that the trial court should have reformed the legal description of the property to shift the northernmost boundary line of Lot 1 to run adjacent to the existing boundary line of the adjacent third-party property, thus eliminating the gore. The Vances further argue that the northernmost boundary line of Lot 2 should have been shifted in a similar manner, which would have eliminated the encroachment.

OCGA § 23-2-25 allows a court of equity to reform a conveyance, if the conveyance is, by accident or mistake, “contrary to the intention of the parties in their contract.” The Vances argue that the trial court should have adjusted the legal description of the property as they propose because the parties did not intend to create a gore, but rather intended that the boundary line of Lot 1 should begin at the boundary line of the adjoining third-party property.

However, the evidence at trial supports the trial court’s decision not to reform the property description. “The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them.” (Citations and punctuation omitted.) Sheppard v. Sheppard, 229 Ga. App. 494, 495 (2) (494 SE2d 240) (1997). At trial, two surveyors testified that neither Jackson nor Vance ever purchased the property constituting the gore. This testimony was supported by measurements they took of the subject property. The original property deeded to Jackson, allowing for various intervening sales, had 233 feet of lake frontage. When they measured the property to exclude the gore, the boundary of the property fronting the lake remained at 233 feet. If the property was measured to include the gore, the boundary line would exceed 233 feet. Additionally, there was at least some evidence to indicate that the gore resulted from a mistake made when the adjacent third-party property was surveyed in the 1970’s and thus that the gore could belong to the third-party landowners.

The record therefore supports a finding that at the time Vance reconveyed Lot 1 back to Jackson, he did not own the gore and could not have conveyed the gore to Jackson. A party cannot convey title to property to which he does not hold title, whatever his intentions may be. Therefore, it was not error for the trial court to find that the deeds in question accurately described the property conveyed and correctly reflected the intention of the parties.

2. As their third enumeration of error, the Vances contend that the evidence does not support the trial court’s award of $10,000 in damages resulting from the encroachment. “Generally, the measure of damages for injuries to real property is the difference in the value . . . before and after the injury.” (Citation omitted.) Garner v. Blair, 214 Ga. App. 357, 358 (2) (448 SE2d 24) (1994). See also Whitaker Acres v. Schrenk, 170 Ga. App. 238, 241 (3) (316 SE2d 537) (1984).

The Vances are now arguing that the trial court erred in not ordering them to remove the encroaching portion of the driveway in lieu of damages. But at trial they argued that the removal of the driveway would place an undue burden upon them. The Vances cannot now claim that the trial court erred when it adopted their own argument, and the trial court was correct in finding that damages were the appropriate remedy.

While we believe that the record contains sufficient evidence to allow a finder of fact to determine the damages resulting from the encroachment, we are unable to determine from the current record how the trial court arrived at an amount of $10,000. Accordingly, we remand this matter to the trial court and direct it to make findings of fact as to the basis for the amount of damages awarded.

Decided July 16, 1998.

Webb, Tanner & Powell, Anthony O. L. Powell, for appellants.

Louis T. Cain, Jr., for appellee.

Judgment affirmed and case remanded with direction.

Beasley and Ruffin, JJ., concur.

       The total judgment below was $24,752, reflecting the $10,000 awarded in the bench trial and $14,752 awarded to Jackson in a related jury trial. The matter thus came before this Court on direct appeal, but the subject of the appeal is limited to issues presented in the bench trial.

       Black’s Law Dictionary defines a gore as “a small triangular piece of land, such as may be left between surveys which do not close.”

       These measurements are also consistent with an older document describing the property purchased by Jackson’s predecessor in title. Jackson originally purchased property with a northwesterly boundary of 374 feet in the 1950’s from Rosa Lou Bowman Bagwell. The evidence demonstrated that Bagwell’s original option to purchase the land in question provided for a northwesterly boundary of 375 feet, “more or less.”

       The evidence also indicated that Vance was not very careful or accurate in measuring the property lines when he built his home himself on Lot 2, and thus the encroachment of his driveway onto Lot 1 may have been the result of his own measurement errors.

       Moreover, under these circumstances, it was not error for the court to leave the gore as it currently exists. The issue of the gore’s ownership had not been raised by anyone seeking title to the property.


author: Pope, Presiding Judge. Eldridge, Judge, Beasley, Judge,

text:
    A98A0636.
    FLEMING v. THE STATE.
    (504 SE2d 542)
   Pope, Presiding Judge.

Denorris Fleming was tried for armed robbery, motor vehicle hijacking, and aggravated assault. He was acquitted of the hijacking charge, and the jury returned a verdict finding him guilty of armed robbery and the lesser offense of simple assault. Fleming appeals, arguing that the court erred in failing to grant his motion for directed verdict; in failing to charge the jury as he requested; and in failing to consider his First Offender Petition. For the following reasons, we affirm Fleming’s conviction and sentence, although in so doing we overrule State v. Allmond, 225 Ga. App. 509 (484 SE2d 306), cert. denied, 225 Ga. App. 906 (1997).

