Martin v. State

369 Ga.App. 193

892 S.E.2d 826

MARTIN v. The STATE.

A23A1138

Court of Appeals of Georgia.

September 15, 2023

Leslie Spornberger Jones, for Appellant.

George R. Christian, District Attorney, Suzanne M. Boykin, Assistant District Attorney, for Appellee.

Markle, Judge.

After the trial court revoked Rodney Oliver Martin's first offender status and denied his motion for discharge, Martin appealed, arguing that the trial court erred by revoking his status because he had already completed his term of probation. For the reasons that follow, we reverse the trial court's order revoking probation, and remand the case with direction to discharge Martin.

"Because this appeal presents only questions of law, we perform a de novo review of the trial court's order." (Citation and punctuation omitted.) Kinsey v. State , 350 Ga. App. 317, 318, 829 S.E.2d 398 (2019).

The facts of this case are undisputed. In 2017, Martin entered nolo contendere pleas to two counts of terroristic threats, and he was sentenced as a first offender to five years’ probation. ¹ Per the special conditions of his probation, Martin was to have no contact with his victims, complete drug testing and community service, pay a fine, and participate in family violence intervention, and he was barred from the area near his victims’ home. The trial court later modified Martin's sentence at his request so that his probation would terminate after two years if he did not commit any new violations.

In 2019, the State filed a petition alleging that Martin violated his probation by possessing marijuana and contacting his victims. After Martin admitted the allegations, the trial court withheld adjudication and continued his probation, ordering him to serve 60 to 90 days in a probation detention center. ²

The following year, the State filed another revocation petition, alleging that Martin violated his probation by testing positive for drugs and failing to pay all court ordered monies. Martin again admitted the allegations, and the trial court continued his probation and ordered that Martin retain his first offender status.

In May 2022, the State served Martin with another petition to revoke his probation, alleging that he had tested positive for drugs, engaged in contact with his victims, and entered the area from which he was barred. Unlike the previous petitions, this one was not filed with the trial court. Martin appeared at an initial hearing and denied the allegations, and the trial court set an evidentiary hearing to consider the allegations in the revocation petition. ³ It appears that, during that initial hearing, the trial court may have received a copy of the revocation petition for its "records." But the record does not contain a stamped petition.

In July 2022, Martin filed a motion to dismiss the revocation petition because his term of probation had ended the previous month. The trial court denied the motion because Martin had received notice of the new allegations before the term of probation expired, and there was no requirement that the State file a revocation petition with the court. Martin then moved for discharge and acquittal, arguing that the court had never entered an order of adjudication prior to the expiration of his probation term, and therefore, he was entitled to be released. The trial court denied the motion.

Before the hearing occurred, Martin filed his notice of appeal from the trial court's order denying his motion for discharge and acquittal. The following week, despite the notice of appeal, the trial court conducted a revocation hearing, found Martin had committed the probation violations, adjudicated him guilty, and revoked his first offender status. The court sentenced him to probation with credit for time served. Martin now appeals, arguing that the trial court erred by adjudicating him guilty and revoking his first offender status after his term of probation expired.

1. Before we turn to the merits of Martin's appeal, we must first consider an issue of jurisdiction. Andrews v. State , 276 Ga. App. 428, 430 (1), 623 S.E.2d 247 (2005) ("[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.") (citation and punctuation omitted).

Martin filed his first notice of appeal from the denial of his motion for discharge and acquittal prior to the revocation hearing. At the hearing, Martin argued that this divested the trial court of jurisdiction to revoke his probation. The State argued, and the trial court agreed, that it retained jurisdiction because Martin was required to file a discretionary application to appeal the court's order. But the trial court — and the State — were incorrect.

