Petition — Patrick Simpson v. State of Georgia

80-5589

IN THE

RECEIVED

OCT 24 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S.

SUPREME COURT OF THE UNI™ED STATES

OCTOBER TERM, 1986

NO.

PATRICK SIMPSON,

Petitioner

vs.

THE STATE OF GEORGIA,

Respondent

ON WRIT OF CERTIORARI

TO THE

COURT OF APPEALS

OF GEORGIA

GLENN ZELL, Attorney for Petitioner

Suite 620

66 Luckie St., N.

Atlanta, Georgia

Ww.

30303

j

'

INDEX

TABLE OF CONTENTS

Opindos Below . « »« 6 6's 8 @ © @ #1 & be Oo eee

Jurisdiction

Question Presente@... sc ces ts es & OS = Se 8

Constitutional and Statutory Provisions Involved. . .

Statement of

the Case . . . . - . . 7 . . . - . . . 7

Reasons For Granting The Writ:

xe

II.

IIt.

This Case Presents For Review An Issue

Expressly Reserved By This Court In

Tate vs. Short, 401 U.S. 395 (1971)

and Williams vs. Illinois, 300 U.S.

235 (1970) - The Imprisonment of The

Defendant For Failure To Pay A Fine

on Installments Due to His Indigency

After Being Placed on Probation ....

There Is A Conflict Between The Federal

‘Courts And The State Courts. ....-.- .-

This Court has granted certiorari in the

case of Wood, et al vs. Georgia, US

648 LE2d 807 (May 19, 1980, 79-6027)

which involves the same issue as in

the present cas@ ..se«ceeese ce ees

INDEX TO APPENDICES

Appendix A.» - sess 6¢ sss 6 8 Se

Appen@ix B. «2 « = 5 s © € & 8) @ 61880 ee

appendix ©... ». «+ ss « & = @ 8.66 eee

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AS

A6

6 eeEEEEeEeEeEeEeEeEeEee ee

TABLE OF CITATIONS

Barnett vs. Hopper, 548 F. 2d 550 (1977, Sth Cir.).

_ Gagnon vs. Scarpelli, 411 U.S. 617 (1973) . « e

Griffin vs. Illinois, 351 U.S. 12 (1956)... -

_ Hensley vs. U.S., 257 F. 2d 681 (1958 Sth Cir.)

Morrisey vs. Brewer, 408 U.S. 471 (1972) . - e

Simpson vs. State, 154 Ga. App., 775( SE2d )-

Simpson vs. State, 144 Ga. App. 657 ( SE2d )-

Tate vs. Short, 401 U.S. 395 (1971) ...-+-s -

U.S. vs. Boswell, 605 F. 2d 171 (1979, 5th Cir.).

U.S. vs. Savage, 440 F. 2d 1237 (1971, 5th Cir.).

U.S. vs. Taylor, 321 F. 2d 339 (1963, 4 Cir.) - «

Williams vs. Illinois, 399 U.S. 235 (1970). » «

Wood, et al vs. Georgia, U.S. , 64 LE2d 807

(May 19, 1980, 79-6027) . - + +2222 e 2 2 ®

ii

4,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

PATRICK SIMPSON,

Petitioner

vs.

THE STATE OF GEORGIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

Petitioner prays that a Writ of Certiorari issue to re-

view the opinion and judgment of the Georgia Court of Appeals

entered in the above case on June 2, 1980.

OPINION BELOW

The opinion of the Georgia Court of Appeals is reported

at 154 Ga. App.,775( SE2d ), and is set forth in Appendix

Cae.

JURISDICTION

The Judgment of the Georgia Court of Appeals was entered

on June 2, 1980. Thereafter, the Supreme Court of Georgia

denied a timely filed Petiti n for Writ of Certiorari on Septem-

ber 2, 1980. Copy of said denial is set forth herein in

Appendix "B". The Court's jurisdiction is invoked under Title

28, United States Code §1257 (3).

QUESTION PRESENTED

Once a State Court had determined that probation is the

appropriate punishment for a particular offender, and also im-

poses a fine to be paid on installments during the pro-

bationary period, may it, consistently with the Equal Pro-

tection and Due Process clauses of the Fourteenth Amendment,

revoke the probation where the evidence established that the

offender was indigent and that the offender was not negligent

in any manner, and did not deliberately disburse or dissipate

monies that resulted in his inability to pay?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The pertinent provisions of the Fourteenth Amendment to

the United States Constitution as well as Georgia Code Annotated

27-2901, are set forth in Appendix "C" hereto.

