author: Mikell, Judge.

text:
    A02A1067.
    In the Interest of C. R., a child.
    (570 SE2d 609)
   Mikell, Judge.

The mother of C. R. appeals the juvenile court’s order permitting the child’s temporary custodian, his paternal grandmother, to obtain immunizations for him, over the mother’s religious objections. Because OCGA § 15-11-13 gives the custodian of a deprived child the right to determine his medical care, we affirm.

The relevant facts are undisputed. C. R. was born on February 28, 2001. He was immediately placed in the custody of the Clayton County Department of Family & Children Services (the Department) based on evidence that his siblings were malnourished to the point of starvation. An order finding him deprived was not appealed. A subsequent order granting the Department’s motion to cease its efforts to reunify the mother and her children has been affirmed on appeal.

Both of C. R.’s grandmothers sought to gain custody of him, and, in November 2001, the court awarded temporary custody to C. R.’s paternal grandmother, Lynette Norman. The order authorized Norman to obtain for the child physical examinations, ordinary medical care, and such additional medical care and treatment as deemed necessary by a licensed physician. One week later, the juvenile court held a hearing to consider the mother’s religious objections to Norman’s desire to have the child immunized.

At the hearing, the mother described her religious objections as follows: “Well, basically I, as a Christian, I believe every word that’s in the Bible from Genesis to Revelation, and the Bible also states that we should believe God for our healing, and that puts vaccinations ... at odds with what the Bible states.” However, the mother also testified that the church to which she belonged, the World Changers Church International, did not disagree with the practice of immunizing children.

The mother further testified that she had submitted an affidavit to the Department exempting her children from immunizations on religious grounds pursuant to OCGA § 31-12-3. That statute empowers appropriate governmental agencies to require “persons located within their respective jurisdictions to submit to vaccination against contagious or infectious disease where the particular disease may occur, whether or not the disease may be an active threat.” Subsection (b) provides: “In the absence of an epidemic or immediate threat thereof, this Code section shall not apply to any person who objects in writing thereto on grounds that such immunization conflicts with his religious beliefs.”

The juvenile court rejected the mother’s objection, relying on OCGA § 15-11-13, which governs the rights of a person to whom the court has awarded custody of a deprived child:

A custodian to whom legal custody has been given by the court under this article has the right to physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care, and the right and duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child, subject to the . . . remaining rights and duties of the child’s parents or guardian.

The court observed that the only remaining parental rights under this Code section that have been recognized by the appellate courts are the rights to consent to an adoption of the child and to visit with the child. Accordingly, the court ruled that the statute gave Norman the authority to have the child immunized. .

On appeal, the mother contends that the juvenile court’s order violates her right to freedom of religion as guaranteed by the United States and Georgia Constitutions. This argument misses the point. The mother forfeited her right to control her child’s medical care when she lost custody of him, even though the loss may be temporary.

Because the mother did not appeal the juvenile court’s order finding C. R. to be a deprived child, she is bound by that determination. A deprived child is defined as one who ££[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” “It has been held that to authorize . . . even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent. . . .” In affirming the nonreunification order concerning C. R., we held that clear and convincing evidence supported the juvenile court’s determination that the mother was unfit and that grounds existed for terminating her parental rights. Accordingly, she lost the right to control her child’s medical or religious decisions.

We note that the mother does not challenge the constitutionality of OCGA § 15-11-13. Rather, she argues that her right to object to her child’s immunizations on religious grounds is a residual parental right under the statute. We cannot agree.

Religious conflicts in child custody disputes are nothing new. In such proceedings between parents, the “person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training, and the noncustodial parent shall have the right to visitation.” This is consonant with the deprived child custodian’s “duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child.” We do not believe the legislature intended to bestow upon the parents of a deprived child rights greater than those granted to noncustodial parents under OCGA § 19-9-6 (4).

For these reasons, we hold that the right to lodge religious objections to a child’s immunizations pursuant to OCGA § 31-12-3 (b), § 20-2-771 (e), or § 49-4-183 (b) (10) (C) is not a residual right of the child’s parents under OCGA § 15-11-13. It follows that the juvenile court’s order permitting C. R. to be immunized should be affirmed.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

Decided August 23, 2002.

Edward R. Downs, Jr., for appellant.

Foster & Foster, Donald R. Foster, Kasey G. Wyatt, Teresa O. Wei-ner, for appellee.

        In the Interest of R. N. R., 257 Ga. App. 93 (570 SE2d 388) (2002).

       Id.

       OCGA § 31-12-3 (a).

       See also OCGA §§ 20-2-771 (e); 49-4-183 (b) (10) (C) (providing for religious exemptions to children’s immunizations as a condition of entering school or day care and of receiving public assistance).

        O’Neal v. Wilkes, 263 Ga. 850, 852-853 (3) (439 SE2d 490) (1994); Skipper v. Smith, 239 Ga. 854, 856 (2) (238 SE2d 917) (1977).

        In the Interest of K. B., 188 Ga. App. 199, 200 (1) (372 SE2d 476) (1988).

       OCGA § 15-11-13.

       See In the Interest of J. S. G., 242 Ga. App. 387, 388 (1) (529 SE2d 141) (2000).

       OCGA § 15-11-2 (8) (A).

        In re D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (1986).

        In the Interest of R. N. R., supra at 95 (1).

       OCGA § 19-9-6 (4). See Appelbaum v. Hames, 159 Ga. App. 552, 553-554 (284 SE2d 58) (1981).

       OCGA § 15-11-13.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A1109.
    THE STATE v. JOHNSON.
    (570 SE2d 627)
   Johnson, Presiding Judge.

The state appeals from the state court’s order granting Stephen Johnson’s motion to dismiss a DUI accusation and transferring the case back to the recorder’s court for resolution. For the reasons set forth below, we reverse the judgment of the state court.

In May 2001, Gwinnett County police arrested Johnson for DUI and issued a citation accusing him of violating OCGA § 40-6-391. Johnson was ordered to appear in the Recorder’s Court of Gwinnett County.

In July 2001, Johnson filed in the recorder’s court a motion to dismiss for lack of jurisdiction, alleging that the recorder’s court could not hear cases involving state law violations. Johnson also objected in advance to any motions which might be filed by the solicitor to bind the case over to state court, and to enter a nolle prosequi in the case.

Before the recorder’s court ruled on Johnson’s motions, the solicitor of that court notified Johnson that he was electing to treat the DUI charge as a violation of the state criminal statute and that the charge would be bound over to the State Court of Gwinnett County.

Upon the solicitor’s motion, the recorder’s court judge issued an order binding the case over to state court. The state court solicitor-general then filed an accusation in state court charging Johnson with two counts of DUI, one for driving under the influence of alcohol when it was less safe to do so, and one for driving under the influence of alcohol while being under twenty-one years old. Johnson moved to dismiss the accusation, arguing that it was improper for the state court to proceed while there was still a prosecution pending in the recorder’s court. According to Johnson, the purported transfer to state court was not valid, because OCGA § 40-6-376 does not authorize a transfer to state court by the solicitor, only by the defendant.

A short time later, the recorder’s court solicitor moved to enter a nolle prosequi on the original DUI charge. The recorder’s court judge granted the motion.

Thereafter, the state court judge issued an order stating that while the defendant may request a transfer to a state tribunal, there is no provision of the law which allows the solicitor to request such a transfer. Therefore, the state court ordered the case transferred back to the recorder’s court for resolution there and implicitly granted Johnson’s motion to dismiss the state court accusation. The state appeals from that order.

1. The state contends that the state court erred in granting Johnson’s motion to dismiss based on a finding that the solicitor lacked authority to move for a transfer of the case to state court. We agree with the state.

OCGA § 40-6-376 (a) provides, in pertinent part, that an offense which is a violation of both Chapter 6 and a local ordinance may, at the discretion of the local law enforcement officer or prosecutor, be charged as a violation of the state statute or of the local ordinance. Johnson concedes that the solicitor-general in this case was authorized to elect to charge him with violating the state statute.

It was also within the solicitor’s authority to request that the charges be tried in state court. In Mattarochia v. State, the defendant argued that his case was improperly bound over from the City Court of Atlanta to the State Court of DeKalb County because the citations issued indicated that he violated local ordinances and he had not elected to have the offenses treated as state offenses pursuant to OCGA § 40-6-376 (b). This Court held that the solicitor’s decision to charge the defendant with state violations was duly authorized by OCGA § 40-6-376 (a). And though the Court did not expressly hold that the solicitor could properly move to try the state offenses in state court, it did hold that there was nothing improper in the case being bound over to state court without any election by the defendant to have the offenses treated as state offenses. This holding supports the state’s position here.

We also note that the recorder’s court judge has authority, on his own motion and within his sole discretion, to bind a case over to state or superior court for trial and disposition where the offense would constitute a violation of state law. Therefore, removal to state court can be accomplished without any election by the defendant.

And, we point out that, generally, a solicitor-general is authorized to enter a nolle prosequi on a pending accusation and then renew the prosecution at a later date. This would have the same effect as the transfer about which Johnson complains.

