Jamie Sullivan v. State ( 2023 )

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
December 28, 2023
In the Court of Appeals of Georgia
A23A1600. SULLIVAN v. THE STATE.
RICKMAN, Judge.
Following Jamie Sullivan’s failure to attend an inpatient drug treatment
program, the trial court revoked the balance of his ten-year suspended sentence for two
counts of possession of a firearm by a convicted felon. On appeal, Sullivan contends
that the trial court erred in revoking the entire balance of his suspended sentence
because the basis for the revocation was not a special condition of his sentence. For the
reasons that follow, we reverse and remand for resentencing.
In March 2021, Sullivan pled guilty to two counts of possession of a firearm by
a convicted felon. He was sentenced to concurrent ten-year sentences, to serve six
months in confinement and the balance suspended. As part of the plea agreement,
Sullivan agreed, inter alia, that upon his release from jail, he would enter inpatient drug
and alcohol treatment for three months at his expense.1 When Sullivan failed to enter
a treatment program after his release, the State filed a motion to impose the balance
of Sullivan’s suspended sentence. At the hearing on the State’s motion, Sullivan’s
counsel admitted that his client had not attended an inpatient drug treatment program
for a minimum of three months but argued that such attendance was only a general
condition of his suspended sentence and that Sullivan could only be required to serve
a maximum of two years for violating it. During the hearing, the trial court concluded
that entry into a treatment program was a special condition and ruled that it was going
to impose the original sentence. The trial court subsequently entered an order
imposing the balance of Sullivan’s suspended sentence, and this appeal followed.
Sullivan contends that the trial court was only authorized to impose two years
of his original ten-year suspended sentence because the violation involved a general,
rather than a special, condition of suspension. We agree.
The conditions for revocation of a probated or suspended sentence are set forth
in OCGA § 42-8-34.1. Upon proof that a defendant has violated any general provision
of suspension other than by commission of a new felony offense, the court may revoke
1
The trial court allowed Sullivan up to 30 days from his release to begin the
program.
2
the balance of the suspended sentence “or not more than two years in confinement,
whichever is less.” OCGA § 42-8-34.1 (c). If, however, a defendant violates “a special
condition of . . . suspension of the sentence, the court may revoke the . . . suspension
of the sentence and require the defendant to serve the balance or portion of the balance
of the original sentence in confinement.” OCGA § 42-8-34.1 (e). A special condition
of a suspended sentence is a condition that
(1) Is expressly imposed as part of the sentence in addition to general
conditions of probation and court ordered fines and fees; and (2) Is
identified in writing in the sentence as a condition the violation of which
authorizes the court to revoke the probation or suspension and require
the defendant to serve up to the balance of the sentence in confinement.
OCGA § 42-8-34.1 (a). Thus, Georgia law authorizes a trial court to revoke the entire
balance of a defendant’s suspended sentence only where the defendant has violated a
special condition of suspension or the balance of the suspended sentence is two years
or less.
The State argues that Sullivan violated a special condition of his suspended
sentence when he failed to enter a treatment program because the trial court orally
informed Sullivan that a violation would result in him serving time in the penitentiary
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and intended for the condition to be special. At the plea hearing, the trial court did
inform Sullivan that if he were to be refused entry into an inpatient treatment program
for recent drug use, then the “suspended sentence becomes unsuspended and you
have to go off and do some time in the penitentiary.” That statement did not inform
Sullivan that violation of the condition would authorize the court to revoke the
suspension and require him to serve up to the balance of his original sentence in
confinement, and even if it had, “an oral advisement does not amount to substantial
compliance with a statute that requires something to be identified in writing in the
sentence.”2 (Citations and punctuation omitted.) Sheppard v. State, 319 Ga. App. 813,
815 (738 SE2d 662) (2013); see also Gardner v. State, 259 Ga. App. 375, 378 (1) (577
SE2d 69) (2003) (Trial court’s “oral representation at the revocation hearing does not
comply with the express legislative provision that the revocation sentencing sheet
reflect in writing that failure to successfully complete the drug court program
authorizes the court to revoke the probation or suspension and require[] the defendant
to serve up to the balance of the sentence in confinement.”) (citation, punctuation,
2
We find unpersuasive the State’s argument that the failure to identify the
condition in writing in the sentence was a mere scrivener’s error. Cf. Williams v. State,
363 Ga. App. 594, 600 (3) (872 SE2d 14) (2022) (“Clerical mistakes in judgments may
be corrected by the court at any time[.]”) (citation and punctuation omitted).
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and emphasis omitted). As a result, the revocation of more than two years of Sullivan’s
suspended sentence was prohibited. See Harvey v. Meadows, 280 Ga. 166, 170 (3) (626
SE2d 92) (2006); Gardner, 259 Ga. App. at 379 (1).
The State also argues that any error in failing to include the condition at issue
in writing in the sentence was harmless because there was no evidence that Sullivan
would have acted differently if he had been warned that his entire suspended sentence
could be revoked if he failed to enroll in a drug treatment facility. We find no merit in
that argument as Sullivan was entitled to rely on the provisions set forth in the
sentencing document, which contained no warning that a violation of any condition
would authorize the court to revoke the suspension and require him to serve up to the
balance of the sentence in confinement. In this situation, the trial court was not
authorized to revoke more than two years of Sullivan’s suspended sentence, and its
error in doing so was not harmless. See Stephens v. State, 245 Ga. 835, 838 (268 SE2d
330) (1980) (Because the trial court was not authorized to increase the defendant’s
sentence when the probation was revoked, the error is not harmless). We must
therefore remand the case for resentencing under OCGA § 42-8-34.1 (c). See Gardner,
259 Ga. App. at 379 (1).
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Judgment reversed and case remanded for resentencing. Dillard, P. J., and Pipkin,
J., concur.
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