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Bishop v. State

Court of Appeals of Georgia, Fifth Division

June 6, 2017

BISHOP
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         In 2015, fifteen years after her conviction for possession of cocaine, Danielle Bishop filed a petition for the retroactive grant of first offender status under subsection (d) of OCGA § 42-8-66, a procedure which was added to the statute in 2015 and became effective on July 1, 2015.[1] The trial court dismissed the motion on the ground that the petition was not available as to sentences entered before its effective date. On appeal, Bishop argues that the trial court should have considered her motion on the merits. We disagree and therefore affirm.

         The relevant facts are not in dispute. On February 3, 2000, Bishop pled guilty to a felony charge of possession of cocaine and was sentenced to two years probation. On October 20, 2015, having found that her conviction appeared on a background check in Nevada, Bishop filed a petition "to resentence [her] felony conviction" under the First Offender Statute and OCGA § 42-8-66. The State responded to Bishop's motion with arguments including that because the Act provides that it "shall apply to sentences entered on or after" July 1, 2015, and because Bishop's sentence was entered before that date, the petition and procedures authorized by the statute were not available to her. After a hearing, the trial court dismissed Bishop's petition on this ground. Bishop then filed a timely notice of appeal in which she asserted that the trial court's order was "a final judgment of the Superior Court" such that this Court had jurisdiction over the appeal.

         Bishop argues that the trial court erred when it failed to consider the merits of her petition for retroactive application of first offender treatment. We disagree.

         Bishop brought her petition pursuant to OCGA § 42-8-66, which provides in relevant part as follows:

(a) An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment may, with the consent of the prosecuting attorney, petition the superior court in the county in which he or she was convicted for exoneration of guilt and discharge pursuant to this article. . . .
(c) In considering a petition pursuant to this Code section, the court may consider any: (1) Evidence introduced by the petitioner; (2) Evidence introduced by the prosecuting attorney; and (3) Other relevant evidence.
(d) The court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced and the ends of justice and the welfare of society are served by granting such petition.

(Emphasis supplied.)

         The question we face is a simple one: whether the 2015 Act's command that it "shall apply to sentences entered on or after" July 1, 2015, necessarily means that the petition authorized by OCGA § 42-8-66 (d) is not available to defendants whose sentences were entered before that date. 2015 Ga. L. Act 73, § 6-1.

[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant. . . . [T]oward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. . . . [W]hen the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

In re Whittle, 339 Ga.App. 83, 86 (1) (793 S.E.2d 123) (2016) (footnotes and punctuation omitted). We have seen no law suggesting that because the section of a law setting its effective date is, as here, not codified (see OCGA § 42-8-66, 2016 Supplement to Volume 29A [2014 edition], p. 110), that section has less dignity or force than other sections of the same law. On the contrary, at least one federal court considering this issue has concluded that even when the effective date of a statutory amendment was not codified, "it was enacted, and [thus] has the force of law." Patten v. United States, 116 F.3d 1029, 1033, n. 3 (4th Cir. 1997).

         Here, the General Assembly instructed that the Act, including OCGA § 42-8-66 (d), "shall apply to sentences entered on or after" July 1, 2015, and so we conclude that the petition authorized by OCGA § 42-8-66 (d) is not available to defendants ...


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