Decided August 23, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Gary S. Vey, Assistant Solicitor-General, for appellant.

Clark & Towne, Richard T. Ryczek, Jr., Wystan B. Getz, for appel-lee.

Contrary to Johnson’s argument, OCGA § 40-6-376 (b) does not require a different result. Under that subsection, “If the offense charged under an ordinance constitutes a violation of any provision of this chapter, the defendant may request transfer of the charge to the appropriate state tribunal.” Johnson interprets this subsection as meaning that only a defendant may request a transfer to state court. However, subsection (b) relates to offenses charged under an ordinance; in this case, the offenses are charged under a state statute: OCGA § 40-6-391. Further, the fact that this subsection states that “the defendant may request transfer” to state court does nothing to prohibit the solicitor from also requesting a transfer.

Accordingly, the state court erred in dismissing the case and ordering it transferred back to the recorder’s court for disposition.

2. Based on our holding in Division 1, we heed not address the state’s complaint that the state court judge was without authority to transfer the case back to the recorder’s court.

Judgment reversed.

Blackburn, C. J., and Miller, J., concur.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (k).

       See OCGA § 5-7-1 (a) (1).

       200 Ga. App. 681, 682 (1) (409 SE2d 546) (1991).

       Id.

       Ga. L. 1972, p. 3133, § 23; see Smith v. Greene, 274 Ga. 815, 817 (559 SE2d 726) (2002).

       OCGA § 15-18-66 (b) (10).

       See Buice v. State, 272 Ga. 323, 324-326 (528 SE2d 788) (2000); State v. Davis, 196 Ga. App. 785, 786 (397 SE2d 58) (1990).

       (Emphasis supplied.) OCGA § 40-6-376 (b).


text:
    A02A1244.
    FRANK v. STATE OF GEORGIA.
    (570 SE2d 613)
   Mikell, Judge.

Joyce K. Frank appeals the trial court’s order granting the state’s request for forfeiture of Frank’s automobile. On March 29, 2001, Frank’s son, Shawn Wesley Hagenbuch, was arrested for driving without a license, driving under the influence of alcohol, and leaving the scene of an accident. At the time of his arrest, Hagenbuch was driving Frank’s 1996 Nissan 300ZX. He was a habitual violator whose license had been revoked as a result of three violations of OCGA § 40-6-391, which prohibits driving under the influence of drugs or alcohol. The state seized the car and filed a complaint for forfeiture pursuant to OCGA § 40-6-391.2 (c). Following a hearing which was not transcribed, the trial court granted the forfeiture. Frank appeals, arguing that there was no evidence that she knew her son would drive her car, that the court erred in its construction of OCGA § 40-6-391.2, and that the court failed to consider whether the harshness of the forfeiture was proportional to the gravity of the offense. We affirm the trial court’s judgment.

1. First, Frank contends that there was no evidence that she had reason to believe that her son would drive her car. OCGA § 40-6-391.2 (h) provides:

The interest of an owner . . . shall not be subject to forfeiture unless the condemnor shows by a preponderance of evidence that such person knew or reasonably should have known that the operator was a habitual violator . . . and knew or reasonably should have known that such person would operate or was operating the vehicle while in violation of Code Section 40-6-391.

After hearing the evidence, the trial court found that Hagenbuch lived with Frank, and she knew her son was a habitual violator, yet Frank kept a second vehicle, the 1996 Nissan at issue, at her home. The court further noted in its order that the key chain on which the police found the Nissan key also held a bottle opener and a “roach clip” that did not belong to Frank, and that the 1996 Nissan contained several items, including a beer can, a rap compact disc, and a marijuana “disk,” that Frank testified were not hers. Based on the evidence it heard at the hearing, the court concluded that Frank’s vehicle was subject to forfeiture.

Significantly, there is no transcript of the hearing included in the record. “Where no transcript is included in the record on appeal we must assume that the evidence was sufficient to support the judgment.” (Citations omitted.) Burns v. Barnes, 154 Ga. App. 802 (1) (270 SE2d 57) (1980). We cannot consider Frank’s argument that the evidence presented did not support the judgment, when there is no transcript to review. “This court is a court for the correction of errors and its decision must be made on the record . . . and not upon the briefs of counsel.” (Citations and punctuation omitted.) Sheffield v. Zilis, 170 Ga. App. 62, 65 (2) (316 SE2d 493) (1984). Frank has failed to meet her burden of showing error by the record; therefore, we will not disturb the order of the trial court. See Welch v. Mercer, 165 Ga. App. 776 (302 SE2d 629) (1983).

2. Next, Frank argues that the trial court erroneously construed OCGA § 40-6-391.2 (h) as a strict liability statute and gave her no opportunity to pursue an “innocent owner” defense. As noted above, we do not have the benefit of a transcript with which to review the evidence and argument the trial court considered in reaching its decision. However, our review of the trial court’s order reveals that the court did consider whether Frank was an innocent owner. The court expressly stated that “Mrs. Frank did not give permission to Mr. Hagenbuch to drive nor did she know he was driving on this occasion.” The court went on to conclude, based on the evidence, that Frank knew or reasonably should have known that Hagenbuch would operate the vehicle in question without her permission. Frank has failed to show error affirmatively by the record; therefore, we affirm. See Welch, supra.

3. Finally, Frank contends that the trial court erred in failing to consider whether the harshness of the forfeiture was proportionate to the gravity of the offense with which Hagenbuch was charged. Frank argues that forfeiture of her vehicle amounted to an unconstitutionally excessive fine. We disagree.

Frank relies on Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), for her argument that the court should have engaged in a three-part analysis of whether the forfeiture was an excessive fine. Significantly, Thorp involved an automobile that was forfeited in connection with a defendant’s guilty plea to possession of cocaine. Id. The defendant’s car was impounded, and police discovered cocaine, a set of scales, and several plastic bags in it. Id. In Thorp, the Supreme Court adopted the minimal guidelines set forth in United States v. 6625 Zumirez Drive, 845 FSupp. 725, 732 (C.D. Cal. 1994), for excessiveness inquiries. Thorp, supra at 717-718 (3). The Court held that in evaluating whether forfeiture is excessive, the trial court should consider: (1) “the inherent gravity of the offense compared with the harshness of the penalty”; (2) “whether the property was close enough to the offense to render it ‘guilty’ ”; and (3) “whether the criminal activity involving the . . . property was extensive in terms of time and/or spatial use.” (Punctuation omitted.) Id. at 717, citing 6625 Zumirez Drive, supra. These factors have been consistently applied in forfeiture cases involving violations of the Georgia Controlled Substances Act. See, e.g., Mitchell v. State of Ga., 236 Ga. App. 335-336 (1) (511 SE2d 880) (1999); Evans v. State of Ga., 217 Ga. App. 646-647 (458 SE2d 859) (1995). However, our research does not reveal that this analysis has been extended to cases involving the forfeiture of a vehicle operated by a habitual violator under OCGA § 40-6-391.2.

As a preliminary matter, because there is no transcript of the hearing, we do not know whether Frank raised an issue regarding excessiveness. It is well settled that “[w]e will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court.” Jones v. State of Ga., 249 Ga. App. 64, 67 (2) (547 SE2d 725) (2001). Further, because application of the three factors requires the trial court to make mixed findings of fact and law, we apply the clearly erroneous standard of review. Mitchell, supra at 336 (1). Again, we cannot determine whether the court’s findings were clearly erroneous, because we have no transcript to review. As noted above, we must assume that the evidence supported the trial court’s findings. See Burns, supra.

Decided August 23, 2002.

Thompson, Fox, Chandler, Homans & Hicks, David A. Fox, for appellant.

Lydia J. Sartain, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

Finally, even if we apply the Thorp analysis to the few facts we know in this case, we conclude that the trial court’s decision was correct. First, it is apparent from the court’s order that it considered the harshness of the penalty but properly determined that forfeiture of the vehicle was expressly provided by the applicable statute, OCGA § 40-6-391.2. Second, the vehicle was the instrumentality used by Hagenbuch to commit the offense which led to the forfeiture and, therefore, was close enough to the offense to render it “guilty.” Third, while it was not apparent how frequently Hagenbuch drove his mother’s car, it was clear that he was driving it at the time of his arrest. Accordingly, we affirm the judgment of the trial court.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: MlKELL, Judge.

text:
    A02A1447.
    GRIFFIN v. THE STATE.
    (570 SE2d 611)
   MlKELL, Judge.

After a jury trial, George Griffin was convicted of robbery by intimidation. On appeal, Griffin contends that the trial court erred by admitting his confession because it was not voluntary. We disagree and affirm.

The standard for determining whether or not a confession was voluntary is the preponderance of the evidence standard. The trial court’s decision on this point will not be disturbed on appeal unless there is obvious error. “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” The Supreme Court of Georgia has construed “slightest hope of benefit” to mean the hope of a lighter sentence. “Insofar as the ‘remotest fear of injury’ is concerned, any confession obtained through physical or mental torture is inadmissible.”

