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Nelson v. State

Court of Appeals of Georgia

October 16, 2014

NELSON
v.
THE STATE

Restitution. Cobb Superior Court. Before Judge Poole.

Page A. Pate, Jess B. Johnson, for appellant.

D. Victor Reynolds, District Attorney, John S. Melvin, Amelia G. Pray, Assistant District Attorneys, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.

OPINION

Page 884

Ellington, Presiding Judge.

Leonard Nelson entered a negotiated plea of guilty to violation of OCGA § 16-14-4 (a) of the Georgia Racketeer Influenced and Corrupt Organizations Act, see OCGA § 16-14-1 et seq. (" RICO" ), and the trial court sentenced him to ten years probation. The trial court ordered as a condition of probation that Nelson pay a total of $725,000 in restitution to his victims. On appeal, Nelson contends that the trial court erred because he established by a preponderance of the evidence that he lacked the financial resources to pay restitution in the amount ordered. He also contends that the trial court erred in awarding restitution to the victim named in Counts 6 through 12 of the indictment because the trial court entered an order of nolle prosequi at the State's request on those counts. We disagree and affirm for the reasons set forth below.

" Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence." OCGA § 17-14-7 (b). On appeal, this Court reviews the record " to determine whether each party has met his or her specified burden and whether a restitution award was supported by the preponderance of the evidence." (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga.App. 95, 96 (2) (658 S.E.2d 854) (2008). " It is well established that review of evidence by this Court is limited [329 Ga.App. 301] to questions of sufficiency." (Citation and punctuation omitted.) Tindol v. State, 284 Ga.App. 45, 48 (4) (643 S.E.2d 329) (2007).

1. The evidence adduced at the restitution hearing showed that Nelson was a real estate investor who borrowed money from individuals, often from their retirement accounts, to pursue various real estate deals. Nelson admitted that he stole money from his investors. Numerous victims testified at the restitution hearing and established the amounts they had tendered to Nelson through their testimony and through promissory notes and other instruments Nelson signed. Following the presentation of evidence, the trial court found that Nelson " had a plan, he had a purpose. He took from all these people. He had no intention of paying them back."

The trial court thereafter ordered that Nelson pay restitution to 22 victims in the total amount of $725,000, and that as a condition of probation Nelson make monthly payments toward that amount at $6,041.66 a month beginning on September 1, 2013. The total amount of restitution was inclusive of $230,000 to which Nelson had previously stipulated as " partial restitution." The stipulation also provided that " further restitution may be ordered after a Restitution hearing." Nelson does not contest that he had financial resources to repay the $230,000. Nelson maintains, however, that he established by the preponderance of the evidence that he lacked the financial resources with which to pay more than the stipulated amount of restitution, and that the trial court erred in finding otherwise. We disagree.

Subject to the provisions of OCGA § 17-14-10, the trial court " shall, in sentencing an offender, make a finding as to the amount of restitution due any victim, and order an offender to make full restitution to such victim." OCGA § 17-14-3 (a). In turn, OCGA § 17-14-10 sets forth a list of factors which the trial court shall consider in determining the nature and amount of restitution. These include " [t]he financial resources and other assets of the offender or person ordered to pay restitution ... ," " [t]he earnings and other income of the offender or person ordered to pay restitution," and " [a]ny financial obligations of the offender or person ordered to pay restitution, including obligations to dependents." OCGA § 17-14-10 (a) (1), (2), (3). The factors also include, however, the amount of damages, and the goal of restitution to the victim and rehabilitation of the offender. OCGA § 17-14-10 (a) (4), (5).

The State had the burden of demonstrating the amount of the victims' losses. OCGA § 17-14-7 (b). Nelson, however, had the burden of demonstrating his financial resources

Page 885

and the financial needs of his dependents. See id. Nelson testified at the restitution hearing that he had no assets of any value. According to Nelson, he was " 80 [329 Ga.App. 302] percent disabled," lived with his mother, and was unemployed. He testified that he received net disability benefits of $1,901 a month from the Department of Veterans Affairs (the " VA" ),[1] and that he paid monthly child support to his two youngest children in the amount of $725. ...


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