Petition — Wood v. Georgia

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RECEIVED

SUPREME COURT OF THE UNITED STAQBSCE OF Fiec Cit

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— f-814 1980 |

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| SSPREtS CORP, U.S.

OCTOBER TERM, 1979

no. “14 -lb027

RAYMOND WOOD, EDNA ALLEN, ance

JAMES TANTE,

Petitioners,

vs.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

ee eee ee

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GLENN ZELL, Attorney for Peitioner

Suite 620

66 Luckie Street,

Atlanta, Georgia

(404) 524-6878

30303

INDEX

TABLE OF CONTENTS

Ceaniem. POON «6 2 a Se 1 8e e EC ee ee ee

GUS LSOROESOR.. ce Glew al Res

GCupetion Presneee: i... « «6-4 6 ee eee ee

Constitutional and Statutory Provisions Involved

Statement of the Case «1. 1 6s te ee es we 6 ee eS

Reasons For Granting The Writ:

I. This Case Presents For Review An Issue Expressly

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

Reserved By This Court In Tate vs. Short,

Indigency After Being Placed on Probation.

II. There Is A Conflict Between the Federal Courts

And The State Courta. « « « «

GONELUETON: 2. 8 °k% @ 4 ate we oe) Sa a ee eee

INDEX TO APPENDICES

Appendix A.

Appendix 8.06 6 6 8S ew we Se tee ee se ee

Appendix ©. 2. « «'s t «= © « a) @ & Sus

Appendix D. ... .

4

5

7

Al

A3

A4

A5

TABLE OF CITATIONS

Allen, et al. vs. State, 144 Ga. App 233, 240 S.E. 2d 754

(1977)) .. ce a we ae 6 ld. ek ee ee ee ee eS 2

Barnett vs. Hopper, 234 Ga. 692, 217 S.E. 2d 208 (1975) .. 5

Barnett vs. Hopper, 548 F. 2d 550 (1977, 5th Cir.). 7

Gagnon vs. Scarpelli, 411 U.S. 617 (1973). 5

Griffin vs. Illinois, 351 U.S. 12 (1956) 4

Hensley vs. U.S., 257 F. 2d 681 (1958 5th Cir.)...... 6

Hunter vs. Dean, 240 Ga. 214, 239 S.E. 2d 791 (L977)... 7 |

Hopper vs. Barnett U.S. __, 58 L. Ed. 2d 701 (Dec. 11, 1978),

Morrisey vs. Brewer, 408 U.S. 471 (1972) 5,.7|

meee We. Snort, 401 U.S. 395 (1971 , », pp wp ep vveovere 4, 5|

Some Ve. Boswell, 605 F. 24 171 (1979, Sth Cir.) ....+s+e §$

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

U. &. ve. Taylor. 321 F. 2d 339 (1963, 4 Cir.) ae, ae oe eee

Williams vs. Illinois, 399 U.S. 235 (1970). 4,5

Wood, et al. vs. State, 150 Ga. App. 582, 258 S.E. 2d 171

(1979) “0 Oe ea ae er ae a a a ce oe 2 i ee 2

Wood, et al. vs. State, 144 Ga. App. 236, 240 S.E. 2d 743 (1977) |

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MISCELLANEOUS |

Georgia Code Annotated 27-2901 ........ 6 |

:

United States Constitution (14th Amendment) 2,4,6,7 |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

RAYMOND WOOD, EDNA ALLEN, and

JAMES TANTE,

Petitioners,

vs.

THE STATE OF GEORGIA,

Respondent.

*~e e+ + + + + + H+

PETITION FOR WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

an?

Petitioners pray that a Writ of Certiorari issue to

to review the opinion and judgment of the Georgia Court of Appeals

entered in the above case on June 5, 1979.

OPINION BELOW

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The opinion of the Georgia Court of Appeals is reported

at 150 Ga. App. 582, 258S.E. 2d 171 (1979), and is set forth in

Appendix "A".