Viewing the evidence in the light most favorable to the verdict, on April 21, 1996, the victim was seated in her car in a driveway when she saw Fleming get out of a car. Fleming ran to the driver’s side of the victim’s car, stuck a gun inside the window of the car, and told the victim to get out of the car. When the victim complied, Fleming jumped in the car and drove off.

Although the weapon Fleming used the night of the crime was actually a pellet gun, the victim testified that on the night of the incident she thought the gun was a real one. The victim also testified that she thought Fleming would shoot her if she did not obey his instructions.

The victim identified Fleming as the perpetrator of the crime both in a photographic lineup and later in a lineup of individuals. She also identified Fleming at trial.

Officer Patricia Boyce of the City of East Point testified that she was patrolling an apartment complex when she saw Fleming rushing away as he saw the police vehicle. Her partner chased Fleming on foot, and Officer Boyce then saw a lady’s purse inside the vehicle Fleming had occupied. Officer Boyce ran the vehicle’s tag and discovered that it had been reported stolen within the hour.

Fleming gave a statement to police the day after the incident in which he denied any involvement in the carjacking. Several days later he gave a videotaped statement, in which he stated that he was joyriding during “Freaknik” weekend and was just joking when he pulled the gun on the victim. Fleming wrote a letter of apology to the victim, which an officer mailed to her.

At trial Fleming testified that at the time of the incident he was drinking and had intended to simply ask the victim for her phone number. Although Fleming stated that he did not remember pointing the gun at the victim, he admitted that twice he told her to get out of the car. On cross-examination, Fleming conceded that he approached the victim’s car with the gun in his hand and tapped on the car door with the gun. Fleming again apologized for his behavior.

1. Fleming claims that the evidence was insufficient to support the conviction for armed robbery and that the court erred in denying his motion for directed verdict. Specifically, he argues that the pellet gun used in the incident was not an offensive weapon and that he did not use the pellet gun in an intimidating manner.

We disagree. Based on the evidence presented, we conclude that, as used in this incident, the pellet gun constituted an offensive weapon. Morgan v. State, 191 Ga. App. 226, 227 (2) (381 SE2d 402) (1989); Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992); see generally OCGA § 16-8-41 (a). A rational trier of fact could find from the evidence adduced at trial proof of Fleming’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Fleming argues that the court erred in failing to give two of his requested jury charges. Fleming’s claim that the court erred in failing to give his requested instruction regarding offensive weapons is without merit for the reasons stated in Division 1. Moreover, the charge which the court gave regarding the term “offensive weapon” was proper.

Fleming’s argument that the court should have charged the jury on the lesser included offense of theft by taking is also without merit. The transcript shows that the court initially charged the jury on armed robbery and on the lesser included offense of robbery by intimidation. The jury twice asked to be recharged on armed robbery and the lesser included offense of robbery by intimidation, and the court twice recharged the jury.

“ ‘A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.’ (Citation and punctuation omitted.) Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994). However, ‘where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.’ (Emphasis in original.) Id. at 133.” Hopkins v. State, 227 Ga. App. 567 (1) (489 SE2d 368) (1997). See also James v. State, 210 Ga. App. 454, 455 (2) (b) (436 SE2d 565) (1993). Here, there was no evidence which would authorize the court to charge on the lesser included offense of theft by taking. Fleming made a videotaped confession admitting to all elements of armed robbery and admitted at trial that he took the car by using a gun. Fleming was guilty of armed robbery or robbery by intimidation, and the appropriate crimes were charged.

3. Finally, Fleming contends that the court erred when it failed to consider his First Offender Petition. Fleming filed the petition after the verdict was returned, but before the court entered the sentence. Fleming’s petition was timely. See generally OCGA § 42-8-60 (a).

In sentencing Fleming, the court relied on State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978), and because of the mandatory minimum sentences set forth in OCGA § 17-10-6.1, determined that it lacked authority to impose a sentence of less than ten years. Fleming argues that State v. Allmond, 225 Ga. App. 509, established that the provisions of the First Offender Act applied to the serious violent felonies listed in OCGA § 17-10-6.1.

At the time of the March 25, 1997 sentencing hearing, OCGA § 17-10-6.1 (b) provided: “[notwithstanding any other provisions of law to the contrary, any person convicted of a serious violent felony . . . [which includes armed robbery as defined in Code section 16-8-41] shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.” (Emphasis supplied.) See generally Bryant v. State, 229 Ga. App. 534 (494 SE2d 353) (1997); Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998). Subsection (d) of § 17-10-6.1 states: “[f]or purposes of this Code section, a first conviction of any serious violent felony means that the person has never been convicted of a serious violent felony under the laws of this state or of an offense under the laws of any other state or of the United States, which offense if committed in this state would be a serious violent felony.” OCGA § 16-8-41, which defines armed robbery, provides in subsection (d): “[a]ny person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” See State v. Stuckey, 145 Ga. App. 434; compare Lockhart v. State, 227 Ga. App. 481 (489 SE2d 594) (1997).

