Department of Transportation v. Brooks

Hill, Chief Justice,

concurring.

I concur in the opinion of the court. I write to point out an additional aspect of Case No. 42127, the Shepherd appeal. The trial court found the Shepherd/DOT contract to be void because, at the time it was entered into, Shepherd was in violation of the record-keeping provisions of the Probationary Agreement and in default in making the third installment of the court-ordered restitution. However, the Probationary Agreement was between DOT and Shepherd, and DOT could insist on, or waive, the record-keeping provisions.

The restitution was court-ordered, but that court order did not provide that failure to make timely restitution payments, would preclude Shepherd from entering into other contracts with DOT. In effect, the trial court’s order voiding the Shepherd/DOT contract retroactively added conditions to Shepherd’s court-ordered probation, to wit: You will keep records as required by your Probationary Agreement with DOT; you will make restitution payments on time; and if you fail to do so, any contracts entered into with DOT will be void.

A court may not add conditions to court-ordered probation, make such conditions apply retroactively, then find that such conditions were not complied with and impose sanctions for their breach. See Huff v. McLarty, 241 Ga. 442 (246 SE2d 302) (1978); England v. Newton, 238 Ga. 534 (233 SE2d 787) (1977); Harrell v. State, 162 Ga. App. 111 (2) (290 SE2d 213) (1982).

For this additional reason, I join the judgment in Case No. 42127. As for Case No. 42126, DOT was not on probation.