There is no dispute that Griffin was read his Miranda rights before giving the tape-recorded statement at issue. Griffin contends that during the interview, however, Detective Guest made several statements that amounted to offering Griffin a hope of benefit in exchange for his confession. In the first statement at issue, Detective Guest told him, “George, it’s time to be honest. Have you got anything in your past? Because if you don’t tell me the truth, there ain’t nothing I can do to help you.” A similar statement was upheld in Cooper v. State, wherein the police officer told the defendant, “look, just take your time and level with me, ‘cause I want to help you.” Our Supreme Court found the confession voluntary because the officer’s statement did not convey the hope of a lighter sentence. Likewise, here, Detective Guest’s offer to help Griffin if he told the truth does not render Griffin’s confession inadmissible.

In the third and fourth statements at issue, Detective Guest stated: “[MJaybe you got a dope problem. If that’s the case, maybe you need some help”; and “I want to know why it happened, because it’s to your benefit to tell me why.” As stated earlier, the offer to help, alone, does not constitute a hope of benefit. Furthermore, we have held that an officer may tell a defendant that he would be helping himself if he told the truth.

Detective Guest told Griffin that his girlfriend might get in trouble because she drove the getaway car. In his brief, Griffin does not state clearly his contention as to whether this statement offers a hope of benefit or induces a fear of injury. Nevertheless, either contention fails. This statement does not convey a hope of benefit since it does not promise a lighter sentence. Nor could it have induced a fear of injury since there is no allegation that Griffin’s confession followed physical or mental torture. Furthermore, an officer’s comment on a mere “truism” or a “recounting of the facts” does not render a confession inadmissible.

Decided August 23, 2002.

James D. Crowe, for appellant.

Kenneth W. Mauldin, District Attorney, Daniel F. Piar, Assistant District Attorney, for appellee.

Since none of Detective Guest’s statements offered the hope of a benefit in the form of a lighter sentence or induced a fear of injury, the trial court did not err when it admitted Griffin’s confession. Therefore, we affirm.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        High v. State, 233 Ga. 153, 154 (1) (210 SE2d 673) (1974).

        Ingram v. State, 137 Ga. App. 412, 413 (1) (224 SE2d 527) (1976).

       OCGA § 24-3-50.

        King v. State, 155 Ga. 707, 715-716 (118 SE 368) (1923); Turner v. State, 203 Ga. 770, 771 (2) (48 SE2d 522) (1948); Caffo v. State, 247 Ga. 751, 757 (3) (279 SE2d 678) (1981).

        State v. Roberts, 273 Ga. 514, 517 (4) (543 SE2d 725) (2001) (citing Coker v. State, 199 Ga. 20, 25 (2) (33 SE2d 171) (1945)).

       256 Ga. 234, 235 (2) (347 SE2d 553) (1986).

       Id.

       Id.

        Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982). But cf. Turner, supra at 771 (2) (officer’s statement that the punishment would be lighter if the defendant told the truth was improper).

       See Roberts, supra.

       See Copeland v. State, 162 Ga. App. 398, 400 (3) (291 SE2d 560) (1982) (officer’s statement that the defendant’s wife could be charged with a crime did not constitute a fear of injury such as would render the defendant’s confession involuntary).


text:
    A02A1517.
    MORRIS v. THE STATE.
    (570 SE2d 619)
   Johnson, Presiding Judge.

A jury found James Morris guilty of armed robbery, aggravated assault, kidnapping, and possession of a firearm during the commission of a crime. He appeals, alleging (1) the trial court erred by granting the state’s motion to remove a juror accepted by Morris and seating a juror struck by Morris, and (2) he was denied effective assistance of counsel. Because there was no reversible error at trial, we affirm the convictions.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that around 1:00 a.m., two men entered a closed restaurant when the bartender took some mats out the back door. They forced the bartender back into the restaurant at gunpoint. They then forced seven people present in the restaurant to gather in the office where the safe was located. They did this at gunpoint. The two men robbed the safe, taking a bag with the receipts of the evening, and took a cell phone and money from one of the victims. They then forced the occupants into a bathroom.

The bartender positively identified Morris from a photo lineup, and the bartender and one of the other victims identified Morris at trial as one of the men they saw holding a gun and committing the crimes. The record further reveals that a search of Morris’ residence, which he shared with Jason Williams, his half-brother and co-defendant, revealed two weapons which matched the descriptions of the weapons used in the robbery.

At trial, Williams testified that Morris helped him during the robbery. According to Williams, Morris’ brother worked at the restaurant and suggested the robbery. Morris’ brother denied any involvement in the robbery and testified that Williams committed the robbery on his own. In response, the state offered a previous statement given by Morris’ brother in which he admitted that he, Williams and a person he refused to identify had planned the robbery. Morris presented an alibi defense through the testimony of his girlfriend.

1. In his first enumeration of error, Morris contends the trial court erred in removing a juror accepted by Morris and seating a juror struck by Morris. We find no error.

The venire from which the jury was struck comprised 15 white jurors and 12 African-American jurors. Morris, who is African-American, used seven of the nine strikes he exercised against white jurors. The state challenged four of Morris’ strikes.

(a) Morris now complains that the trial court improperly shifted the burden from the state to Morris by not requiring the state to make a prima facie case of racial discrimination. However, the Supreme Court has not found error where the trial court assumes the existence of a prima facie case and requires the defendant to produce reasons not based on race for the strikes, making the preliminary showing of a prima facie case moot. Moreover, it is clear from the transcript that after the state challenged Morris’ use of peremptory strikes, Morris proffered his purportedly race-neutral reasons for the strikes. Under Georgia law, once the party exercising the peremptory challenges has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate issue of intentional discrimination, the preliminary question of whether the challenging party has made a prima facie showing becomes moot.

(b) Morris next claims the trial court committed reversible error when it found that juror Meeks was struck upon the basis of racial considerations. We first note that the trial court’s finding of purposeful discrimination is a finding of fact which must be given great deference by the appellate court, since it will largely turn on an evaluation of credibility and since the trial court can hear and see the demeanor of both prospective jurors and counsel. Thus, we may only reverse the trial court’s determination that Morris’ peremptory challenge was motivated by intentional discrimination if that determination is clearly erroneous.

Here, the trial court found that three of the challenged jurors struck by Morris were, in fact, struck for race-neutral reasons. However, with respect to juror Meeks, the trial court found that Morris failed to provide a race-neutral reason for striking this juror. Morris first stated that juror Meeks was struck because he worked in a technical school, and such persons tended to be conservative. Morris then stated that juror Meeks “really didn’t participate” in voir dire and that he supervised employees. In addition to considerations of demeanor, credibility and the disproportionate striking of white jurors, the trial court found that Morris’ excuses for striking juror Meeks were whimsical, fanciful and unrelated to the case to be tried. The trial court then removed the last seated juror, a white male, and replaced him with juror Meeks, also a white male.

In the present case, the trial court was authorized to disbelieve the facially race-neutral reasons for striking juror Meeks, or to conclude that the stated grounds were not neutrally applied. For example, the explanation of striking an employee of a technical school because such persons tend to be conservative can be considered whimsical or fanciful. Morris based his reasons for striking juror Meeks on Meeks’ nature, not his employment. In fact, Morris did not even remember juror Meeks’ specific employment. When the trial court expressed concern over Morris’ strike of juror Meeks, Morris changed his response. The trial court was authorized to conclude that Morris’ alternate reasons for striking juror Meeks — because he “really didn’t participate” in voir dire and because he sounded as if he was in a position that supervised a lot of people — lacked merit. This is especially true given Morris’ admission that he did not pursue any issues regarding juror Meeks. According to Morris, “I think if I pursue it farther, it probably would have been helpful at this time; however, in the interest of time, I didn’t pursue it farther.”

While Morris lists a number of reasons for striking juror Meeks in his appellate brief, these reasons, and a more thorough analysis of the reasons given to the trial court, were not supplied at the time the trial court ruled on the issue. It is clear from the trial transcript that Morris did not have a specific reason for striking juror Meeks and that Morris was waffling in his explanations to the trial court. Considering the fact that the trial court accepted Morris’ reasons for striking three of the four challenged jurors, combined with the lack of merit and specificity in the reasons proffered for striking juror Meeks, we find no clear error in the trial court’s determination to seat juror Meeks. “As with the state of mind of a juror, evaluation of the challenger’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.”

2. Morris contends he was denied effective assistance of counsel because his trial attorney (1) failed to object to and specifically preserve the issue of reseating juror Meeks, and (2) failed to subpoena an alibi witness. In order to prevail on his claim of ineffective assistance of counsel, Morris must show that counsel’s performance was deficient and that the deficient performance prejudiced him such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. There is a strong presumption that counsel’s conduct falls within the broad range of professional conduct.

As discussed in Division 1, Morris’ trial counsel did object to the reseating of juror Meeks and, in fact, effectively argued against the reseating of three other jurors challenged by the state. Moreover, the trial court properly reseated juror Meeks after conducting the appropriate analysis. Thus, Morris has failed to show that a new trial would have been granted based on either his trial counsel’s failure to object or his trial counsel’s failure to preserve the issue of reseating juror Meeks.