The First Offender Act of OCGA § 42-8-60 (a) provides: “[u]pon 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 question of the interrelation between OCGA §§ 17-10-6.1 and 42-8-60 was the focus of this Court’s inquiry in State v. Allmond, 225 Ga. App. 509. In that case, this Court concluded that the legislature intended that the First Offender Act apply to the defendant, who had pled guilty to six counts of armed robbery and two counts of possession of a firearm during a felony, regardless of the mandatory minimum sentences of OCGA § 17-10-6.1. In so finding, the Court stated: “if the legislative intent had been to deny some aspects of first offender treatment to perpetrators of certain crimes, this could have easily been stated.” Id. at 510.

In State v. Allmond, Allmond had argued that OCGA § 17-10-6.1 (b) was not applicable until a person was “convicted” of one of the specified crimes, and that because his guilty plea and selection for first offender treatment did not result in “an adjudication of guilt or conviction,” the mandatory minimum sentences did not apply. In affirming the trial court, this Court recognized that: “[u]pon fulfillment of the terms of probation or release from confinement, a first offender is discharged without any adjudication of guilt and is not considered to have a criminal conviction. OCGA § 42-8-62.” State v. Allmond, 225 Ga. App. at 509-510. Accordingly, this Court concluded that OCGA § 17-10-6.1 (b) was not intended to curtail the provisions of the First Offender Act.

We conclude that State v. Allmond must be overruled. Our conclusion is based on several factors, most important of which is the legislature’s recent pronouncement on this subject. On March 27, 1998, the General Assembly amended OCGA § 17-10-6.1 and added OCGA § 42-8-66 to the First Offender statute, in order to avoid the result reached in State v. Allmond. The amendments specifically state that a defendant who is convicted of one of the serious violent felonies contained in OCGA § 17-10-6.1 will not be eligible for First Offender treatment under OCGA § 42-8-60.

In enacting these provisions, the legislature declared: “in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the ‘Sentence Reform Act of 1994,’ that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence. . . .

“[C]ontrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the ‘Sentence Reform Act of 1994’ shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment.” Ga. L. 1998, p. 180, § 1, effective March 27, 1998.

Accordingly, the amended OCGA § 17-10-6.1 (b) provides: “[n]o person convicted of a serious violent felony as defined in subsection (a) of this Code section shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.” The newly enacted OCGA § 42-8-66 of the First Offender Act provides: “[t]he provisions of this article shall not apply to any person who is convicted of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.”

Although the legislature failed to adjust its terminology in the new OCGA § 17-10-6.1 (b) and abandon the use of the word “convicted” since a defendant is not “convicted” under the First Offender Act, its intent in amending the statutes is clear. “If it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” (Citations and punctuation omitted.) First Union Nat. Bank &c. v. Collins, 221 Ga. App. 442, 445 (471 SE2d 892) (1996). “[Subsequent legislation declaring the intent of a legislative body in enacting an earlier statute is entitled to great weight in statutory construction.” (Citations and punctuation omitted.) Hicks v. State, 228 Ga. App. 235, 237 (1) (494 SE2d 342) (1997).

Our conclusion that the First Offender Act does not apply to the sentences for serious violent felonies outlined in OCGA § 17-10-6.1 (a) is also supported by Campbell v. State, 268 Ga. 44, 46 (485 SE2d 185) (1997). In that case, our Supreme Court stated that: “[t]he mandatory sentence legislation of the Sentence Reform Act was introduced to make truth in sentencing a reality, by ensuring that upon the conviction for a serious violent felony, the offender will serve the full sentence ordered by the court. Ga. L. 1994, p. 1959. [Cit.] The Act became effective on January 1, 1995, after ratification by the voters of Georgia at the 1994 November general election of an amendment to Art. IV, Sec. II, Par. II of the Georgia Constitution. This amendment authorized the General Assembly to provide for mandatory minimum sentences and to impose restrictions on the authority of the State Board of Pardons and Paroles to grant paroles. Ga. L. 1994, p. 1959, § 18.” Id. at 46 (4). Moreover, the 1994 amendment to Art. IV, Sec. II, Par. II states in subsection (b) (2): “[t]he General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirety for persons convicted of armed robbery, . . . and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence.” Subsection (d) of the amendment expressly ratified and approved previously enacted statutes dealing with mandatory minimum sentences. See 1995 Op. Atty. Gen. No. 95-4 (discussing the constitutional limitations on the power of the Board of Pardons & Paroles with respect to the inability to parole during the mandatory minimum sentence for the serious violent felonies set forth in OCGA § 17-10-6.1).

