JONES v. STATE

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Court of Appeals of Georgia.

JONES v. The STATE.

SMITH v. The STATE.

Nos. A96A2376, A96A2377.

Decided: January 23, 1997

Parker & Day, Vallerina F. Day, McDonough, for appellant in case no. A96A2376. Schrade & Richardson, Melody Z. Richardson, Atlanta, for appellant in case no. A96A2377. Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

Defendants Brandon Jones and Michael Smith were convicted of burglary.   The trial court sentenced them to serve six years on probation, with the special condition that they would spend time in a probation boot camp and would remain incarcerated until there were places available for them in a boot camp.   As additional special conditions of probation, the court required defendants to pay restitution to the victim and to reimburse the county for the costs of their court-appointed attorneys.   On appeal, defendants accept the validity of their convictions but challenge the propriety of their sentences.

 1. Although the sentencing court may provide that a defendant will be incarcerated for a portion of his sentence and serve the remainder on probation, it cannot probate the entire sentence but require a period of uninterrupted incarceration as a condition of probation.  Pitts v. State, 206 Ga.App. 635, 637(3), 426 S.E.2d 257 (1992).  And that is what the court did here when it imposed fully probated sentences but then required that defendants be confined to jail until reporting to boot camp.   See Johnson v. State, 219 Ga.App. 547, 550(3), 466 S.E.2d 63 (1995), rev'd on other grounds, 267 Ga. 77, 475 S.E.2d 595 (1996).   Accordingly, the court's sentences must be vacated and the cases remanded to allow the court to resentence defendants.

We acknowledge that to some degree, this distinction is purely semantic, since on remand the court can effectuate the same result by providing that defendants serve a term of incarceration with the remainder of their sentences probated.   But it is a distinction which must be made in light of Pitts and Johnson.

 2. The trial court ordered restitution as a condition of probation, but the record does not reflect that a hearing was held or specific findings made regarding restitution as contemplated by OCGA §§ 17-14-8 and 17-14-10.   See Woods v. State, 205 Ga.App. 500, 422 S.E.2d 670 (1992).   The State attached exhibits to its briefs in an attempt to show that the factors set forth in these Code sections were properly considered.   Even if these exhibits were sufficient to show this, however, we could not consider them, since exhibits to briefs on appeal are not part of the record.   See Leatherwood v. State, 212 Ga.App. 342(1)(a), 441 S.E.2d 813 (1994).   If the trial court again imposes restitution as a condition of probation on remand, it (and the State) should ensure that a hearing is held, the necessary factors are considered, and the necessary findings are made-on the record.   See also Radford v. State, 223 Ga.App. 312, 313(2), 477 S.E.2d 428 (1996);  Howard v. State, 213 Ga.App. 542, 544(2), 445 S.E.2d 532 (1994).

 3. As another condition of probation, the sentencing court required defendants to reimburse the county for the costs of their court-appointed attorneys.   See OCGA § 17-12-10(c).   But the record provides no basis for a determination that defendants were or are able to pay for the employment of attorneys.   Thus, this portion of the sentences would have to be vacated even if we were not already vacating the sentences as a whole.   See Owens v. State, 187 Ga.App. 262, 263(1), 369 S.E.2d 919 (1988).   Cf. Miller v. State, 221 Ga.App. 718, 720(2), 472 S.E.2d 697 (1996).

4. We need not address defendants' remaining enumerations of error, as they are unlikely to recur on remand.

Judgments of convictions affirmed.   Sentences vacated and cases remanded for resentencing.

ANDREWS, C.J., and SMITH, J., concur.