As for Morris’ argument that his trial counsel was ineffective because he failed to subpoena an alibi witness, the record shows that trial counsel did, in fact, attempt service at the address provided by Morris and that the witness’ whereabouts could not be determined. Trial counsel cannot be held ineffective for failing to track down a witness whose whereabouts are unknown. In addition, Morris never proffered evidence at his motion for new trial showing what this alibi witness would have actually testified to had he been subpoenaed. Having failed to present more than his bare assertion that the witness could have supported his alibi defense, Morris cannot show his counsel was ineffective in failing to call him.

Decided August 23, 2002

Cole & Fleming, Thomas L. Cole, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

Moreover, in light of the overwhelming evidence of Morris’ guilt, including his identification by two of the victims as the person who robbed the restaurant and the testimony of his accomplice, even if trial counsel’s failure to subpoena the witness was deficient, Morris has failed to make the requisite showing of prejudice. Trial counsel presented an alibi witness at trial. However, the jury rejected Morris’ alibi defense, and Morris has not shown how the testimony of the witness, alleged to have pertinence to his alibi defense, would have altered the outcome of the trial. The trial court did not err in finding that trial counsel rendered effective assistance of counsel.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       See Walker v. State, 271 Ga. 328, 330 (3) (519 SE2d 670) (1999); Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

        Leeks v. State, 226 Ga. App. 227, 228 (3) (483 SE2d 691) (1997); Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994), overruled in part on other grounds, Felix v. State, 271 Ga. 534, 540 (523 SE2d 1) (1999).

       See Ellerbee, supra at 316 (7) (a).

       Id.

       See generally McKibbons v. State, 216 Ga. App. 389, 390 (1) (455 SE2d 293) (1995).

       See McKibbons, supra; Ellerbee, supra at 316-317 (7) (b).

       (Citation and punctuation omitted.) Taylor v. State, 219 Ga. App. 475, 477 (2) (465 SE2d 473) (1995).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Mobley v. State, 271 Ga. 577 (523 SE2d 9) .(1999).

        Mobley, supra at 578.

       See Smith v. State, 231 Ga. App. 677, 684 (6) (499 SE2d 663) (1998).

       See Jones v. State, 217 Ga. App. 722, 724 (2) (458 SE2d 894) (1995).

        Godson v. State, 252 Ga. App. 347, 352 (11) (b) (556 SE2d 449) (2001).

       See Bellamy v. State, 272 Ga. 157, 162 (11) (527 SE2d 867) (2000).


author: Miller, Judge.

text:
    A02A1612.
    In the Interest of H. H. et al., children.
    (570 SE2d 623)
   Miller, Judge.

Following a bench trial on a petition to terminate parental rights, the juvenile court terminated the parental rights of the parents of two young girls and a young boy. The parents appeal, arguing that the evidence did not suffice to sustain the judgment. The evidence showed that after the children were placed in foster care due to unsanitary living conditions and abandonment, the parents continued to live in squalor and did not comply with the court reunification plan. The State petitioned to terminate their parental rights, which petition the court granted based on the deplorable conditions continuing in the home. Since the evidence supports the trial court’s order, we affirm.

At the time W. D. A. H. was born, his parents and two sisters were living with his paternal grandparents, who did not approve of a third grandchild. The mother concealed the pregnancy and gave birth to the boy in the backseat of a car, placing him in a plastic bag and abandoning him. The boy was discovered an hour later and hospitalized, where his body temperature was 94.2 (barely higher than that at which life is sustained), his kidneys were not functioning, and he was in a state of shock. The parents conceded that the boy was deprived, and the court immediately placed him into foster care.

The reunification plan required that the parents maintain a stable and secure home, free of hazards. Although the parents moved into their own home, they lived in unsanitary conditions, leading to a second court order one year later extending the State’s custody of the boy. The court found that the boy had a skin condition that would not tolerate any level of uncleanliness, and the court emphasized to the parents the need to maintain a clean household.

Three months later, the school system contacted the Department of Family & Children Services (DFACS) because the eldest daughter (five years old at the time) had been kept from school due to lice infestation. This daughter had missed 35 days of school due to head lice, and this time her head was “loaded with lice, especially around the ears, and they were large brown eggs, which meant they were very close to hatching. . . .” A caseworker visited the home and also found nits, or lice eggs, in the other daughter’s hair.

Beyond the lice, the caseworker discovered the home to be in a state of absolute squalor, which he documented through photographs. He found (1) feces on the floor in the dirty, unkempt kitchen, (2) no sheets or blankets on one daughter’s bed (which the mother claimed were in the wash but indeed were not), (3) the other daughter’s bed covered with stains and her room reeking of cat urine, (4) piles of clothes and toys strewn throughout the house, (5) garbage scattered throughout the house, (6) a kitchen littered with unwashed dishes and spilt liquids, (7) a bathroom sink full of trash, (8) rotting food and dirty dishes in a filthy living room, and (9) trash and abandoned cars throughout the yard. The daughters themselves were dirty. The court found the daughters deprived and placed them in foster care also.

The daughters but not the son were eventually returned to the parents, the parents agreeing with the court that the son should not yet be returned to them. DFACS sent an aide to teach and assist the parents with housekeeping techniques, but the parents were so uncooperative that the aide ceased those efforts. Forewarning the parents of her visit days in advance, a caseworker came to inspect the home for cleanliness, only to find a repeat of the earlier squalid conditions. The house reeked of cat feces and was in disarray, with laundry, filth, and trash throughout; one daughter’s mattress was saturated with cat urine and the other’s was very dirty with no sheets; and garbage overflowed the bags. The caseworker picked up the girls from school, finding them both with very strong body odors, filthy hair, and dirty clothes. These conditions resulted in another deprivation order that placed the daughters in foster care again. The parents again expressed a preference that the son not yet live with them. DFACS filed a petition to terminate the parents’ rights to all three children.

Evicted from their residence, the parents then moved into a tiny two-bedroom mobile home that by their own admission was too small to house the three children. One bedroom was even filled to the ceiling with boxes, fertilizer, and equipment. Taking judicial notice of all prior evidence and court orders, the court received additional evidence and found particularly disconcerting the parents’ adamant refusal to maintain a stable and secure hazard-free home for the children, despite four years of admonitions and efforts. The court granted the termination petition and, finding no suitable relatives who could care for the children, awarded custody to DFACS for the purpose of adoption.

The parents appeal, arguing (1) the evidence did not suffice to authorize termination, and (2) the court erred in not awarding custody to the paternal grandparents. As there was sufficient evidence to support the trial court’s rulings, we affirm.

1. On appeal, our task is to determine whether a rational trier of fact could have found clear and convincing evidence of parental misconduct or inability and could have found that termination of the parents’ rights was in the best interests of the children. OCGA § 15-11-94 (a); In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999). “Parental misconduct is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the deprivation is likely to continue or will not be remedied, and it is likely to cause serious physical, mental, emotional or moral harm to the child. [OCGA § 15-11-94] (b) (4) (A).” B. D., supra, 236 Ga. App. at 119.

(a) Parental Misconduct. Regarding parental misconduct, the parents do not challenge the first two factors (the children are deprived as a result of lack of parental care), nor could they. On several occasions over the four years, the juvenile court found the children deprived as a result of lack of proper parental care and control. As none of these orders were appealed, the parents were bound by the findings, and the first two factors are satisfied. In the Interest of R. G., 249 Ga. App. 91, 93 (1) (a) (547 SE2d 729) (2001); see In the Interest of R.W., 254 Ga. App. 34, 36 (2) (a) (i), (ii) (561 SE2d 166) (2002); In the Interest of A. G., 253 Ga. App. 88, 89 (1) (a), (b) (558 SE2d 62) (2001).

Moreover, the squalid living conditions found in the parents’ residence — despite four years of case plan mandates and DFACS attempts to assist — endangered the children’s health as manifest in the repeated, gross infestation office (causing the eldest child to miss 35 days of school). See OCGA § 15-11-94 (b) (4) (C) (iii) (failure to comply with reunification plan may be factor). A rational trier of fact could have found the children to be deprived as a result of lack of proper parental care and control and could further have found that “these living conditions posed a serious health risk to the children and could affect them physically,” thus satisfying the fourth factor. R. W., supra, 254 Ga. App. at 37 (2) (a) (iv); see In the Interest of S. S., 232 Ga. App. 287, 289-290 (2) (501 SE2d 618) (1998); Vermilyea v. Dept. of Human Resources, 155 Ga. App. 746, 751 (2) (272 SE2d 588) (1980). As explained in S. S., the parents’ citation to In the Interest of D. S., 217 Ga. App. 29, 31-32 (1) (456 SE2d 715) (1995), as contrary authority is unavailing, as that case is physical precedent only. S. S., supra, 232 Ga. App. at 289 (1). “Moreover, the reunification efforts of DFACS in the case sub judice, such as providing a parent aide to appellant [s] and encouraging [them] to fulfill realistic goals [,] aré sufficient to distinguish this case.” Id.