STATEMENT OF THE CASE

PATRICK F. SIMPSON, hereinafter referred to as the

petitioner, was placed on probation after being convicted of

distribution of obscene materials. Simpson v. State, 144 Ga.

App. 657. Petitioner's two (2) year probated sentence began

to be served on August 21, 1978 under an order of probation

requiring him to pay Five Hundred ($500.00) dollars per month

until the Ten Thousand ($10,000.00) dollar fine was paid: (R-

29, case No. 59871).

Petitioner on June 14, 1978 entered a plea of guilty

to a charge of distribution of obscene materials and received

a fine of Ten Thousand ($10,000.00) dollars and two (2) years

on probation, and he was required to pay the fine at the rate

of Five Hundred ($500.00) dollars per month. Therefore, both

sentences were running concurrently, and the petitioner was to

pay One Thousand ($1,000.00) per month on total fines of Twenty

Thousand ($20,000.00) dollars. (R-44, case No. 59872.)

A petition for revocation was filed in each case and

the sole ground for revoking the probation was that the pe-

titioner failed to pay as directed. (R-45, case No. 59872)

R-35, case No. 59871)

COURT OF APPEALS OF GEORGIA CASE NO. 59872

The first hearing was held on October 4, 1979 before

Judge Dorothy T. Beasley. Steve Crawford, a probation officer,

testified that Simpson had paid Two Hundred Ninety ($290.00)

Page 2

dollars toward the fine of Ten Thousand ($10,000.00) dollars.

(T-2) Petitioner's employer had written a letter to the judge

and the probation officer in Brunswick stating that the pe-

titioner was gainfully employed, doing a good job, and suggested

a reduction in the fine. (T-3) Petitioner's employer also

wrote a letter to the probation officer stating that Simpson

was a good employee. (T-3)

The petitioner testified that he paid what he could

afford, and that the company he had worked for when he was

arrested assured him they would help. (T-4) Simpson testified

his present take-home pay is Three Hundred Seventeen ($317.00)

dollars every two weeks. (T-5) Because his roommate was not

working due to a strike, he paid all the household bills which

left him no money to pay on the fine. (T-6) Simpson stated

he had no assets, and lives from pay check to pay check. (T-7)

Simpson testified that he tried to get a part-time job

but none were available. (T-9)

The Court concluded that this petitioner violated the

terms of the probation by not paying Five Hundred ($500.00)

dollars per month as directed.

On November 1, 1979, another hearing was held and Steve

Crawford gave the same testimony he had given at the October

4, 1979 hearing. Simpson's total payments on probation were

One Thousand ($1,000.00) dollars per month (T-4), and the total

payments were Two Hundred Ninety ($290.00) dollars.

The petitioner testified he had declared bankruptcy

in January of 1978. (T-7) Petitioner's gross salary was about

$600.00 per month up to June of 1979, and his net pay was about

$525.00 per month. (T-8) He then received a raise of about

$40.00 per month. (T-9) He had nothing left over from paying

his expenses and he had no assets. (T-10) Simpson swore he

did not squander any money, and on several occasions he had

no money left to his next paycheck. (T-13) All his money went

r necessities, and he then detailed where his money went.

(T-13-16) Simpson testified that before the raise his net pay

was $596.00 per month and after it was $634.00 per month. (T-25-,

26).

No evidence or testimony was introduced nor was it shown

that the petitioner was negligent in failing to pay his fine

as directed. It was solely due to his indigency as to why

he could not pay $500.00 per month on the fine imposed by

Judge Beasley. The probation was revoked on the sole ground

alleged in the petition for revocation that he failed to pay

as directed, being $500.00 per month. (R-46)

COURT OF APPEALS OF GEORGIA CASE NO. 59871

A hearing was then held on November 1, 1979 before Judge

William Alexander. Steve Crawford gave the same testimony as

he had given before Judge Beasley. (T-8-12) The petitioner

gave the same testimony that he had given before Judge Beasley.

He lived from pay check and had no money left over to pay his

fine. (T-17) The Court revoked his probation on the sole

ground alleged in the petition for revocation that he failed

to pay as directed, being $500.00 per month. (R-36)

REASON FOR GRANTING THE WRIT

Ze

This Case Presents For Review An Issue Expressly Re-

served By This Court In Tate vs. Short, 401 U.S. 395 (1971)

and Williams vs. Illinois, 399 U.S. 235 (1970) - The Imprison-

ment of The Defendant For Failure To Pay A Fine On Installments

Due To His Indigency After Being Placed On Probation.

