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NOBLES v. STATE

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Court of Appeals of Georgia.

NOBLES v. The STATE.

No. A01A1848.

Decided: February 19, 2002

Kim T. Stephens, Athens, for appellant. Kenneth W. Mauldin, Dist. Atty., Thurbert E. Baker, Atty. Gen., Michael E. Hobbs, Deputy Atty. Gen., David S. McLaughlin, Asst. Atty. Gen., for appellee.

Wayne Nobles pled guilty to multiple counts of theft by taking and one count of attempted theft by taking.   As part of Nobles' punishment, the trial court ordered him to pay $286,435 in restitution.   On appeal, Nobles contends that the trial court erred in failing to include in its order specific findings of fact under OCGA § 17-14-10, which sets forth the factors a court must consider in determining the nature and amount of restitution.   We agree.

 Before a trial court can order restitution, it must conduct a hearing to determine whether restitution is appropriate and, if so, the amount.1  Pursuant to OCGA § 17-14-10, the court must consider several factors in determining the amount of restitution, including:  the present financial condition of the offender and his dependents;  their probable future earning capacity;  the amount of damages;  the goal of restitution;  any prior restitution;  and the period of time the restitution order will be in effect.   Following the hearing, the court must make “[w]ritten findings of fact relating to each of the factors set forth in [OCGA] § 17-14-10.” 2  Failure to do so renders the order deficient.3

 After Nobles pled guilty, the trial court conducted a restitution hearing, during which evidence was adduced regarding the factors set forth in OCGA § 17-14-10.4  Despite hearing such evidence, the trial court did not include any specific factual findings in its order.   Rather, the order simply stated that the court “heard evidence ․ [and] considered the six (6) factors listed in OCGA § 17-14-10.”   As the trial court failed to include written findings of fact pertaining to the various factors set forth in OCGA § 17-14-10, its restitution order is deficient, and we must “vacate the judgment and remand the case to the trial court for entry of a new order based upon the required written findings.” 5

The case cited by the State, Cheeks v. State,6 does not require a different result.   In Cheeks, the offender did not produce any evidence during the restitution hearing.   Cheeks subsequently challenged the sufficiency of the evidence supporting restitution and demanded a new hearing.7  We held that, by failing to present evidence at the outset, Cheeks waived her right to do so.8  Here, waiver is not an issue.   And, as a long line of cases makes clear, a trial court is required to set forth its findings of fact in its order following a restitution hearing.9

On appeal, Nobles also contends that he is entitled to a new hearing.   Contrary to Nobles' contention, he is not automatically entitled to a new hearing.   The trial court's failure to include written findings of fact in its order, “alone[,] would not necessitate a new restitution hearing, since it could be rectified upon remand if the required factors were actually considered although not reflected in the order of restitution.” 10  If, however, the required factors were not considered, a new hearing may be required.11  Thus, upon remand, the trial court must ascertain whether a new hearing is required.

Order of restitution vacated and case remanded.

FOOTNOTES

1.   See Cannon v. State, 246 Ga. 754, 755-756(3), 272 S.E.2d 709 (1980) (addressing predecessor statutes to OCGA §§ 17-14-8 through 17-14-10).

2.   Helmeci v. State, 230 Ga.App. 866, 870(4), 498 S.E.2d 326 (1998).

3.   See Beall v. State, 252 Ga.App. 138, 139-140(4), 555 S.E.2d 788 (2001);  Cardwell v. State, 225 Ga.App. 337-338, 484 S.E.2d 38 (1997);  Revis v. State, 223 Ga.App. 470(1), 477 S.E.2d 880 (1996).

4.   In its brief, the State sets forth the testimony adduced at the hearing.   However, the transcript from the hearing was not included with the record on appeal.

5.   See Beall, supra at 140(4), 555 S.E.2d 788;  Cardwell, supra;  Revis, supra.

6.   218 Ga.App. 212, 460 S.E.2d 860 (1995).

7.   See id.

8.   See id. at 214, 460 S.E.2d 860.

9.   See Beall, supra.

10.   Cardwell, supra at 338, 484 S.E.2d 38.

11.   See id.

RUFFIN, Judge.

JOHNSON, P.J., and ELLINGTON, J., concur.

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