Based on the above, we conclude that the trial court here properly disregarded Fleming’s First Offender Petition and sentenced him correctly.

Judgment affirmed.

McMurray, P. J., Johnson, P. J., Smith, Ruffin, JJ., and Senior Appellate Judge Harold R. Banke concur. Eldridge, J., concurs specially. Andrews, C. J., Beasley and Blackburn, JJ., dissent.

Eldridge, Judge,

concurring specially.

I concur in the majority’s judgment.

1. “[I]n State v. Allmond, 225 Ga. App. 509 [(484 SE2d 306)] (1997), the Georgia Court of Appeals held, notwithstanding the ‘Sentence Reform Act of 1994’ that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence. . . .

“[C]ontrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the ‘Sentence Reform Act of 1994’ shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment.” Ga. L. 1998, p. 180, § 1, effective March 27, 1998.

This year, the legislature amended both OCGA § 17-10-6.1, the Sentence Reform Act, and OCGA § 42-8-60 et seq., the First Offender Act, to specifically state that a defendant who is convicted of one of the serious violent felonies contained in OCGA § 17-10-6.1 will not be eligible for First Offender treatment under OCGA § 42-8-60.

Unfortunately, in the amendment, the legislature continued to use the phrase “any person convicted of a serious violent felony” in reference to those affected by the Act. (Emphasis supplied.) Ga. L. 1998, p. 181, § 2, amending OCGA § 17-10-6.1 (b). By continuing to utilize the term “convicted,” the legislature did not quite understand the semantic consternation that word has provided in some appellate quarters, i.e., when sentenced under the First Offender Act, a defendant is not “convicted” so as to make applicable the mandatory minimum sentence requirements of the Sentence Reform Act. However, in my view, the legislature’s clear, clear expression of its intent this go-round should now permit us to by-pass discussion of such finer legal points and do our duty as interpreters of the legislative will. “The cardinal rule of statutory construction is to ascertain the legislative intent and purpose in enacting the law and to construe the statute to effectuate that intent.” Ferguson v. Ferguson, 267 Ga. 886, 887 (1) (485 SE2d 475) (1997).

(a) As we recently noted, “[i]f it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” (Citations and punctuation omitted.) First Union Nat. Bank &c. v. Collins, 221 Ga. App. 442, 445 (471 SE2d 892) (1996). See also Hicks v. State, 228 Ga. App. 235, 237 (494 SE2d 342) (1997). “It is equally axiomatic that subsequent legislation declaring the intent of a legislative body in enacting an earlier statute is entitled to great weight in statutory construction.” (Citations and punctuation omitted.) Id. at 237.

Clearly, then, in OCGA § 17-10-6.1, the legislature meant to give the word “convicted” its ordinary, plain meaning. When reviewing a criminal conviction, the members of this Court have, without exception, utilized the word “convicted” to mean “returned a verdict,” as in “the jury convicted” the defendant of the crime(s). To convict is “to find a man guilty of a criminal charge, either upon a criminal trial, a plea of guilty or a plea of nolo contendere.” Black’s Law Dictionary, 5th ed. In its plain meaning, “convicted” is simply the past tense thereof.

Here, after the jury found Fleming guilty of armed robbery, he stood “convicted of a serious violent felony as defined in paragraphs (2) through (7) of subsection (a) of [OCGA § 17-10-6.1]” for purposes of the sentencing considerations toward which that statute is directed. (Emphasis supplied.) OCGA § 17-10-6.1 (b). Thus, the mandatory minimum ten-year sentence of imprisonment required under OCGA § 17-10-6.1 was properly imposed by the trial court.

(b) As has been recognized by the Supreme Court of Georgia, regardless of its active date, applying an amendment such as the one in the instant case, which simply affirms the legislative intent that existed prior to the amendment, is not a retroactive application of the law; it is simply an expression of what the law was all along. See Porquez v. Washington, 268 Ga. 649, 652 (492 SE2d 665) (1997). This Court’s misinterpretation of OCGA §§ 17-10-6.1 and 42-8-60 so as to permit the First Offender Act to impact on the mandatory minimum sentencing requirements of the Sentence Reform Act did not “create” a new law which superseded the original legislative purpose in enacting those statutes. Thus, recognizing what the law was from the inception and applying it to the instant case is not prohibited as a retroactive application. Porquez v. Washington, supra.

