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Pestana v. State

Court of Appeals of Georgia

July 16, 2014

PESTANA
v.
THE STATE

Probation discharge. Towns Superior Court. Before Judge George.

Kerry B. Morris, for appellant.

W. Jeffrey Langley, District Attorney, T. Buckley Levins, Assistant District Attorney, for appellee.

DOYLE, Presiding Judge. Andrews, P. J., Ellington, P. J., Dillard and McMillian, JJ., concur. Phipps, C. J., and Miller, J., dissent.

OPINION

Page 179

Doyle, Presiding Judge.

In November 2009, James Andrews Pestana entered a negotiated plea of guilty to aggravated assault[1] and was sentenced under the First Offender Act[2] to confinement for a period of ten years, which sentence could be served on probation. In July 2013, the superior court signed an order of discharge after Pestana's probation officer filed a petition for discharge indicating that Pestana had fulfilled the terms of his probation. The court subsequently rescinded the discharge order and reinstated Pestana's original sentence, and Pestana appeals that ruling. Because the superior court has plenary power to correct its own mistaken ruling during the same term of court, we affirm.

The record shows that Pestana was charged with two counts of aggravated assault with a deadly weapon, a handgun, arising from a single incident between Pestana and two alleged victims, Gary Berrong and Scott Albach.[3] The incident was part of an escalating neighborhood dispute allegedly involving roving ducks, a " mooning" incident, and land disturbance causing water on a roadway. Pestana had become estranged with certain neighbors, and in June 2009, after several confrontations, Berrong and Albach stopped their truck in the roadway and began taking photographs of Pestana for a pending lawsuit while he mowed his grass approximately 50 feet away. Pestana, who almost always carried a firearm,[4] pulled a handgun out of his pocket, pointed it at the men, and " told them they needed to keep going." Berrong and Albach immediately complied.

Based on this incident, Pestana was arrested and charged with two counts of aggravated assault. In November 2009, Pestana entered a negotiated plea of guilty to count one (assaulting Berrong with a handgun), and the State agreed to nolle prosequi count two (assaulting Albach with a handgun). In accordance with the plea deal, Pestana was " sentenced to confinement for a period [of] ... [ten] years," noting that the sentence could be served on probation.[5] The [328 Ga.App. 455] terms of his probation included conditions that he not possess any firearms nor have direct or indirect contact with Berrong, Albach, or their families.

On July 3, 2013, a probation officer filed a petition for discharge noting that Pestana was placed on probation for ten years in November 2009, but also stating that he was eligible for discharge " by having fulfilled the terms of said probation." The district attorney's office was not notified of the petition for discharge, nor were the victims, so they did not participate in the discharge process.

Page 180

On July 10, 2013, the superior court signed an order of discharge, which order was entered on July 18, 2013.

Upon learning of the discharge, the State filed on September 5, 2013, a motion for reconsideration stating its lack of notice and the failure to notify any victims in accordance with OCGA § 17-17-1 et seq. The superior court held a hearing at which the State, Pestana, Berrong, and Albach were present. At the hearing, the State explained that the original petition for discharge was apparently mistakenly generated due to a probation office data entry error that created a 2003 conviction date rather than the correct 2009 conviction date. The State did not introduce evidence to this effect, but Pestana's counsel also stated at the hearing that " [o]bviously there must have been a miscalculation to put his conviction date down wrong." Under that erroneous scenario, in 2013, the ten-year sentence would have ended, and Pestana would have been eligible for discharge as successfully completing his probation term. The discharge petition perpetuated this data entry error by accurately stating the ten-year sentence but incorrectly stating that Pestana had " fulfilled the terms of said probation" in 2013 -- after less than four years. Thus, the discharge petition was not couched in terms of early release prior to the end of the probation period, but instead it was phrased to reflect fulfillment of the term of probation. Despite the apparent error, the discharge petition was generated and submitted to the superior court.

The State also explained that the district attorney's office had not been notified of the discharge petition, and therefore, neither had any of the victims. The State argued that had it been notified, it would have been able to comply with the notification provisions of the Crime Victims' Bill of Rights under OCGA § 17-17-1 et seq. Albach testified [328 Ga.App. 456] at the hearing that he was afraid of Pestana, whom he characterized as " unstable" and well-armed.[6] After hearing the evidence and argument, the superior court granted the State's motion and reinstated Pestana's sentence,[7] ...


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