JURISDICTION

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The Judgement of the Georgia Court of Appeals was en- |

tered on June 5, 1979. An Application for rehearing was timely |

filed and denied on July 6, 1979. Copy of said denial is set

forth in Appendix "B" hereto. Thereafter, the Supreme Court of

Georgia denied a timely filed Petition for Writ of Certiorari on

September 4, 1979. Copy of said denial is set for th herein in

Appendix "C". Mr. Justice Powell granted an extension of time

to and including February1,1980 within which to file this Peti-

tion. The Court's jurisdiction is invoked under Title 28, United

States Code §1257 (3).

QUESTIONS PRESENTED

Once a State Court has determined that probation is the

appropriate punishment for a particular offender, and also imposes

a fine to be paid on installments during the probationary period,

may it, consistently with the Equal Protection and Due Process

clauses of the Fourteenth Amendment, revoke the probation of the

offender for failure to pay the installments as directed where the

evidence established that the offender was indigent and that the |

offender was not negligent in any manner, and did not deliberate-

ly 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 "D" hereto.

STATEMENT OF THE CASE

Petitioners were placed on probation after being con-

victed of distribution of obscene materials. Their cases are

reported at 144 Ga. App. 236, 240 S.E. 2d.743 (1977), and 144 Ga. |

App. 233, 240 S.E. 2d. 754 (1977). Wood received a ten thousand

($10,000.00) dollar fine and twelve (12) months on probation on

each of two (2) counts:to run consecutively. Tante and Allen

each received a five thousand ($5,000.00) dollar fine and twelve

(12) months on probation.

The remittiturs were made the judgment of the trial

court on October 23, 1978. (R-20, 21, 22). The trial judge. in

each probation order, as a condition required each appellant to

pay five hundred ($500.00) dollars per month until the fine was

paid. (R-23, 24, 25).

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Thereafter, on January 12, 1979, or approximately 2 1/2

months after being placed on probation, a petition for revoca-

tion of probation was filed against each Petitioner and the sole}

ground for revoking the probation was that the Petitioner failed

to pay as directed. (R-26, 27, 28.)

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A hearing was held on January 26, 1979. Jacqueline L.

Tomlin, Edna Allen's probation officer, testified that the Peti-

tioner was on unemployment compensation, and that Allen had not

paic 2 $500.00 per month and had no idea how she would raise

the fine money. (T-4-6). Upon questioning by her Counsel, Allen

testified that she receives $64.00 per week or about $250.00 per

month, and has no other assets or sources of income. (T-7)

Allen is presently having eye trouble, is 54 years of age, and has

been turned down for employment. (T-8, 9, 24, 25) She borrowed

money to pay for her eye glasses, and has no money left over, |

after paying expenses, to pay on her fine. (T-9-11)

Gene Odum, James Tante' probation officer, testified

that Tante had complied with the conditions of probation except

paying the $500.00 per month on the fine. Tante told Odum that |

his employer was supposed to pay the fine, and that he was on a

very tight budget. (T-23, 33) Tante testified he worked for the

State of Georgia as a correctional officer. (T-33) His gross

income is $540.00 per month, and he has no other property or

income. (T-35) His net pay is $516.00 per month, and he had

nothing left over in November and December to pay on the fine.

(T-37).

Tante is 60 years of age, and was unemployed for eight

months, and was on unemployment before he obtained his present

job. (T-38-40)

Dixon E. Nash, Raymond Wood's probation officer, ice

fied that Wood had not paid the fine as directed. Wood had been |

terminated from his prior employment, and just started a new job.)

His gross income is $120.00 per week at his new job. .(T-53).

Wood's net pay was about $155.00 after deductions on his old job,

and he had no money left over to pay his fine. Also, he is the

sole support of his wife and three children. (T-54, 55)

The Court issued an order revoking the probation of al

three Petitioners on the sole ground that each Petitioner violated

the terms of probation by not paying the fine as directed, being

$500.00 per month or $1500.00 for 3 months. (R-29-34) (R-37,38,39).

=3-

REASON FOR GRANTING THE WRIT

I.

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 Imprisonment of

The Defendant For Failure To Pay A Fine On Installments Due To

His Indigency After Being Placed On Probation.

