State v. Pless , 282 Ga. 58 ( 2007 )

Thompson, Justice.

We granted certiorari to the Court of Appeals in Pless v. State, 279 Ga. App. 798 (633 SE2d 340) (2006), to determine whether the General Assembly intended to eliminate the authority of trial courts to order restitution of court-appointed attorney fees when it passed the Georgia Indigent Defense Act of 2003. We answer in the negative and we reverse the judgment of the Court of Appeals to the extent that it held otherwise. Id. at 804 (6).

Christopher Pless was charged by accusation with three counts of violating Henry County animal control ordinances; he was tried by a jury and found guilty as charged. Pless was sentenced to one day in jail plus 59 days on probation for the first offense, and 60 days on probation for each of the two remaining offenses. Among other conditions of probation, Pless was ordered to pay $1,226 in restitution to Henry County for the services of his court-appointed trial counsel. When imposing sentence, the trial court inquired whether Pless was able to pay the costs or whether it would be necessary for him to satisfy the indebtedness by performing community service. Pless’ attorney responded, ‘Yes, Your Honor, he will be able to pay it.” There was no objection to the restitution requirement.

Pless was represented by new counsel on motion for new trial and a claim of ineffective assistance of trial counsel was asserted. Trial counsel’s failure to object to the restitution requirement was not raised within the context of the ineffective assistance claim or otherwise within the motion for new trial. After Pless’ motion for new trial was denied, he appealed his convictions to the Court of Appeals. Again, Pless did not challenge the trial court’s authority to order restitution of his court-appointed attorney fees. Nonetheless, the Court of Appeals addressed the issue sua sponte despite the lack of an objection below and despite Pless’ failure to enumerate the issue as error on appeal.¹ In so doing, the Court of Appeals reversed the restitution portion of the sentence holding that the trial court was without legal authority to order reimbursement of attorney fees. The Court of Appeals set forth the rationale for its ruling, as follows:

the governing statute [former OCGA § 17-12-10 (c) which expressly allowed a court to order reimbursement of attorney fees] was struck prior to trial and its replacement [Georgia Indigent Defense Act of 2003, OCGA § 17-12-1 et seq., effective December 31, 2003] does not contain any provisions authorizing a trial court to order a defendant to reimburse his court-appointed attorney fees.

Pless, supra at 804 (6).²

The State moved for reconsideration seeking reinstatement of the trial court’s order requiring restitution of court-appointed counsel’s fees as a condition of probation. First, the State argued that Pless waived the issue by his failure to object below, and alternatively, that the trial court was authorized by law to order such restitution. The Court of Appeals addressed and rejected the State’s contentions in an addendum to the opinion, and denied the motion for reconsideration. The court reasoned that because the trial court lacked authority to order restitution, “that portion of the sentence was void and a nullity,” and may be declared so “regardless of a lack of objection in the trial court.” Pless, supra at 805.

Our first inquiry is whether the trial court correctly ordered restitution of court-appointed attorney fees; if so, there is no basis to declare the sentence void, and in the absence of a contemporaneous objection below, the restitution issue was not preserved for appellate review. See State v. Larocque, 268 Ga. 352 (489 SE2d 806) (1997) (in order to preserve a point of error for review, counsel must make a proper objection on the record at the earliest possible time); Fair v. State, 281 Ga. App. 518 (2) (636 SE2d 712) (2006).³

Although former OCGA § 17-12-10 (c) expressly allowed a trial court to order reimbursement to the county for the costs of a court-appointed attorney when a defendant is able to pay such costs, that provision was eliminated with enactment of the Georgia Indigent Defense Act of 2003, effective January 1, 2004. The Court of Appeals correctly noted that OCGA § 17-12-10 (c) was no longer in effect at the time of Pless’ sentencing on May 17, 2005; nonetheless, the court went on to conclude that repeal of the specific statute absolutely extinguished the trial court’s authority to order reimbursement of the costs of legal representation.

It is well settled that

[t]he probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement.

State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974). OCGA § 42-8-35 vests the sentencing court with the general power to impose reasonable conditions of probation. While that Code section sets forth certain enumerated conditions, those provisions are not exclusive and “the court has authority to impose restrictions not specifically listed therein.” (Punctuation omitted.) Kellam v. State, 271 Ga. App. 125, 126 (608 SE2d 729) (2004).

Granted that the reimbursement provision was not included in the Indigent Defense Act, we have not been directed to any express authority which would preclude the trial court from ordering restitution of attorney fees as a reasonable condition of probation under OCGA § 42-8-35. Indeed, the Court of Appeals acknowledged that “the authority could have been interpreted as being available under the general statute [OCGA§ 42-8-35] and associated court decisions,” Pless, supra at 809, but nonetheless declined to validate that authority. Pless argues that the legislative intent to eliminate the authority must be presumed in light of the deletion of OCGA§ 17-12-10 (c) from the 2003 Act. In contrast, the State relies on a subsequent act of the legislature, Ga. L. 2006, p. 710, § 6/SB 203, wherein the General Assembly amended the Indigent Defense Act, effective July 1, 2006, by adding Article 3A which sets forth a scheme whereby a trial court may impose as a condition of probation “repayment of all or a portion of the cost for providing legal representation and other expenses of the defense” to the state, county or municipality, respectively. OCGA § 17-12-51 (a)-(c). But our conclusion that the trial court retained the general authority to order reimbursement of attorney fees during the period from 2003 to 2006 is derived from authority of this Court granting broad powers to sentencing courts under OCGA § 42-8-35, unless expressly prohibited.

Having concluded that the trial court properly sentenced Pless to reimbursement of costs of his legal representation as a condition of probation, that aspect of the sentence was not a nullity. Therefore, the issue was not properly before the Court of Appeals and there was no authority for the court to address it sua sponte. See Hess Oil & Chemical Corp. v. Nash, 226 Ga. 706 (177 SE2d 70) (1970).

Judgment reversed.

All the Justices concur, except Sears, C. J., who dissents.

1 In a related enumeration of error, however, Pless argued that the trial court erred in imposing fines and ordering restitution of court-appointed attorney fees “without first making specific findings of fact as to [his ability to pay].” The Court of Appeals summarily rejected that argument, noting: “Pless represented to the [trial] court that he had sufficient means to pay this amount.” Pless, supra at 804.

2 Pless' convictions were affirmed on all other grounds asserted.

3 We note that the holding of the Court of Appeals in Fair, supra, is in direct conflict with its holding in Pless, supra, entered four months earlier.