In that regard, the legislature has let this Court know that in State v. Allmond, we incorrectly interpreted its will in enacting OCGA § 17-10-6.1, the Sentence Reform Act, in relation to OCGA § 42-8-60 et seq., the First Offender Act. The legislature never intended for those found guilty of serious violent felonies, i.e., “convicted” thereof, to be eligible for First Offender treatment. The legislature made this point by explaining that our decision in State v. Allmond was “contrary” to its original “expressed intent” (past tense) in enacting the Sentence Reform Act of 1994. Ga. L. 1998, p. 181. Thus, State v. Allmond notwithstanding, the trial court correctly determined that OCGA § 17-10-6.1 precluded consideration of the First Offender Act.

Therefore, Fleming’s conviction and sentence should be affirmed under the law.

2. I do not believe this Court should ignore the legislative mandate of Ga. L. 1998, p. 180, § 1. However, should we decide to do so because Fleming’s conviction date precedes the active date of the amendment, it must be recognized that State v. Allmond would still require limitation.

(a) If we are to ignore the legislative intent as expressed, then it must be recognized that under the plain wording of the preamendment statutes at issue, there was never anything inconsistent about the trial court’s ability to utilize discretion and impose the First Offender Act, OCGA § 42-8-60, as long as the term imposed was “as provided by law,” i.e., pursuant to OCGA § 17-10-6.1. See OCGA § 42-8-60 (a) (2).

In this case (as was the case in State v. Allmond), while the trial court would have no discretion as to the mandatory minimum “term of confinement” that must be imposed pursuant to OCGA § 17-10-6.1, the trial court would be free to consider, at its discretion, the imposition of the First Offender Act, along with such mandatory term of confinement. State v. Allmond must be limited to the extent that a probated term was permitted, when the mandatory minimum term of confinement “as provided bylaw” is ten years. OCGA § 17-10-6.1 (a) (2). Otherwise, consistent with State v. Allmond, OCGA § 17-10-6.1 on its face would not “curtail the provisions of the First Offender Act.” Id. at 510.

Thus, assuming that the General Assembly’s desires are set aside in this matter, under the pre-amendment statutes when read together, Presiding Judge Pope’s position would be correct that the trial court lacked authority to impose a term of confinement less than the mandatory minimum required by OCGA § 17-10-6.1, and Presiding Judge McMurray’s position would be correct that this case should be remanded because the trial court believed that it could not consider imposition of the First Offender Act, after such was requested by Fleming. Of course, the trial court has the discretion to deny First Offender treatment to Fleming; however, in this case the trial court denied such treatment under an error of law.

It appears to me that in the semantic discussion of the meaning of the word “convicted,” lost were the statutory maxims: “[I]n construing any section of the Code, we must treat it as a single statute forming one homogeneous and consistent body of laws, and each Code section is to be considered in explaining and elucidating every other part of the common system to which it belongs.” (Citations and punctuation omitted.) Huntsinger v. State, 200 Ga. 127, 130-131 (1) (36 SE2d 92) (1945); Ga. Mut. Ins. Co. v. Gardner, 205 Ga. App. 458, 460 (422 SE2d 324) (1992). “Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987). In the absence of words of limitation, words in a statute should be given “their ordinary and everyday meaning.” Mgmt. &c. Group/Southeast v. United &c. Employee Programs, 194 Ga. App. 99, 101 (2), 102 (389 SE2d 525) (1989).

In my view, OCGA §§ 17-10-6.1 and 42-8-60 should have been read together in State v. Allmond so as to give effect to both. And if the inability to reconcile the two statutes turned on a forced interpretation of the word “convicted” which is alternately capable of a simple, plain, ordinary meaning which would have permitted both Acts to have continued viability, then our decision to opt for the constrained reading needs reevaluation herein.

While a verdict is not a “conviction” pursuant to OCGA § 16-1-3 (4), the return of a guilty verdict means the jury has “convicted” the defendant under the common meaning of the term as used by this Court (see n. 1, supra), the legal community, and the legislature so as to permit the trial court to move on to the sentencing considerations which are the subject of both OCGA § 17-10-6.1 and § 42-8-60.

In fact, our law provides that upon a verdict or plea of guilty, i.e., once a defendant is “convicted,” “the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years.” OCGA § 17-10-1 (a) (1). Those familiar with the realities of trial work realize that sentence is often pronounced following the return of the verdict, i.e., after the jury has “convicted” the defendant. Under the law, then, sentencing options are considered and sentence imposed prior to a formal “entry of judgment,” i.e., the “conviction” pursuant to OCGA § 16-1-3 (4). The Sentence Reform Act contains sentencing provisions', these are applicable after a defendant is “convicted” and prior to the entry of the “conviction.” This entry of judgment is the “conviction” that is withheld under the First Offender Act.