In Tate vs. Short, ’01 U.S. 395, 400 (1971), this Court

stated that"

"...Nor is our decision to be understood as pre-

cluding imprisonment as an enforcement method when

alternative means are unsuccessful despite the de-

fendant's reasonable efforts to satisfy the fines

by those means; the determination of the constitu-

tionality of imprisonment in the circumstance must

await the presentation of a concrete case."

In Williams vs. Illinois, 399 U.S. 235, 243 (1970), this

court stated that:

Page 4

",..We have no occasion to reach the question

whether a State is precluded in any other cir-

cumstances from holding an indigent accountable

for a fine by use of a penal sanction..."

This case appears to be the concrete case mentioned in

Tate vs. Short, supra.

The Georgia Court of Appeals in Simpson vs. State, 154

Ga. App. 775 (___ SE2d ) held that for the reasons stated a-

bove, the court did not err in revoking defendant's probation

even though his failure to pay the monthly installment of the

fine was "not negligent or willful.”

In Tate vs. Short, supra, this Court struck down a sentence

that converted a fine into imprisonment due to the indigency of

the defendant. Similarly in Williams vs. Illinois, supra, it

was held that the term of imprisonment for an offense could not

be extended beyond the maximum period fixed by law resulting

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directly from an involuntary nonpayment of a fine or court costs.

The fundamental question boils down to whether the sort

of sentence an offender must serve may ever explicitly turn

solely upon the amount of money he has. Griffin vs. Illinois,

351 U.S. 12, 19 (1956).

It is now clear that the conditional liberty of an

offender who has been awarded probation is part of the library

directly secured by the Fourteenth Amendment. Morrisey vs.

Brewer, 408 U.S. 471 (1972); Gagnon vs. Scarpelli, 41l U.S. 617

(1973).

The evidence showed that the installment payments of

$1000.00 per month on the fines were more than Simpson

made in a month. Simpson's net pay was $634.00 a month. On

these facts, the alternative offered the petitioner was, in

effect, a nullity.

There is no “inverse discrimination" that is mentioned

in Williams vs. Illinois, supra, and Tate vs. Short, supra,

since the petitioner was serving his sentence on probation.

He was reporting to his probation officer and was com-

plying with the terms and conditions of his probation. He

Page 5

was, in essence serving « his sentence.

It should be pointed out that the fine is a judgement

against the defendant, and the State can always levy against

any property the defendant may own at a later time. Also,

the State may file a garnishment against the salary of the

defendant in order to collect the fine. Therefore, the pe~

titioner is subject to paying the fine at a later time, and

even after the probation period is over.

Lae

There is a Conflict Between the Federal Courts And The

State Courts.

In U.S. v. Boswell, 605 F.2d 171 (5th Cir. 1979), the

Court held that a revocation of probation was erroneous if

the defendant did not have the resources available, had no way

to acquire them, and was not negligent or deliberate in allowing

funds that he had to be disbursed or dissipated in a manner

that resulted in his inability to pay. See also Barnett v.

Hopper, 548 F.2d 550 (Sth Cir. 1979), vacated as root, Hopper

v. Barnett, 439 U.S. 1041 (1978).

Similarly in U.S. v. Taylor, 321 F.2d 339 (4th Cir. 1963),

the Court held that if the defendant was too poor to pay the

fines, and was sincere in trying to pay the fines, his pro-

bation should not be revoked.

In U.S. v. Savage, 440 F.2d 1237, 1239 (Sth Cir. 1971)

the Court held that a defendant:

“cannot be held to be in violation of the condition

(of his parole) unless he is clearly at fault.”

The Court held that the District Court could not re-

voke appellant's probation unless it is positively and clearly

shown that the failure to meet the condition was due to the

appellant's neglect or default.

In Hensley v. U.S., 257 F.2d 61 (5th Cir. 1958), the

probation was properly revoked since the defendant had fraudu-

lently transferred assets to avoid the payment of taxes.

Page 6

The above cited federal cases clearly reflect that in

order to revoke the probation of the defendant, he must be

negligent in not paying the installment payments, or willfully

refuses to pay the fine.

Georgia refuses to follow the Fourth and Fifth Circuits

and continually holds that probation can be revoked solely be-

cause of the indigency of the defendant.

This conflict should be resolved and this case is the

proper case for this court to provide a uniform rule of law for

the United States.

The petitioner has not been negligent, and has not

surrendered a fair opportunity to make the required installment

payments.

To imprison the petitioner when in the same circumstances

a person of means would remain free constitutes a denial of the

equal protection of the law. The confinement results from

failure to pay a fine on installments being directly converted

into imprisonment. The defendant who is involuntarily unable to

pay is subjected to imprisonment solely because of his indigency.