Martin's notice of appeal acted as supersedeas even though he did not follow the discretionary application procedures. See Scroggins v. State , 288 Ga. 346, 347, 703 S.E.2d 622 (2010), overruled on other grounds by Ricks v. State , 303 Ga. 567, 568, n. 1, 814 S.E.2d 318 (2018). Thus, once Martin filed his notice of appeal, the trial court lacked authority to "affect the judgment appealed, [and] subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect." (Citation and punctuation omitted.) Scroggins , 288 Ga. at 347, 703 S.E.2d 622 ; Ricks , 303 Ga. at 567, 814 S.E.2d 318. Moreover, the trial court lacks authority to determine whether an appeal required a discretionary application, as that determination is properly for this Court. Evans v. Jackson , 368 Ga. App. 170, 172(1) (a), 889 S.E.2d 343) (2023) ("An appellate court is the sole authority in determining whether a filed notice of appeal or discretionary application is sufficient to invoke its jurisdiction.") (citation and punctuation omitted). As a result, the trial court erred by conducting the revocation proceedings after the first notice of appeal was filed, and the trial court's order revoking Martin's first offender status is void.

2. We next consider whether we may reach the issues raised in regard to the trial court's first order denying Martin's motion for discharge and acquittal, which the State argued was subject to the discretionary application procedures. OCGA § 5-6-35 (a) (5), (b). We conclude that Martin was entitled to a direct appeal from the denial of this motion.

Martin filed a motion to discharge his sentence, arguing that he was entitled to be released because the trial court never adjudicated him guilty and revoked his first offender status before his term of probation ended. We consider the substance of a motion and not its nomenclature, and have routinely considered motions seeking to discharge first offender status as motions to correct void sentences, the denial of which would be subject to a direct appeal. See Giles v. State , 362 Ga. App. 237, 867 S.E.2d 840 (2022) ; see also Kinsey , 350 Ga. App. at 318, 829 S.E.2d 398 ("The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and ... [i]t is well settled that ... a sentence is void if the court imposes a punishment that the law does not allow.") (citations and punctuation omitted); Collins v. State , 338 Ga. App. 886, 888-889 (1), 792 S.E.2d 134 (2016) (construing motion for discharge as motion to correct a void sentence and considering merits on direct appeal). We therefore conclude that Martin was permitted to file a direct appeal of the denial of his motion.

3. Turning to the merits of the appeal, Martin argues that he was entitled to a discharge and acquittal because he was not adjudicated guilty and his status was not revoked prior to the expiration of his probation. According to Martin, the trial court lacked the ability to revoke his first offender status after his term of probation expired, because to do so would amount to an increase in punishment. He notes that discharge would be automatic, and the State cannot circumvent the requirements by simply announcing its intent to revoke, but never filing any revocation petition. We agree.

"In our review of a statute we must construe a statute according to its own terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage." (Citation and punctuation omitted.) Irving v. State , 367 Ga. App. 814, 815 (1), 888 S.E.2d 591 (2023).

When a defendant has been sentenced under the first offender Act, he "shall be exonerated of guilt and shall stand discharged as a matter of law as soon as the defendant ... [c]ompletes the terms of his or her probation, which shall include the expiration of the sentence by virtue of the time frame of the sentence passing[.]"

OCGA § 42-8-60 (e) (1). Thus, "[i]f ... the state does not seek to have a first offender adjudicated guilty during the term of the first offender's sentence ..., the defendant shall be exonerated of guilt and shall stand discharged as a matter of law." OCGA § 42-8-60 (g) ; see also State v. Mills , 268 Ga. 873, 874, 495 S.E.2d 1 (1998).

Under the plain language of the statute, a defendant is automatically discharged if there is no adjudication of guilt prior to the completion of the probationary term. OCGA § 42-8-60 (g); Seibert v. Alexander , 351 Ga. App. 446, 451 (3), 829 S.E.2d 473 (2019) ; Ailara v. State , 311 Ga. App. 862, 864, 717 S.E.2d 498 (2011) (where trial court never revoked first offender status, or adjudicated defendant guilty, discharge was automatic once defendant completed his term of probation). Nevertheless, a trial court may revoke a first offender's status and adjudicate him guilty even if the term had expired as long as the State initiated revocation proceedings prior to the expiration of his term of probation. State v. Boyd , 189 Ga. App. 617, 618, 377 S.E.2d 11 (1988). At issue, then, is what is required to "seek" an adjudication of guilt. In other...