Accordingly, under the pre-amendment statutes, the mandatory sentence contained in OCGA § 17-10-6.1 should be imposed after a defendant is “convicted” of one of the specified crimes, but could be imposed under the First Offender Act, OCGA § 42-8-60. In which case the entry of judgment thereon, i.e., the “conviction,” would be withheld. There never was a conflict between the two statutes. And it is possible that recognizing such would have permitted the coexistence of the mandatory minimum sentence required under the Sentence Reform Act and the ability of a first time offender to escape the permanent consequences thereof after serving the mandatory sentence, by imposition of such sentence under the First Offender Act: a win-win situation now rendered impossible.

I believe that Fleming’s conviction and sentence should be affirmed and thus concur with Presiding Judge Pope’s judgment. Ignoring the legislature only does a disservice to the legal community and is not in our job description. Obviously, the legislature never intended to permit the imposition of the First Offender Act in cases such as this one, and the trial court properly imposed the minimum mandatory sentence demanded by OCGA § 17-10-6.1.

(b) If, however, the legislature is to be ignored by this Court, remand for consideration of the First Offender Act is all that is necessary. Construing together pre-amendment OCGA §§ 17-10-6.1 and 42-8-60 so as to harmonize both, it appears clear that “under the law” a mandatory minimum sentence of ten years is still required for those “convicted” by a jury of an offense as specified in OCGA § 17-10-6.1, even when such defendant is given the opportunity for First Offender treatment under OCGA § 42-8-60 and “conviction” is withheld.

Beasley, Judge,

dissenting.

I concur in Divisions 1 and 2 of the majority opinion but respectfully dissent from Division 3. The law in force when Fleming was tried and sentenced permitted the trial court to consider First Offender application.

Penal statutes must be construed strictly against the government. Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). Where there is any ambiguity, it is interpreted in favor of the defendant. Id. See Chapman v. State, 266 Ga. 356, 362, n. 17 (467 SE2d 497) (1996). This is a principle founded upon due process and the concept that a citizen has a right to know precisely what behavior is forbidden and what punishment can result. Underlining this is the legislature’s direct expression that the general probation article “shall be liberally construed so that its purposes may be achieved.” OCGA § 42-8-44. The first offender article, which is part of the same Code chapter covering probation, provides for probation for a certain category of offenders and should be construed likewise. See, e.g., Helton v. State, 166 Ga. App. 565 (305 SE2d 27) (1983).

In March 1997 when Fleming was sentenced, OCGA § 17-10-6.1 (b) was in effect in its unamended 1994 form. Before the court imposed sentence, Fleming petitioned the court to consider treating him as a first offender as provided in OCGA §§ 42-8-60 through 42-8-65, by “withholding” conviction and giving him an opportunity to successfully complete a sentence so he could escape a conviction for the crimes, which he admitted. OCGA § 42-8-62 (a) allows a trial court to choose to impose punishment on a first offender who, if the punishment is successfully completed, is discharged with the consequence that there is no “court adjudication of guilt” and the offender “shall not be considered to have a criminal conviction.”

The court did not consider this possibility for Fleming but instead applied OCGA § 17-10-6.1 because the court believed that it had “no authority or discretion” and was compelled to enter a judgment of guilt and impose a sentence of ten years as a mandatory minimum term of imprisonment for the armed robbery in accordance with OCGA § 16-8-41 (b). Ten years is the minimum under both OCGA § 16-8-41 (b), the armed robbery statute, and OCGA § 17-10-6.1 (b), the serious violent offender statute known as the Sentence Reform Act of 1994. The judge perceived that the first offender option was foreclosed by these two statutes.

But that was not correct. At the time Fleming was sentenced, the mandatory aspect of OCGA § 17-10-6.1 (b) applied only to persons who were “convicted,” as the statute expressly stated. The same legislature which required the mandatory minimum sentence of incarceration for persons “convicted” of certain serious violent felonies set up a method for punishment and supervision, short of conviction, for first offenders. OCGA §§ 42-8-60 to 42-8-65. As the law stood, in such instances the legislature preserved the authority of the judiciary in fulfilling the sentencing function. The option was available for appropriate cases in the sentencing judge’s discretion, which is exercised “[u]pon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt.” OCGA § 42-8-60 (a).

This construction of the law then in effect is inevitable when the plain meaning of the words is honored. A jury verdict is not a conviction; the court’s entry of judgment is based on the verdict, contains the sentence, and constitutes the “conviction.” Sartin v. State, 223 Ga. App. 759, 761 (4) (479 SE2d 354) (1996). The jury did not “convict” Fleming. Instead, it found him guilty of committing certain crimes, as memorialized by its written verdicts. After it returned its verdicts in open court, the jury’s function was accomplished. As the court advised the jurors, “[sjentencing addresses itself to me rather than to members of the jury under . Georgia law.” That being so, the case must be remanded to the trial court so it can exercise the discretion preserved to it by OCGA § 42-8-60.