Regarding parental misconduct, that leaves only the third factor — the cause of the deprivation is likely to continue or will not likely be remedied. The parents point to isolated instances when they were able to briefly clean the residence immediately before hearings. “[T]he court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Citation and punctuation omitted.) In the Interest of D. W., 235 Ga. App. 281, 282 (509 SE2d 345) (1998). Where the evidence shows that after instances of cleanliness the parents repeatedly allow the home to revert to a filthy and unsanitary condition, a rational trier of fact could reasonably conclude that these unhealthy conditions would continue. R. W., supra, 254 Ga. App. at 36 (2) (a) (iii).

(b) Best Interests of the Children. The same factors which show the parents’ inability to rear their children may also provide evidence that termination of their rights would be in the best interests of their children. D. W., supra, 235 Ga. App. at 283. The court may consider the children’s need for a secure, stable home. OCGA § 15-11-94 (a). Beyond the lice, the two daughters showed clear signs of developmental delay caused by the parents’ misconduct. The unwanted son had not been raised by his parents at any point. Evidence sufficed on this factor.

2. The parents contend that the court erred in failing to place the children with the paternal grandparents. OCGA § 15-11-103 (a) (1) provides:

If, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with a person related to the child by blood or marriage or with a member of the child’s extended family. ... A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.

Decided August 23, 2002.

Sherry H. Campbell, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Williams, Sammons & Sam-mons, Walter G. Sammons, Jr., for appellee.

This determination rests within the discretion of the juvenile court, which determination we will not disturb absent an abuse of that discretion. See In the Interest of B. W., 254 Ga. App. 63, 65-66 (3) (561 SE2d 199) (2002); In the Interest of S. K., 248 Ga. App. 122, 129 (3) (545 SE2d 674) (2001).

The court carefully investigated the possibility of placing the children with the paternal grandparents. The court considered (1) the grandparents’ opposition to the birth of the grandson, (2) the grandparents’ general disinterest in getting custody of any of the children over the four years (despite their knowledge that such was available), (3) the grandparents’ lack of candor regarding their recent sudden interest in the children, and (4) the grandparents’ age and health problems. The court concluded that the grandparents wanted the children simply as a ruse to return the children to their parents. Since evidence supported the court’s finding that it was in the best interests of the children not to be placed with the grandparents, we discern no abuse of discretion. See B. W., supra, 254 Ga. App. at 65 (3); In the Interest of C. L. R., 232 Ga. App. 134, 139 (3) (501 SE2d 296) (1998).

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


text:
    A02A1720.
    HARRELL v. THE STATE.
    (570 SE2d 607)
   Johnson, Presiding Judge.

A jury found Chevy Harrell guilty of driving under the influence of drugs and alcohol to the extent that it was less safe to drive, driving under the influence of cocaine, and driving with a suspended license. Harrell appeals, alleging the trial court erred in admitting the results of her urine test into evidence because the state failed to establish a sufficient chain of custody. We find no error and affirm Harrell’s convictions.

The record shows that after her arrest for driving under the influence, an officer with the Rockmart Police Department took Harrell to the local .hospital for a urine test. At the hospital, the officer opened a sealed blood alcohol kit, took a urine sample from Harrell, and gave the sample to a nurse. The officer watched as the nurse sealed and wrote on the sample. The urine sample was sealed first within a cup and then within a Styrofoam container and a box. The sample was labeled and sealed in the appropriate kit. The officer then gave the sample to a different officer, who placed the sealed container in the sealed police refrigerator.

While no evidence was presented regarding the transportation of the sealed container to the crime lab, a crime lab employee testified that she received the sealed container, that it was still sealed, and that it showed no evidence of tampering. The sealed container was labeled as being collected by the Rockmart Police Department on the date of the incident. According to the crime lab employee, everything was properly labeled and sealed, except the defendant’s name was spelled Chevy “Harold” instead of Chevy “Harrell.” The state further presented evidence that the labeling of the sealed container was done by the hospital nurse and that the officer never spelled the defendant’s name for her. Rather, the nurse asked the defendant about her name.

We find no merit in Harrell’s claim that the state failed to establish a sufficient chain of custody.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not negative every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.

We have reviewed the chain of custody evidence and find that the state established reasonable assurances of the identity of the urine sample. While there was no evidence presented regarding the preservation and custody of the sample in the sealed police refrigerator, and the sample contained a name similar to, but different from, the defendant’s, these factors do not preclude admission of the urine test results. In fact, when a urine sample is routinely handled and nothing in the record raises a suspicion that the urine tested was other than that taken from the defendant, the evidence of tests on such urine is admissible. The only suspicion of tampering raised by Harrell is the fact that there is no evidence regarding the delivery of the sample to the crime lab and the fact that Harrell’s name was spelled incorrectly on the package. The trial court properly ruled that these facts could be considered by the jury in its determination of the weight to be given to the urine test results.

Decided August 23, 2002.

Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

James R. Osborne, District Attorney, Brian P. Duncan, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       (Citations and punctuation omitted.) Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

       See Swanson v. State, 248 Ga. App. 551, 552 (1) (b) (545 SE2d 713) (2001).

       See Jordan v. State, 223 Ga. App. 176, 182 (3) (477 SE2d 583) (1996) (chain of custody established even though arresting officer’s description differed from the forensic toxicologist’s description of the urine sample’s packaging); Carver v. State, 175 Ga. App. 599, 601 (2) (333 SE2d 697) (1985) (chain of custody established even though testimony differed about how the evidence was delivered to the crime lab and to whom it was delivered).

       See Johnson v. State, 184 Ga. App. 745, 746 (1) (a) (362 SE2d 450) (1987).


author: Ellington, Judge.

text:
    A02A0958.
    CROOK v. RACETRAC PETROLEUM, INC.
    (570 SE2d 584)
   Ellington, Judge.

Denise Crook appeals from the grant of summary judgment to RaceTrac Petroleum, Inc. in this slip and fall premises liability case. The trial court determined that RaceTrac’s inspection program was reasonable as a matter of law and, therefore, it did not have constructive knowledge of the gas spill that caused Crook’s injuries. Because we find that a jury issue existed as to whether the inspection schedule was reasonable under the circumstances presented, we reverse and remand for further proceedings.

We review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law.

(Footnotes omitted.) Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (527 SE2d 36) (1999). Viewed in the light most favorable to Crook, the evidence showed that, on March 29, 2000, Valerie Dorsett went to her job at the RaceTrac service station in Stockbridge. As co-manager of the station, Dorsett was responsible for conducting inspections of the property every two hours. These inspections included checking the parking lot, picking up trash, cleaning up spills, restocking paper products, and similar tasks. At 4:00 p.m., she inspected the area around the gas pumps and saw no spills. At approximately 4:30 to 4:45 p.m., Dorsett went outside to smoke a cigarette on the side of the building. She did not conduct an inspection of the property at that time and, because she was smoking, did not go near the gas pumps. She testified, however, that she did not see a gas spill at that time.

Sometime between 5:00 and 5:30 p.m., Crook went to the station and parked near a gas pump. As she walked around her truck, she slipped and fell in a large puddle of gas, severely injuring her left knee. She filed a personal injury suit against the station. RaceTrac moved for summary judgment. The trial court granted the motion after finding that the company could not be charged with constructive knowledge of a hazard, since it had “reasonable inspection procedures in place that were followed at the time of this incident.” The trial court’s order, however, did not explain its implicit finding that the inspection program was reasonable as a matter of law.

On appeal, Crook contends the trial court erred when it granted RaceTrac’s motion for summary judgment, arguing that a jury issue exists as to whether RaceTrac’s two-hour inspection program was reasonable under the circumstances of this case. We agree and reverse the grant of summary judgment.

To prove negligence in a slip and fall premises liability case, the plaintiff must show (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it. [Crook] presented no evidence that [RaceTrac] had actual knowledge of the hazard which caused her fall. To establish constructive knowledge, [Crook] must show that (1) a [RaceTrac] employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by [RaceTrac] should have discovered it. Because no [RaceTrac] employees were in the immediate area when [Crook] fell, she must use the second method of proving constructive knowledge. Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its [reasonable] inspection procedures.

(Punctuation and footnotes omitted.) Shepard v. Winn Dixie Stores, 241 Ga. App. at 747-748 (1).

This Court has previously held that when the nature of a business is likely to produce a spill or other hazard, frequent inspections may be necessary, and the reasonableness of an inspection program is a question to be decided by the jury. Shepard v. Winn Dixie Stores, 241 Ga. App. at 748-749 (1).

The length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location.

(Footnote omitted.) Id. at 748 (1) (a jury should decide whether owners of a grocery store, where spills are common, should conduct inspections more often than every 30 minutes); Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (d) (498 SE2d 565) (1998) (inspections every 20 minutes in a fast food restaurant may be unreasonable).

In this case, Dorsett and another employee deposed that spills near the pumps were common and that there was at least one spill per shift. During some shifts, as many as 20 customers would report spills. Employees used a substance called “oil-dri” to soak up gas and oil spills, sometimes as often as ten times a day. These facts raise an issue about whether the frequent spills required RaceTrac to conduct inspections more frequently than every two hours.