In Tate vs. Short, 401 U.S. 395, 400 (1971), this Court

-..Nor is our decision to be understood as precluding

imprisonment as an enforcement method when alternative means are

unsuccessful despite the defendant's reasonable efforts to satis-

fy the fines by those means; the determination of the constitu-

tionality of imprisonment in that circumstance must await the |

presentation of a concrete case." |

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

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stated that" |

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court stated that: |

.. We have no occasion to reach the question whether

a State is precluded in any other circumstances 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.

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The Georgia Court of Appeals in Wood, et al. vs. State,

supra, held that:

"At the revocation hearing, it was established that

none of the appellants had the financial resources to make the

payments..."

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

that converted a fine into imprisonment due to the indigency of

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

held that the term of imprisonment for an offense ooule not be

extended beyond the maximum period fixed by law resultiny 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 sole-~

ly 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 of-

fender who has been awarded probation is part of the liberty

wie

directly secured by the Fourteenth Amendment. Morrisey vs. Brewer,

408 U.S. 471 (1972); Gagnon vs. Scarpelli, 411 U.S. 617 (1973).

The evidence showed that the installment payment of

$500.00 per month on the fine was more than Wood and Allen made

in a month. Tante's net pay was $516.00 a month. On these facts,|

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the alternative offered the petitioners was, in effect, a nullity.

There is no “inverse discrimination" that is mentioned

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

the petitioners were serving their sentence on probation. They

were reporting to their probation officers and were complying with

the terms and conditions of their probation. They were, in essence,

serving their sentence. |

It should be pointed out that the fine is a judgment |

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 petitioners are sub-

ject to paying the fine at a later time, and even after the pro- |

bation period is over. |

II. |

There Is A Conflict Between the Federal Courts And The |

State Courts.

Recently in U.S. vs. Boswell, 605 F. 2d. 171, (1979, |

5th Cir.), the Court held that a revocation of probation was

erroneous if the defendant did not have the resources evettable,

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

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manner that resulted in his inability to pay. |

Similarly in U.S. vs. Taylor, 321 F. 2d. 339 (1963, sill

Cir.), the court held that if the defendant was too poor to pay

the fines, was not to blame for it, and was sincere in trying to |

pey the fines, his probation should not be revoked.

The applicable law is stated in U.S. vs. Savage, 440

F. 2d 1237, 1239 (1971, Sth Cir.) that a defandant:

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",..Can not be held to be in violation of the condition

(of his parole) unless he is clearly at fault." See also Hensley

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

The above cited federal cases clearly reflect that in

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

gent in not paying the installment payments, or willfully refuses

to pay the fine.

Georgia refuses to follow the Fourth and Fifth Circuits

and holds that probation can be revoked solely because of the in-

digency 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 Petitioners have not been negligent, and have not

surrendered a fair opportunity to make the required installment

payments.

To imprison the Petitioners when in the same circum-

stances 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 installements 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 Petitioners

need not be confined for their 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 Petitioners certainly have no quarrel with

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

to their indigency is irrational, unnecassary, and impermissibly

barred them from the benefits which the court adjudged them worthy

of. This violates due process of law.

The State must accomodate their indigency and permit

them 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 has no

apparent relationship to punishment or to rehabilitation.

Wood was a mere clerk in a bookstore; Allen was a mere

ticket taker in a theater; and Tant was a mere projectionist in a

theater. The imposition of substantial fines on this type of

person can only result in the revoking of the probation sooner

or later. The trial court was fully aware of the financial situ-

ation of the Petitioners when he imposed the sentences.

If the probation sentence can be revoked in this case,

then the probation sentence was illusory and amounted to the trial

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judge giving the three Petitioners a test of liberty for three (3

months, but in effect was really giving them a sentence to serv

in prison. Under the holdings of Morrisey vs. Brewer, supra, th

State court is required to keep the Petitioners on probation as

they were clealy not at fault in failing to comply with the terme

of probation.

Since we have a national constitution , the

application ofthe constitution should be uniform in both the state

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CONCLUSION

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The Georgia Court of Appeals relied on Hunter vs. Dean,

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240 Ga. 214, 239 S.E. 2d 791 (1977) in upholding the trial court's

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and federal courts.

decision. Hunter vs. Dean is based on Barnett vs. Hopper, 234

Ga. 692, 217 S.E. 2d 208 (1975). Subsequently that judgment was

reversed in Barnett vs. Hopper, 548 F. 2d 550 (1977, 5th Cir.).