Since Fleming’s sentencing and since this Court’s decision in State v. Allmond, 225 Ga. App. 509 (484 SE2d 306) (1997), both of which occurred in the same month, the legislature has amended OCGA § 17-10-6.1 (b) and added OCGA § 42-8-66 to the First Offender Act. These changes went into effect one year later, in March 1998.

In the changes, the legislature has made plain that it did not mean what it said when OCGA § 17-10-6.1 was written. It did not intend, it now has stated, that persons who commit a serious violent felony as designated in OCGA § 17-10-6.1 could be subject to first offender treatment if a judge would so decide. It has changed the meaning of the term “convicted” in OCGA § 17-10-6.1 and in the First Offender Act so that the statutory mandatory minimum term of ten years’ imprisonment must be imposed on any person who is found guilty by a jury or pleads guilty or nolo contendere to a designated serious violent offense. We must give that meaning to the word in this limited instance, despite its ordinary meaning, because the legislature has used “convicted” instead of what is really intended. Ordinarily, a person who is “convicted” has already been sentenced, as that aspect of the criminal prosecution precedes the entry of the judgment of conviction. But, in the amendment (OCGA § 17-10-6.1 (b)) and in the addition (OCGA § 42-8-66), “conviction” now must be construed to mean “found guilty or pleads guilty or nolo contendere.”

Decided July 16, 1998

Patricia A. Buttaro, for appellant.

But that was not true in 1997 when Fleming was sentenced. At that time, in those provisions of the law as well as in others where it is used (e.g., OCGA § 42-8-62), “conviction” had the meaning ascribed to it in State v. Allmond, supra. Allmond was correct when decided. The law has now changed. But the change did not affect Fleming’s case.

Campbell v. State, 268 Ga. 44 (485 SE2d 185) (1997), does not require a different result. It addressed the constitutionality of OCGA § 17-10-6.1 (b) and did not discuss at all its relationship to OCGA § 42-8-60 et seq. Appellants did not seek the application of the First Offender Act but instead challenged the constitutionality of the serious violent offender statute under which they were convicted on their guilty pleas.

The change in the meaning of “convicted” cannot be given retroactive effect. “The law as it exists at the time of the offense determines both the penalty that may be imposed and the conduct that is considered to be a crime. [Cits.]” (Footnote omitted.) Hicks v. State, 228 Ga. App. 235, 237 (1) (b) (494 SE2d 342) (1997).

Fleming does not argue that State v. Allmond, supra, “mandates” first offender treatment. Both in the trial court and here, Fleming recognizes that the judge may choose this diversionary course or not. If the judge does choose it, and if Fleming abides by its terms and is discharged, the statutory consequence is that there will be no “court adjudication of guilt” and he “shall not be considered to have a criminal conviction.” OCGA § 42-8-62 (a).

I am authorized to state that Chief Judge Andrews and Judge Blackburn join in this dissent.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

       See, e.g., Scott v. State, 230 Ga. App. 522 (496 SE2d 494) (1998); Watson v. State, 230 Ga. App. 79 (495 SE2d 305) (1998); Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (1997); Hope v. State, 226 Ga. App. 392 (486 SE2d 658) (1997); Carter v. State, 226 Ga. App. 198 (486 SE2d 79) (1997); Daniel v. State, 224 Ga. App. 673 (482 SE2d 409) (1997); Jessup v. State, 224 Ga. App. 176 (480 SE2d 232) (1996); Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996) (Beasley, C. J., dissenting); Carter v. State, 222 Ga. App. 397 (474 SE2d 228) (1996); Raines v. State, 219 Ga. App. 893 (467 SE2d 217) (1996).

       Such sentencing considerations also include the merger of offenses for which the jury “convicted” the defendant so as to preclude the entry of a judgment of conviction for offenses as prohibited by OCGA § 16-1-7. “ ‘It is the conviction of more than one crime established by the same conduct that § 16-1-7 (a) forbids.’ [Cit.]” (Emphasis in original.) Sanders v. State, 212 Ga. App. 832, 833 (2) (442 SE2d 923) (1994).

       Although the legislature has the power to fix punishment because it is a matter of public policy, so that limiting the judicial authority is not an unconstitutional encroachment on judicial independence, the narrowing of the opportunities to exercise judicial discretion constitutes a practical constriction of judicial independence.

       OCGA § 42-8-60 (a) states “upon a verdict,” which on its face constitutes a jury finding of guilt; it does not state “upon a finding of guilt,” which would also include a judge’s finding of guilt.


text:
    A98A0663.
    THE STATE v. BAENETT.
    (504 SE2d 531)
   Pope, Presiding Judge.

James Matthew Barnett was charged with no proof of insurance, following too closely, two counts of violating the Georgia Controlled Substances Act, and two counts of driving under the influence of drugs. Barnett filed a motion to suppress, which the court granted, and the State appeals. For the following reasons, we vacate the judgment and remand the case.