Under these circumstances, we find that the reasonableness of RaceTrac’s inspection procedures was for the jury to determine. Shepard v. Winn Dixie Stores, 241 Ga. App. at 749 (1); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 471 (1) (b) (522 SE2d 749) (1999) (reasonableness of grocery store’s procedure for conducting inspections every two hours was for jury to determine); cf. Patrick v. Macon Housing Auth., 250 Ga. App. 806, 812-813 (552 SE2d 455) (2001) (inspection of laundry room every two hours was reasonable as a matter of law, since there had been no prior complaints about spilled water or slippery floors).

Decided July 29, 2002

Reconsideration denied August 27, 2002

John H. Ridley, Jr., for appellant.

Drew, Eckl & Farnham, George R. Moody, Tammy L. Tomblin, for appellee.

Judgment reversed.

Smith, P. J., and Eldridge, J., concur.


text:
    A02A1170.
    HARRIS v. JOHNSON.
    (570 SE2d 582)
   Ellington, Judge.

Leo Harris appeals the order of the Superior Court of Tattnall County granting summary judgment in favor of Janice D. Johnson on Harris’ complaint to set aside a 1987 award of year’s support in favor of Delia M. Harris. The appellant asserts several procedural infirmities with regard to the award of year’s support and ultimately seeks an ownership interest in a parcel of real estate included in the award. For the following reasons, we affirm.

On appeal from the grant of summary judgment, we conduct a de novo review of the record, construing the evidence in favor of the nonmovant. Zohoury v. Home Depot, 239 Ga. App. 454 (521 SE2d 389) (1999). “Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” (Citation omitted.) Id. See OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Citation and punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). If a defendant demonstrates that no evidence exists to create a jury issue on at least one essential element of plaintiff’s case, all other disputes of fact are rendered immaterial. Zohoury v. Home Depot, 239 Ga. App. at 454-455.

Viewed in the light most favorable to the appellant, the evidence showed the following: Grady Harris died intestate on January 24, 1987, survived by his widow, Delia Harris, and his 38-year-old adopted son, the appellant. Delia Harris filed an application for year’s support seeking to have certain assets of the estate set aside for her use. The application listed assets consisting of 103.7 acres of land in Tattnall County along with some vehicles and farm equipment. When no interested party filed an objection within the time allowed, the probate court granted Delia Harris’ application for year’s support and set aside all scheduled property.

On February 13, 1991, Delia Harris conveyed the real property to her daughter (who was also the appellant’s biological mother), Joyce S. Johnson. On September 6, 2000, Joyce S. Johnson died testate, leaving the real property to her daughter, the appellee Janice Johnson. Thereafter, the appellant filed his action seeking to set aside the award of year’s support.

The appellant contends the trial court erred in granting Johnson’s motion for summary judgment because he came forward with evidence that the award of year’s support was void on its face and therefore subject to attack under OCGA .§ 9-11-60 (a) or § 9-12-16, regardless of the lapse of time. The appellant suggested three grounds for finding the year’s support award void.

The appellant contends the probate court’s award was void on its face because the probate court failed to appoint appraisers as required by law. See Gentry v. Black, 256 Ga. 569, 571 (351 SE2d 188) (1987) (“[u]nder procedures contained in [former] OCGA § 53-5-2 (b), the probate judge appoints appraisers to determine the amount of the award”). Further, the appellant contends the probate court’s award was void on its face because the probate court set aside estate property exceeding the amount needed to support Delia Harris for one year and failed to consider the support available to her from other sources. See former OCGA § 53-5-2 (c). These arguments lack merit. “Where jurisdiction exists both of the subject matter and of the parties, as well as jurisdiction to make the particular order in question, an order is not void, but voidable, however erroneous or irregular it may be.” (Citation and punctuation omitted.) Golden Key Restaurant &c. v. Key Mgmt. Corp., 137 Ga. App. 251, 252 (2) (223 SE2d 284) (1976). Whether the probate court followed the proper procedure in determining the amount of the award has no bearing on whether the judgment lacks either personal or subject matter jurisdiction.

Finally, the appellant contends former OCGA § 53-5-2 (b) authorizes the probate court to set aside the entire estate only if the value of the estate is less than $1,600, and, therefore, the trial court exceeded its authority in setting aside Grady Harris’ entire estate, valued at approximately $100,000. As the Supreme Court of Georgia held long ago, this section means the entire estate must be set aside when the estate’s value does not exceed the statutory minimum (now $1,600), while the entire estate may, but is not required to, be set aside when the value of the estate exceeds the statutory minimum. Edwards v. Addison, 187 Ga. 756, 763 (3) (2 SE2d 77) (1938) (decided when statutory minimum was $500). Even assuming that the scheduled property represented the entire estate, the probate court did not exceed its authority in setting aside Grady Harris’ scheduled property on this basis.

Decided July 23, 2002

Reconsideration denied August 27, 2002

M. Francis Stubbs, for appellant.

Cheney & Cheney, Curtis V. Cheney, Jr., for appellee.

Because the appellant identified no basis for finding the award of year’s support was void, the appellant’s action to set aside the award of year’s support was untimely. OCGA § 9-11-60 (f). The trial court properly granted Johnson’s motion for summary judgment. Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 831 (490 SE2d 489) (1997).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       OCGA § 9-11-60 (a) provides: “A judgment void on its face may be attacked in any court by any person.” A judgment void on its face is one “which lackfs] either personal or subject matter jurisdiction.” Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993).

       OCGA § 9-12-16 provides: “The judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”

       See OCGA § 9-11-60 (f) (“A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. . . .In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of”).

       Because Deha Harris filed her application for year’s support on March 10, 1987, the former probate code applied to the probate court’s award. Ga. L. 1986, p. 1272, §§ 1, 9.


author: Phipps, Judge.

text:
    A02A1709.
    WATKINS v. HERETH et al.
    (570 SE2d 629)
   Phipps, Judge.

Robert Watkins filed this pro se action for damages against Colonial Gardens of Warner Robins, LLC and its president Jack Hereth. The trial court dismissed his complaint for failure to state a claim for which relief could be granted, and Watkins appeals. “A motion to dismiss for failure to state a claim should not be sustained unless the allegations of the complaint reveal, with certainty, that plaintiff would not be entitled to relief under any state of provable facts asserted in support thereof.” Although numerous issues are raised in the appeal, this case ultimately turns on the question of whether the allegations of the complaint state a claim for relief against Colonial Gardens and Hereth for tortious interference with an oral agreement between Watkins and Jerome and Caroline Buford. Answering that question in the negative, we affirm.

According to Watkins, Jerome and Caroline Buford owned an assisted living center which they sold to Colonial Gardens and Her-eth under an asset purchase agreement. Watkins alleges that the Bufords orally agreed to remit to him and his wife one-half of the proceeds from the sale of the center in consideration of services he and his wife had rendered to the center. At the closing of the center’s sale, Hereth executed a $230,000 promissory note in favor of the Bufords. Hereth later stopped making payments under the note and made a demand for arbitration under the asset purchase agreement, based on a claim that the Bufords had artificially inflated the purchase price for the center by failing to disclose the value of the services rendered by the Watkinses. The Bufords settled the arbitration proceeding by reducing the balance due on the note to $80,000.

Watkins claims that prior to the closing of the asset purchase agreement, Colonial Gardens and Hereth were fully aware of the services rendered by the Watkinses. Watkins maintains that in filing the arbitration proceeding and reducing the amount due under the promissory note, Colonial Gardens and Hereth conspired with the Bufords to deprive the Watkinses of the full amount of money they were entitled to under their oral agreement with the Bufords.

Under a line of cases represented by First Mtg. Corp. v. Felker, Kenimer v. Ward Wight Realty Co., and Wometco Theatres v. United Artists Corp., the court did not err in ruling that these allegations do not state a claim for relief against Colonial Gardens and Hereth.

Factually, Kenimer is most similar to this case. In Kenimer, a real estate agent’s contract of employment with a realty company entitled the agent to payment of commissions on a management contract between the realty company and an apartment owner. After the realty company and apartment owner cancelled the management contract by mutual consent, the real estate agent filed suit against the realty company and two of its directors. The agent claimed that the directors had induced the corporate defendant to cancel the management contract for the purpose of depriving the agent of the fees to which he was entitled. The question for decision was whether these allegations were sufficient to state a cause of action for damages for tortious interference with contractual relations. Answering that question in the negative, this court reasoned that

The [agent] was not a party to the contract between [the realty company] and the [apartment owner], and had no interest in said contract by assignment or otherwise. He was entitled under the allegations of the petition to a percentage of the income which inured to the realty company under its management contract with [the apartment owner]; but that right arose out of his employment contract with the realty company and not out of the management agreement. . . . The [agent] was a stranger or third party in relation to the management contract . . . , and cancellation of that contract by the mutual consent of the parties thereto could in no way affect the rights of the [agent] and the obligations of the defendant realty company under the contract of employment between those parties.

Decided August 27, 2002.

Clifton Boone, for appellant.

Friedman, Dever & Merlin, Douglas M. Robinson, for appellees.

Kenimer concluded that the failure of the realty company to pay the agent commissions to which he was entitled under the employment contract could only constitute a breach of that contract and would afford no basis for an action in tort against those who were not parties to the employment contract.