This Court granted certiorari in Hopper vs. Barnett, U.S. /

58 L.Ed. 2d 701 (Dec. 11, 1978) and vacated the judgment of the

Fifty Circuit on the grounds of mootness. In both Dean and

Barnett, the sentence required payment of a fine in a lump sum

before the defendant could be placed on probation. It therefore

appears that a Writ of Certiorari should be granted based on thi

Court vacating the Fifth Circuit's ruling in Hopper vs. Barnett,

and Hunter vs. Dean, supra, being based on Barnett vs. Hopper,

ZX, Vip

GLENN ZELL, oad | Pete’

234 Ga. 692, 217 S.E. 2d 208 (1975).

Suite 620

66 Luckie Street, N.W.

Atlanta. Georgia 30303

— JUN 5 1979

; Appendiy'h”

| 57867. WOOD (RAYMOND) c+ al. v. THE STATE. Ba-102

BANKE, Judge.

Each of the three appellants was convicted of dis-

tributing obscene materiale and each was sentenced to pay

a fine and to serve 12 months on probation. Following the

affirmance of tnese convictiong on appeal, tne trial court

entered probation orders requirin each appellent to meke~

payments of $500 per month towards payment of his or her.

: fine 7s a condition of probation. Tnereafter, each

appellant's probation was rovoked for failure to make the

$500 payments as directed.

At tne revocation hearing, it wae esteblished tnat

none of tne appellants nad tne financial resources to make

tne payments. On appeal, tne appellants contend tnat to

revoke tneir probation under these circumstances amounts to

imprisoning them for their indigency, in violation of their

rignts under tne Fourteenth Amendment of the United States

Constitution. Tney further contend tnat tne trial court

was without authority under Georgia law to require payment

of the fines ag a condition of probation. Held:

1. In Hunter v. Dean, 240 Ga. 214 (239 SE2d 792)

(1977), a requirement tnat a defendant pay a fine as a

condition precedent to serving a sentence on probation was

held not to violate the equal protection or due process

provisions of the United States Constitution; even "wnen:

the defendent is indigent and unable to make immediate

payment of the fine." See generally Code Ann. § 27-2709.

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Tne appellants contend that while this may be the law

where payment of the fine is required as a condition pre-

cedent to probation, the situation is different where pay-

ment of the fine is required as a condition of the proba~

tion itself. We are unable to accord tnis delicate dis-

tinction the weight which the appellants seek to give it.

‘ In our view, Hunter controls tnis case and requires the

| affirmance of the trial court's ruling.

2. Tne fact tnat Code Ann. 27-2711 does not list

‘ payment of a validly imposed fine as one of the permissible

conditions of probation does not require a different result.

It is well settled that the conditions enumerated in that

section are not exclusive, but tne court may impose other

7 requirements not specifically listed therein. See George

v. State, 99 Ga. App. &92, 893 (109 SE2@d 883) (1959); Gay

v. State, 101 Ga. App. 225 (1) (113 SE2d 223) (1960).

Judgment affirmed. McMurray, P. J.. and Underwood,

J., concur.

eee...

. , . A ppandsxt re) ,

Court of Appeals : 2

of the State of Georgia |

ATLANTA, duly 6, 1979

The !onorable Court of Appeals met pursuant to adjournment.

The following order was passed:

57867. Raymond Wood et ale ve The State

Upon consideration of the motion for a rehearinz filed in this case, it is ordered

that it be hereby denied.

Court of Appeals of the State of Georgia

CLERK’SOFFICE, ATLANTA JUL -6 IS79

I certify that the above is a true extract from the minutes

of the Court of Appeals of Georgia.

Witness my signature and the seai of said court hereto affixed

the day and year last above written.

Appel —

A. san Dy —— neon

os ; re Apps dix *C ;

CLERK'S OFFICE, SUPREME ae oa OF GEORGIA

a

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

All the justices TA

2... Mcaratetken

Ll, Diy t

Very truly yours,

MRS. JOLINE B, WILLIAMS, Clerk