Hollie v. State , 287 Ga. 389 ( 2010 )

696 S.E.2d 642 (2010)

HOLLIE
v.
The STATE.

No. S09G1578.

Supreme Court of Georgia.

June 28, 2010.

Mark Allen Yurachek, Atlanta, for appellant.

Daniel J. Porter, District Attorney, Jimmie E. Baggett, Jr., Asst. Dist. Atty., Gwinnett Justice & Administration Center, for appellee.

HUNSTEIN, Chief Justice.

We granted certiorari to address the propriety of the Court of Appeals' holding that the trial court did not err by making Jim Phillip Hollie's registration as a sex offender a special condition of his probation. Hollie v. State, 298 Ga.App. 1(3), 679 S.E.2d 47 (2009). For the reasons that follow, we affirm.

Hollie was indicted in December 2005 on charges of aggravated child molestation, aggravated sexual battery and child molestation (four counts) arising out of events that occurred in July 2005. He was convicted of all charges and sentenced in February 2007 under the version of OCGA § 16-6-4 then in effect to 30 years, to serve 15 in confinement. Additionally, the sentence provided as a special probation term that Hollie "must register as a sex offender as required by [OCGA § 42-1-12]. The defendant is required to review the requirements of this statute with the Probation Department."

1. It is well established that, as part of the broad discretion vested in trial judges by the probation and suspension statutes in Georgia, the appellate courts will approve "any reasonable condition imposed for probation" of sentence by the trial court "[i]n the absence of express authority to the contrary." State v. Collett, 232 Ga. 668, 670, 208 S.E.2d 472 (1974). See also Walker v. Brown, 281 Ga. 468(1), 639 S.E.2d 470 (2007); Pitts v. State, 206 Ga.App. 635, 637(3), 426 S.E.2d 257 (1992). OCGA § 42-1-12 contains no language expressly prohibiting a superior court from imposing sex offender registration as a probation condition. Nor do we interpret OCGA § 42-8-35(b), which sets forth certain enumerated terms and conditions of probation that may be imposed on persons like Hollie who commit criminal offenses which come within OCGA § 42-1-12,^[1] as being exclusive in its provisions but rather recognize that the trial court has broad discretion to impose appropriate conditions not specifically listed therein. See generally State v. Pless, 282 Ga. 58, 646 S.E.2d 202 (2007); Priest v. State, 261 Ga. 651(2), 409 S.E.2d 657 (1991). Accordingly, we find no merit in Hollie's argument that the trial court here was not authorized to make sex offender registration a special condition of probation.^[2]

2. Hollie argues that, because registration as a sex offender is for a lifetime, the designation of sex offender registration as a special condition of probation exceeds the maximum penalty for his February 2007 conviction. Hollie's lifetime registration is required by the sex offender registration statute. See former OCGA § 42-1-12(g)(2), effective July 1, 2005, Ga. L.2005, p. 453, § 1 et seq./HB 106; see also current OCGA § 42-1-12(f)(7).^[3] The period of time to which Hollie is subject to registration as a special condition of probation, however, is governed by OCGA § 42-8-34(c) (the period of probation or suspension "shall not exceed the maximum sentence of confinement which could be imposed on the defendant"); see Allen v. State, 286 Ga. 392(2), 687 S.E.2d 799 (2010) (Legislature in OCGA § 42-8-34(c) limited probation period to maximum sentence of imprisonment or period of incarceration) and by OCGA § 17-10-1(a)(1) (sentencing judge "shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime"), under which "``(t)he conditions of probation cannot exceed the length of the sentence.'" (Footnote omitted.) Kaiser v. State, 275 Ga.App. 684, 686(2), 621 S.E.2d 802 (2005) (holding void special condition of probation that prohibited Kaiser from ever practicing medicine). Thus, sex offender registration as a special condition of probation does not exceed the maximum penalty for Hollie's conviction inasmuch as his obligation to comply with the registration requirements after the completion of his sentence would be governed solely by OCGA § 42-1-12.

3. Contrary to Hollie's argument, the Court of Appeals correctly recognized that current law does not deem registration as a sexual offender to be punishment. See, e.g., Rainer v. State of Ga., 286 Ga. 675(1), 690 S.E.2d 827 (2010).

Judgment affirmed.

All the Justices concur.

NOTES

[1] OCGA § 42-8-35(b) became effective January 1, 2005. Ga. L.2004, p. 761, § 4.

[2] Due to the nature of Hollie's convictions, it is uncontroverted that he is expressly subject to the sex offender registration requirements. We decline to address Hollie's hypothetical arguments regarding the failure of OCGA § 42-1-12 to set forth the official responsible for determining whether an individual must register as a sex offender in those cases involving offenses not specifically identified in the statute.

[3] As noted above, Hollie was convicted of felony aggravated child molestation, which was defined as a "sexually violent offense" under former OCGA § 42-1-12(a)(7) and is currently defined as a "dangerous sexual offense" under OCGA § 42-1-12(a)(10)(A)(ix).