Here, as in Kenimer, Watkins was not a party to the contract, i.e., promissory note, between the Bufords and Hereth, and he had no interest in the note by assignment or otherwise. Watkins alleges in his complaint that he was entitled to a percentage of the money paid to the Bufords under the promissory note with Hereth. But that right arose out of the oral agreement between the Watkinses and the Bufords. The Bufords and Hereth were legally entitled to compromise their promissory note. Although Watkins may have a claim against the Bufords for breach of contract, he has no claim against Hereth or Colonial Gardens for tortious interference with contractual relations.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

        DeKalb County v. State of Ga., 270 Ga. 776, 779 (2) (512 SE2d 284) (1999).

       158 Ga. App. 14, 15 (1) (279 SE2d 451) (1981).

       109 Ga. App. 130 (135 SE2d 501) (1964).

       53 Ga. App. 509, 513 (2) (186 SE 572) (1936).

       109 Ga. App. at 133.


author: Ruffin, Judge.

text:
    A02A0907.
    McDANIEL et al. v. LAWLESS et al.
    (570 SE2d 631)
   Ruffin, Judge.

On January 17, 1999, Rodney Cravey shot and killed Mary Crapse in Peggy Lawless’s home. Aimee McDaniel, the executrix of Crapse’s estate, sued Lawless, alleging that Lawless knew of Cravey’s dangerous propensities, yet failed to inform Crapse of the danger and placed Crapse in a precarious position. Lawless moved for summary judgment, arguing that she could not be held liable because Cravey’s criminal acts were unforeseeable. The trial court granted Lawless’s motion, and this appeal ensued. For reasons that follow, we affirm.

To prevail on her motion for summary judgment, Lawless, as the moving party, must demonstrate that

there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed in this light, the record shows that Lawless and Crapse were best friends and next-door neighbors. In 1992, Cravey moved into the neighborhood. Lawless befriended Cravey and began to run errands for him because he was disabled. Lawless also met Cravey’s daughter, who told Lawless that Cravey was “mean” when he drank and had been abusive toward his ex-wife, “knocking her teeth out” on one occasion. At some point, Lawless became less friendly with Cravey. According to Lawless’s deposition testimony, Cravey began drinking, which made her uncomfortable.

On January 17, 1999, while Lawless was working in her yard, Cravey drove his truck up Lawless’s driveway. Evidently, Cravey had been drinking. Before Cravey could get out of his truck, Crapse intercepted him and physically prevented him from opening the door. Lawless heard Crapse say, “Mr. Cravey, what are you doing down here like that? Now, you just need to get yourself home.” Cravey then glared at Crapse before driving off.

Later that same day, Crapse went to Lawless’s house, and they sat and talked. The front door was open, and the two were visible through the clear storm door. As Lawless got up to take dishes to the kitchen, she heard a thump at the front door and saw Cravey knocking with his crutch. Crapse, who also saw Cravey, went to the door. Lawless continued cleaning for approximately 20-30 minutes while Crapse spoke with Cravey. Lawless testified that she heard Crapse repeatedly tell Cravey, “[w]e’ll be glad to talk to you when you’re sober.” Crapse did not, however, open the storm door. Eventually, Lawless went and stood near the door. Cravey then suddenly opened fire on the house, shooting Crapse in the back and Lawless in the arm.

Lawless and Crapse were taken to the hospital where they were interviewed by Jimmy Black, an investigator with the Jones County Sheriff’s Department. Black was unable to obtain much information from Crapse due to the severity of her condition. Crapse subsequently died as a result of her injuries.

McDaniel sued Lawless, alleging that she “negligently invited Mary Crapse to her home shortly after receiving a threat of violence from Rodney Cravey, a person known to Defendant Lawless to have a propensity for violence,” failed to inform Crapse of the danger, and sent Crapse to the front door when Cravey showed up. Lawless moved for summary judgment, arguing that she could not be held liable because Crave/s criminal act was not foreseeable.

As a social guest of Lawless, Crapse “was a licensee to whom [Lawless] owed the duty not to injure . . . wilfully and wantonly.” In addition, Lawless was required “to exercise ordinary care to protect [Crapse] from unreasonable risks of which she [had] superior knowledge, and if she [had] reason to anticipate criminal acts, she [had] the duty to exercise ordinary care to guard against injury caused by dangerous characters.” This duty extended only to those criminal acts that were foreseeable. Any prior event that is relied upon to establish foreseeability must be “substantially similar,” but not identical, to the subsequent criminal act. In determining whether a criminal act is foreseeable,

[t]he test is whether the prior criminal activity was sufficiently and substantially similar to demonstrate [Lawless’s] knowledge that [Cravey’s dangerous propensities] subjected [Crapse] to unreasonable risk of criminal attack so that [Lawless] had reasonable .grounds to apprehend that the present criminal act was foreseeable.

The evidence showed that Lawless knew that Cravey could be “mean” when he was drinking and that he struck his wife, knocking her teeth out. But the mere fact that Cravey was mean or had punched someone in the past does not put others on notice that he is prone to deadly violence with a handgun. The exercise of ordinary care simply does not create “a duty to anticipate unlikely, remote, or slightly possible events.” Thus, absent some competent evidence that Lawless knew or had reason to believe that Cravey was capable of potentially deadly violence, summary judgment is appropriate.

On appeal, McDaniel contends that such competent evidence is found in the police report which Investigator Black attached to his affidavit. In this report, Black noted that he had spoken with William Kidd, a friend of Lawless’s, who had “stated that, according to [Lawless, Cravey] had shot one other person in the past, and . . . [that Cravey] owned a .357 pistol.” According to McDaniel, this police report is admissible as substantive evidence under the business record exception to the hearsay rule.

This exact issue was recently addressed by our Supreme Court in Brown v. State. The Court concluded “that the narratives contained in police reports generated in connection with police investigations are not the appropriate subject of an exception to the hearsay rule.” Accordingly, the trial court correctly ruled the report inadmissible. And, as hearsay, the statement must be eliminated from consideration of the motion for summary judgment. Because the record contains no competent evidence that Lawless knew or had reason to believe that Cravey was capable of potentially deadly violence, the trial court properly granted Lawless’s motion for summary judgment.

Decided August 28, 2002.

Buzzell, Graham & Welsh, Neal B. Graham, David C. Bowers, Jr., for appellants.

Walker, Hulbert, Gray, Byrd & Christy, Michael G. Gray, Shaffer, Raymond & Dalton, Kevin P. Bradley, for appellees.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       McDaniel also sued Cravey’s estate and the unknown individual who sold Cravey the firearm. As these parties are not involved in this appeal, we do not address the claims against them on appeal.

       (Citation, punctuation and emphasis omitted.) Traicoff v. Withers, 247 Ga. App. 428 (544 SE2d 177) (2000).

      . According to McDaniel, Crapse told her that Lawless asked Crapse to answer the door. Pretermittirig whether this testimony is admissible under the necessity exception to the hearsay rule, it does not change our analysis. See Clark v. State, 271 Ga. 6, 9-10 (5) (515 SE2d 155) (1999).

       Evidently, Cravey subsequently committed suicide.

        Stewart v. Harvard, 239 Ga. App. 388, 392 (2) (520 SE2d 752) (1999).

       (Punctuation omitted.) Aldridge v. Tillman, 237 Ga. App. 600, 603 (2) (516 SE2d 303) (1999).

       See id. at 604.

       Id.

       Id.

       In her affidavit, Lawless averred that she had no knowledge that “Cravey had ever threatened or harmed any other person.” At her deposition, however, she contradicted this statement and testified that she knew about Cravey’s violence toward his wife. On summary judgment, we construe the contradictory testimony against Lawless. See Williams v. Park Walk Apts., 253 Ga. App. 429, 430 (559 SE2d 169) (2002).

       See Traicoff, supra at 430 (knowledge that person is “mean” does not render deadly attack by that person foreseeable).

       (Punctuation' omitted.) Id.

       See Aldridge, supra.

       274 Ga. 31 (549 SE2d 107) (2001).

       Id. at 33 (1).

         See Sherrill v. Stockel, 252 Ga. App. 276, 278 (557 SE2d 8) (2001).

       See Aldridge, supra.


text:
    A02A0985.
    DICKEY v. THE STATE.
    (570 SE2d 634)
   Ruffin, Judge.

Victor Dickey was indicted for theft by taking over $160,000 from his employer. Pursuant to a negotiated plea agreement, the trial court sentenced Dickey to ten years probation, with several conditions attached, including payment of restitution. When Dickey violated the restitution order, the court revoked his probation. We granted Dickey’s application for discretionary review of the revocation order, and for reasons that follow, we affirm.

The record contains a copy of Dickey’s plea agreement with the State. Under the agreement, Dickey acknowledged that he was aware of his rights and that he was pleading guilty in exchange for a specified sentence recommendation by the district attorney. Specifically, Dickey agreed to a sentence of ten years in jail, which would be probated if he served 90-120 days in a detention center, performed 200 hours of community service, and paid

restitution in the amount of $160,878.08, as follows: The sum of $100,000.00 shall be paid no later than August 15, 2001; [t]he balance of $60,878.08 shall be paid in 78 equal, consecutive monthly installments upon the Defendant’s release from incarceration, with all sums being due and payable no later than June 1, 2008; and [i]t is understood and agreed that the victim . . . is to be made whole to the extent of its losses, $160,878.08.

