Revocation of probation. Cobb Superior Court. Before Judge Grubbs.
J. David Haskin , Benjamin D. Goldberg, for appellant.
D. Victor Reynolds , District Attorney, Jason D. Marbutt , Daniel J. Quinn , Assistant District Attorneys, for appellee.
DOYLE, Presiding Judge. Miller, J., concurs specially. Dillard, J., concurs in the judgment only.
Doyle, Presiding Judge.
Kim Marie Hoosline entered a negotiated guilty plea to possession of cocaine under OCGA § 16-13-2 (a), and she was sentenced to confinement for a period of five years to be served on probation. Following Hoosline's failure to comply with the terms of her probation, the trial court revoked her probation and sentenced her to ten years, with five months to serve. Following our grant of Hoosline's application for a discretionary appeal, she contends that the trial court erred by resentencing her to a term longer than her initial five-year sentence. For the reasons that follow, we vacate Hoosline's sentence and remand the case.
When Hoosline entered her negotiated guilty plea in 2007, the prosecutor advised the trial court that Hoosline was pleading guilty to possession of cocaine and " [was] asking for a conditional discharge ..., and she qualifies." The trial court, in its colloquy with Hoosline regarding the constitutional rights she waived by pleading guilty, advised her that " upon [her] plea of guilty, [she] could be imprisoned for a maximum of  years and a fine of up to [$100,000] could be imposed." After reviewing the terms of her probation, the court advised Hoosline that " the rules of probation require [strict compliance], ... [a]nd we can revoke that conditional discharge in a heart beat if you break the rules." The court then orally " sentence[d]" Hoosline under OCGA § 16-13-2 " to a period of five years."
The trial court entered a sentencing form for Hoosline, which form adjudicated her guilty and sentenced her to five years " which may be served on probation." The form contained a handwritten notation indicating that the guilty plea was entered under OCGA § 16-13-2 and contained an addendum for special conditions of probation, which addendum provided:
IT IS THE FURTHER ORDER of the [c]ourt, and the defendant is hereby advised that the [c]ourt may, at any time, revoke any conditions of this probation and/or discharge the defendant from probation. The probationer shall be subject to arrest for violation of any condition of probation herein granted. If such probation is revoked, the [c]ourt may order the execution of the sentence which was originally [328 Ga.App. 176] imposed or any portion thereof in the manner provided by law after deducting therefrom the amount of time the defendant has served on probation.
In March 2011, the State filed a petition to revoke Hoosline's probation based on her
failure to report to her probation officer, make payments toward her court-ordered fines, and make herself available for drug/alcohol screens. At the hearing, Hoosline conceded that she was " in violation of technical violations." She argued, however, that the trial court could not impose a sentence that was longer than the five-year sentence she received in 2007. The trial court rejected Hoosline's arguments and entered a final disposition form under OCGA § 16-13-2 revoking her conditional probation, adjudicating her guilty, and sentencing her to ten years, with five months to serve. Hoosline then filed an application for discretionary appeal, which this Court granted.
On appeal, Hoosline argues that the trial court erred by " resentencing" her to a term greater than the five years probation imposed when she entered her guilty plea. As explained below, because the trial court actually adjudicated Hoosline guilty and imposed a sentence when Hoosline entered her 2007 guilty plea, notwithstanding its apparent intention to ...