Evidence at the suppression hearing showed that Georgia State Patrol Trooper Dice Clark responded to a call to investigate an accident. Upon arriving at the scene, Clark found a 1997 Nissan Pathfinder which had hit a tree and also found a tractor-trailer which had been involved in the accident. Officer Clark determined that the driver of the Pathfinder was defendant Barnett, who was in an ambulance waiting to be transported to the hospital. Clark talked with Barnett, who was coherent, and asked him what had happened. Barnett told Clark that he had been driving the Pathfinder, that he had fallen asleep at the wheel, and that he did not know what had happened after that. Clark asked Barnett for his driver’s license and proof of insurance. Barnett showed his driver’s license and told Clark that his proof of insurance was in the glove compartment of the car. Trooper Clark went to the Pathfinder, opened the glove compartment, looked inside, and found an insurance card and a plastic bag that appeared to contain marijuana and a smoking pipe. Clark then followed Barnett to the hospital and read him his rights.

1. The State first argues that the court erred in denying its motion to dismiss Barnett’s motion to suppress. Barnett’s motion stated that “his vehicle was searched on or about May 1, 1997 and certain items alleged to be contraband were seized.” The motion also stated that the seized marijuana and drug-related object were “the fruit of an unreasonable search and seizure,” because the search was unreasonable since it was conducted without a warrant or probable cause.

The State argued orally below that the motion to suppress did not set forth facts showing that the search and seizure were unlawful and was insufficient under OCGA § 17-5-30. As stated in Lavelle v. State, 250 Ga. 224, 227 (3) (297 SE2d 234) (1982): £‘[i]t is true that the Code states that a motion to suppress shall ‘state facts’ showing wherein the search and seizure were unlawful. [OCGA § 17-5-30 (b).] However, analysis reveals that, with respect to warrantless searches, many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).”

Here, as in Hill v. State, 222 Ga. App. 839 (2) (476 SE2d 634) (1996), the motion was sufficient. Compare Young v. State, 225 Ga. App. 208 (1) (483 SE2d 636) (1997). The motion contains facts showing the date of the search, the general location of the search (i.e., Barnett’s vehicle), the items seized in the search, the fact that the search was conducted without a warrant, and the conclusion that the search was unsupported by probable cause or articulable suspicion. Although the motion does not identify the number of officers who performed the search or state that Barnett did not consent to the search, “[t]he motion in this case was sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witnesses to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.” Lavelle v. State, 250 Ga. at 227.

Because we conclude that the motion was sufficient, we need not consider whether Barnett’s letter brief, filed after the suppression hearing but before the court had ruled on the motion, should have been considered in determining the sufficiency of the motion to suppress. See generally Stanley v. State, 206 Ga. App. 125 (1) (424 SE2d 90) (1992) (concluding that statements in a brief could be considered in determining the sufficiency of the motion to suppress).

2. The State argues that the court erred in granting Barnett’s motion to suppress. Specifically, the State contends that the warrant-less search was lawful because when Officer Clark discovered the drugs, he was in the process of investigating the accident and was attempting to assure that Barnett had complied with OCGA § 40-6-10, which requires that every driver have insurance. The State also argues that evidence of the exchange between Officer Clark and Barnett established that Barnett gave his implied consent to search the glove compartment for an insurance card.

In granting the motion to suppress, the court stated: “[biased on the evidence presently before the Court, the Court cannot find beyond a reasonable doubt that by giving the location of the insurance card, that Defendant Barnett granted consent to Trooper Clark to enter Defendant’s vehicle and search the glove compartment.” The proper standard for a trial court’s determination of whether there is consent to search is preponderance of the evidence. Farley v. State, 195 Ga. App. 721 (394 SE2d 585) (1990); United States v. Matlock, 415 U. S. 164, 177 (94 SC 988, 39 LE2d 242) (1974); see generally State v. Roberts, 196 Ga. App. 846 (397 SE2d 183) (1990). In using the standard of “beyond a reasonable doubt” for determining whether there was consent, the court erred. Had the court found beyond a reasonable doubt that there was no consent, it would have been clear that the lower standard of preponderance of the evidence was met. But, the court found in the negative here, i.e., that it could not find beyond a reasonable doubt that the defendant consented. Under the standard of preponderance of the evidence, the court might have found that there was consent, or it might not have so found. Accordingly, we must vacate the judgment and remand the case so that the court may employ the correct standard in determining whether defendant consented to the search.

Decided July 16, 1998.

Roger B. Lane, Solicitor, for appellant.

Randall M. Clark, for appellee.

Judgment vacated and case remanded.

Beasley and Ruffin, JJ, concur.

       See Davis v. State, 203 Ga. App. 315, 316 (2) (416 SE2d 789) (1992).