The trial court has determined that the petitioner need

not be confined for his crimes and that the State's penal

interests would be met by a fine to be paid in installments and

probation. (See Ga. Code Ann. §27-2901) This is an individual-

ized sentence and the petitioner certainly has no quarrel with

the court's essential judgment. But to revoke the probation due

to his indigency is irrational, unnecessary, and impermissibly

barred them from the benefits which the court adjudged them

worthy of. This violates due process of law.

The State must accomodate his indigency and permit him the

same escape from confinement open to a defendant of means under

the same sentence. It cannot offer probation only to those who

can pay.

Whether a person can pay a fine on installments had no

apparent relationship to punishment or to rehabilitation.

Page 7

eee - eee ee

——

Simpson was a mere clerk in a bookstore. The imposition

of substantial fines on this type of person can only result

in the revoking of the probation sooner or later. The trial

courts were fully aware of the financial situation of the

petitioner when imposing the sentence.

If the probation sentence can be revoked in this case,

then the probation sentence was illusory and amounted to the

trial judge giving the petitioner a test of liberty for several

months, but in effect was eventually giving him a sentence to

serve in prison. Under the holding: of Morrisey vs. Brewer,

supra, the State Court is required to keep the petitioner on

probation as he was clearly not at fault in failing to comply

with the terms of probation.

Since we have a national constitution, the application

of the constitution should be uniform in both the state and

federal courts.

III.

This Court has granted certiorari in the case of Wood

et al vs. Georgia, | U.S. ,.64 LE2d 807 (May 19, 1980,

79-6027) which involved the same issues as in this case.

Therefore, the petition for Writ of Certiorari should be

granted and remanded back to the Court of Appeals cf Georgia

after the Wood case has been decided.

CONCLUSION

This court needs to decide whether an indigent defendant's

probation can be revoked where the monthly installments were

not made due to his poverty and he was not negligent or willful

in failing to pay as directed by the Court.

Respectfully submitted,

GLENN ZELL

Suite 620

66 Luckie St., N.W.

Atlanta, Georgia 30303

(404) 524-6878

a

¥

| RECEIVED

OCT 24 1980

OFFICE UF THE CLERK!

—

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

PATRICK SIMPSON,

Petitioner

vs. .

THE STATE OF GEORGIA,

Respondent

MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS

The petitioner, PATRICK 'SIMPSON, ask leave to file the

attached Petition for a Writ of Ceritorari to the Georgia

Court of Appeals without prepayment of costs and to proceed

in forma pauperis pursuant to Rule 53.

’

Counsel “for Petitjoners

Suite 620

66 Luckie Street, N.W.

Atlanta, Georgia 30303

(404) 524-6878

ae eee - ee eee

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

PATRICK SIMPSON, Petitioner

vs.

STATE OF GEORGIA, Respondent

AFFIDAVIT

I, PATRICK SIMPSON, being first duly sworn according to

law, deposes and says, in support of my Motion For Leave To

Proceed without being required to prepay costs or fees:

1. I am the petitioner in the above entitled case.

2. Because of my poverty, I am unable to pay the costs

of said cause.

3. I am unable to give security for same.

4. I believe that I am entitled to the redress I seek

in said case.

5. The nature of said cause is briefly stated as follows:

I was sentenced in the State Court of Fulton County on a

charge of violation of the State obscenity law. The present

proceeding was commenced according to 28 U.S.C. 1257(3) on the

grounds that my constitutional rights were violated when the |

trial court revoked my probation for failure to pay the fine due

to my indigency.

i ~— id

i rer

. SIMPSON

Sworn and subscribed to

- “~

before me, thisnCc

day of October, 1980.

o* we aa ary eT yin es Rhee

Pi ee ‘eh i

——

JUN 2 1980

59871, 59872. SIMPSON v. THE STATE

QUILLIAN, Presiding Judge.

The defendant appeals from the revocation of

his probated sentence to confinement.

Defendant was convicted in two separate prose-

! cutions, of three counts each, of distribution of obscene

material. In each instance he received a sentence of two

years confinement and a fine of $10,000. The confinement

was probated on the payment of the $20,000 in fines at

the rate of $1,000 per month. He failed to make the monthly

payments and his probation was revoked. He orings this

appeal. Held:

1. It is alleged that the trial court converted

the defendant's probated sentence of confinement to im-

prisonment solely because of his indigency, and such con-

version "violates the eyual protection and due process

APPENDIX " A"

Page Al

ae

clauses of the Fourteenth Amendment of the U. S. Constitutio-:

. « «'' We do not agree.