The agreement also states that it was freely and voluntarily executed by Dickey after he consulted with his attorney. Upon accepting his plea, the trial court sentenced Dickey in accordance with the plea agreement.

When August 15 arrived, Dickey had paid only $2 in restitution, and his probation officer petitioned the court to revoke or modify his probation. At the revocation hearing, Dickey stipulated that he had not paid restitution as required by the agreement. In arguing for revocation, the assistant district attorney informed the court that the restitution offer contained in the agreement was made by Dickey, and that “the State was led to believe that through family efforts some one hundred thousand dollars was being raised and would be paid by August the 15th.” Dickey’s counsel responded that restitution was not paid because Dickey “was locked up and unable to pay this money” and argued that “the Court is not permitted to revoke probation based on the inability to pay.” Rejecting Dickey’s argument, the trial court revoked his probation and required him

to serve 2 years t in a GA Dept, of Corrections Probation Detention Center, or such other place as the Commissioner of Corrections may direct. . . . Upon completion of [the] Detention Center sentence, he is to continue on Probation and be placed in a GA Department of Corrections Diversion Center until his Restitution is paid in full. He is not to be released from custody between his completion of the [time served in the Probation Detention Center] and placement in the Diversion Center.

1. Dickey asserts that, based on the United States Supreme Court’s decision in Bearden v. Georgia, the trial court erred because the revocation was based on his failure to pay the restitution, and there was no evidence that this failure was wilful. We disagree.

In Bearden, the Court addressed the due process and equal protection concerns of imprisoning an individual for nonpayment of a fine or restitution. The Court recognized that differential treatment of indigent defendants in revoking probation may violate the equal protection clause and that the fundamental unfairness of revoking probation based on an indigent’s failure to pay a fine raises due process concerns. Thus, “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” Conversely, however, nothing precludes the state from imprisoning a defendant who wilfully refuses to pay a fine or restitution. The critical factor under Bearden is the reason for nonpayment. If the probationer is without fault, revocation is inappropriate.

In this case, Dickey was not without fault. When he agreed to the plea bargain, Dickey entered into a contract. At the time, Dickey knew that he would be required to pay $100,000 of restitution by August 15, 2001. Dickey also knew, better than the assistant district attorney and the trial judge, whether he had the ability to make this payment. If Dickey had any doubt concerning his ability to make the payment, he should have informed the other parties before everyone agreed to the terms. There is no evidence that he did so. Dickey’s silence, when he should have spoken, and his ultimate breach, make him culpable. He was not without fault.

Moreover, this case is distinguishable from Bearden. The Court’s opinion in Bearden reflects that the trial court unilaterally imposed the probated sentence, fines, and restitution as an alternative to incarceration. Here, Dickey negotiated and agreed to his probated sentence and the payment of restitution to avoid incarceration. To date, neither a Georgia appellate court nor the United States Supreme Court has addressed the question of whether probation may be revoked for failure to make restitution, where the restitution requirement was bargained for by the probationer. Other jurisdictions, however, have addressed this issue.

Several jurisdictions have relied on principles of contract law. For instance, in Sichenzia v. Supreme Court, Suffolk County, the court characterized the defendant’s plea agreement, which included a restitution provision, “as a binding agreement between the government and the defendant.” In distinguishing Bearden, the court observed that, while Bearden

involved a sentence involuntarily imposed by the court upon the defendant, the instant case involves a consensual plea agreement. This distinction is crucial. The defendant in Bearden did not elect probation and restitution in lieu of a prison sentence. Rather, the trial court decided that the state’s interest in punishment did not require incarceration.

Thus, where the sentencing court makes such a determination, a probationer cannot be deprived of his freedom solely because he was unable to pay the restitution. But, the court concluded, when a probationer secures his freedom by negotiating an agreement that requires restitution, upon his failure to comply, a court may properly sentence him according to the terms of the agreement.

Other courts have reached similar results. In Commonwealth v. Payne, the court observed that the defendant was “offered the privilege of making restitution as part of a plea bargain, with the express condition that, should he not hold up his end of the bargain, a sentence of incarceration would be imposed.” When the defendant entered the agreement, the court held that he tacitly represented that he could pay the restitution. Thus, the court concluded, the defendant was not incarcerated because of his poverty, but because he failed to comply with his agreement.

Likewise, in Patton v. State, where the defendant failed to pay restitution required by a plea agreement, the court observed that “[t]he concept of [a] plea bargain contemplates an explicit agreement between the State and defendant which is binding upon both parties when accepted by the trial court.” Thus, the court reasoned, when a defendant “pleads guilty pursuant to a plea agreement, he knowingly and voluntarily recognizes and admits that the sentence is manifestly fair.” In rejecting the defendant’s claim that , his probation should not be revoked due to his failure to pay restitution, the court found that, “[a]t the time [he] accepted the benefits of the plea bargain, which included dismissal and abstention from filing of heavier felonies, he knew better than anyone whether he had the ability to raise the money, and the risk he ran if he did not.”

In this case, we can discern no reason why Dickey should be entitled to the benefit of a probated sentence when he breached his agreement with the State. Again, unlike Bearden, Dickey was not involuntarily sentenced by the court to pay a fine as a condition of probation. Dickey negotiated payment of restitution to avoid what likely would have been significant time in prison. Having breached the plea agreement that he negotiated, Dickey cannot now insist that he remain on probation and be excused from performance due to indigence. As pointed out by the court in State v. Caballero, “[t]o hold otherwise would permit defendants, either in good or bad faith, to bargain for payment of a fine in exchange for a suspended sentence, renege, and then avoid incarceration or any other punishment for the offense committed.” We do not believe the Bearden Court intended such result. Accordingly, we find no merit in Dickey’s argument that Bearden required the trial court to find he wilfully refused to pay restitution before it revoked his probation.

2. Dickey also asserts that the trial court erred in revoking more than two years of his probation because the revocation stemmed from his failure to pay restitution, which was a general condition of probation. The State responds that the restitution requirement was a special condition of probation and that the trial court was, therefore, authorized to revoke the entire balance of Dickey’s probation under OCGA § 42-8-34.1 (e). Pretermitting whether the restitution requirement was a general or special condition, we find that the trial court did not revoke more than two years of Dickey’s probation. The court’s order states that after the initial two-year revocation period, Dickey is to continue his probation in a diversion center. Time served on probation in a diversion center does not equate to time served in confinement. Thus, this argument is without merit.

3. Finally, Dickey argues that the trial court’s application of OCGA § 42-8-34.1 in revoking his probation operated as an ex post facto law. But Dickey has not shown that he raised this argument below, and it is, therefore, waived on appeal.

Decided August 28, 2002

Kicklighter & Persse, Robert L. Persse, for appellant.

R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983).

       Id. at 665-666.

       See id.

       Id. at 667-668 (II).

       See id. at 668.

       Id. at 668-669.

       See Gilbert v. State, 245 Ga. App. 544, 546 (1) (538 SE2d 104) (2000).

       See id.

       See Bearden, supra, 461 U. S. at 662.

       No. CV-89-4348,1990 U. S. Dist. LEXIS 1582, at *9 (E.D. N.Y. February 9,1990).

       Id. at *11-12. See also United States v. Johnson, 767 FSupp. 243, 247-248 (N.D. Ala. 1991) (distinguishing Bearden on. ground that “Johnson’s restitution obligations were carefully bargained for after notice to the victims,” and concluding that, “[t]o allow [the defendant] now to continue as a probationer without paying her victims would simply be to abrogate or sweep the plea agreement under the rug, and to overlook what, in retrospect, amounts to a fraud on the court [and the victims]”).

       See Sichenzia, supra at *12.

       See id. at *12-13. See also Polk v. Commonwealth, 622 SW2d 223, 225 (Ky. App. 1981) (“appellant made a firm commitment as a condition to his probation that a certain sum would be paid rather than his going to prison. This is a different situation from a fine imposed by a court. It was the understanding of all parties concerned that if the conditions of probation were not met, the probation would be revoked. Indigency has no application here.”).

       33 Mass. App. Ct. 553, 557 (602 NE2d 594) (1992).

       See id.

       See id.

       458 NE2d 657 (Ind. App. 1984).

       (Punctuation omitted.) Id. at 659.

       Id. at 660.

       Id.

       See Gilbert, supra.

       464 S2d 939, 943 (La. App. 1985).

       See OCGA § 42-8-34.1 (c) (Supp. 2001) (limiting sentence to two years confinement for violation of a general condition of probation other than commission of a new felony offense).

       (Supp. 2001).

       See Penaherrera v. State, 211 Ga. App. 162 (438 SE2d 661) (1993).

       See Dorsey v. State, 251 Ga. App. 640, 642 (2) (554 SE2d 278) (2001).