Citing Williams v. Illinois, 399 U. S. 235 (90 SC

2018, 26 LE2d 586); Morris v. Schoonfield, 399 U. S. 508

(90 SC 2232, 26 LE2d 773); and Tate v. Short, 401 U. S.

395 (91 SC 668, 28 LE2d 130), defendant contends he has

been "treated differently" because he is financially unable

to pay his fine. He argues that under Griffin v. Illinois,

351 U. S. 12, 19 (76 SC 585, 100 LE2d 891), the "fundamental

question boils down to whether the sort of sentence an

offender must serve may ever explicitly turn solely upon

‘

the amount of money he has?" Answering the Last question

first, the U. S. Supreme Court stated: "The [Supreme] Court

has not held that fines must be structured to reflect

each person's ability to pay in order to avoid dispro-

portionate burdens. Sentencing judges may and often do,

consider the defendant's ability to pay, but in such

circumstances they are guided by sound judicial discretion

rather than by constitutional mandate."' San Antonio

School District v. Rodriquez, 411 U. S. 1, 21 (93 SC

1278, 36 LE2d 16).

aii

APPENDIX "A”

Page~A2

fen “iy

. ‘ 4 . - < : . Ss

Sie LR ee

Coe eee ae |

ae

Contrary to defendant's argument, the trilogy

of Williams-Morris-Tate, supra, does not prohibit the

sentence imposed in the instant case nor the revocation

of probation based upon the defendant's financial inability

to pay the fine imposed. This legal triad proscribes

typical sentences of $30 or 30 days, ond the conversion

of a fine into a sentence of confinement at a rate of

so many dollars per day - which exceeds the maximum amount

of confinement authorized by the statute. However, we

have neither situation in the instant case. See Calhoun

v. Couch, 232 Ga. 467 (2) (207 SE2d 455).

In essence, the Williams-Morris-Tate cases held

that "the bus: Seubnee and Equal Protection Clauses protect

persons like petitioner from inviduous discrimination"

because of their indigency. See Griffin v. Illinois, 351

U. S. 1218, supra. Our Supreme Court, in Hunter v. Dean,

240 Ga. 214 (239 SE2d 791), thoroughly examined the issue

of conditionally probated sentences upon payment of a fine

and concluded that they are "not necessarily inviduous

discrimination" even though defendant may be unable to

pay the fine. See also Barnett v. Hopper, 234 Ga. 694

(217 SE2d 280).

APPENDIX "A"

Page A3

—_

Under Code Ann. § 27-2711 (Ga. L. 1956, pp. 27, 32;

as amended through 1965, pp 413, 416), the sentence imposed

in the instant case was within the permissible conditions

of probation. The financial inability of the defendant to

pay the monthly installment when due did not convert the

monetary portion of the sentence to imprisonment, but

merely invoked the previously imposed confinement portion

of the sentence. This is not inviduous discrimination.

Wood v. State, 150 Ga. App. 582, 583 (258 SE2d 171); Young

v. State, 152 Ga. App. 108 (1) (262 SE2d 258); Calhoun v.

Couch, 232 Ga. 467, 468, supra; Barnett v. Hopper, 234 Ga.

694, supra; Hunter v. Dean, 240 Ga. 214, supra. This

enumeration is without merit.

io

an x For the reasons stated above, the court did

af )

not err in revoking defendant's probation even though

his failure to pay the monthly installment of the fine

—

was "not negligent or willful." See Hunter v. Dean, 240

Ga. 214, supra; Wood v. State, 150 Ga. App. 582 (2), supra

Judgment affirmed. Shulman and Carley, JJ., concur

allies

APPENDIX "A"

Page A4

OFFICE, SUPREME COURT OF GEORGIA

CLERK'S

“SEP 21980

Atlanta

Dear Sir: . ,

Cas:: No, <7. Rte, ck E Siam

v. ta Ce. a ele Speer

The Supreme Court today denied the writ of certiorari in this case.

All the justices concur.

Very troly yours, ;

MRS. JOLINE B. WILLIAMS, Clerk

mae

OE -——7 -

APPENDIX "B"

Page A5

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<< - S ee— =

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. The Pertinent provisions of the Fourteenth Amend-

ment are:

"No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States, nor shall any State deprive any person of life, liberty

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws."

2. Georgia Code Ann. §27-2901:

"Every fine imposed by the Court under the authority

of this Code shall be paid immediately or within such reasona-

ble time as the court may grant."

APPENDIX "C"

Page A6