1 OCGA § 16-5-21 (b) (2).
2 OCGA § 42-8-60 (a) (2). WHOLE COURT NOTICE: Motions for recons i deration must be physically

received

in our clerk’s of

fi ce within ten days of the date of decision to be deemed timely filed. http:/ /www .gaappeal s.us/rul es/ July 16, 2014



## In the Court of Appeals of Georgia A14A0635 . PESTANA v. THE STATE. DO-023 C D OYLE , Presiding Judge. In Novem ber 2009, J ames Andrew s Pestana entered a negotiate d plea of guilty to aggravat ed assault 1 and was sentenced und er the Fi rst Offender Act 2 to confinem ent for a period of ten years, w hich sentence could be served on p robation. In July 201 3, the superior cour t signed an o rder of

disc harge after P estan a’s probation officer filed a petition for discharge indicating that Pestana had fulfilled the term s of his probation. The cour

t subsequently re scinded th e discharge order and reinstated Pe stan a’s original sentence, and Pesta na appeals that ruling . Becau se the supe rio r3 Much of the fa ctual bac kground is ta ken from a transc ript of a c ivil proceedin g that was made part of the re cordin this case. We rely on it prim

arily for context, as it does no t directly bear o n the legal issues p resented o n appeal.

4 Pestana had a valid fire arm permit. 2 courthas plenar

y power to correct its ow n mista ken ruling du

ring the same term

of
cou rt, we a ffi rm. The record sh ows that P esta na was ch arged with two counts of aggravated assault with a de adly w eapon, a handgun, a

rising fro m a singl e inc ident between Pestana and two alleged victims, Gary Berrong a

nd Scott A lbach. 3 The incident was partof an esca lati ng neigh borhood dispute allegedly inv olving roving d ucks, a “mooning” incident, and land dis turbance causing wa ter on a roadway . Pesta

nahad b eco me estranged with certain neighbors, and in June 2009, after severa l confronta tions, B errong and Albach stopped their truck in the roadway and began taking photographs of Pestana for a pending law suit whil e he m owed his gr ass approximately

50 feet a way. Pestana, who almos t al ways car rie d a f ire arm, 4 pulled a handgun out of his pocket, pointed it at the men, and “told them they needed

to keep going.” Be rrong and Albach immediately complied. Based on this incident, Pesta na was ar rested an d charged with two c ount s o f aggravatedassault. In November 2009, Pestana entered a negotiated plea of guilty to5 Un der th e fi rst off end er s tat ut e, O CGA § 4 2-8 -60 (a) , a t ria l co urt ma y, “i n the case of a

defendant

who has not

been prev iously c onvicted of a felony , . . . without entering a

judgm ent of guilt

and with theconsent of the defendant: (1) [d]efer further proceedi ng and place

the defen dant on p r obation as pr ovided by law; or ( 2) [s]entence the defendant to a term of confinement as provided by law.”Based upon the sentencing sheet and the plea colloquy, it is apparent that the trial court sentenced Pestana to a term of ten y ears, albeit to be

served on p robation, pursuant to OCGA § 42-8-60 (a) (2). 3 count one (assa ulting Ber rong with a handgun), and the State agreed to nolle pro sequi count two (assa

ulting Alba ch with a handgun). In accor dance wi th the plea d eal, Pestana was “ sentenced

to confine ment f

or a peri od [of] . . . [ ten] year s,” noting that the sentencecould be se rved on prob ation. 5 The ter ms of his probation included conditions that h e not possess a ny firearm s nor have d

irect or indirect c ontact wi th Berrong, Alb ach, or their families. On July 3, 201 3, a p robation officer filed a petition for discharge noting that Pestana was placed on probation for ten years in Novem ber 2009, b ut also stat

ing that he was eligible for d is charge “ by having fulfille d the terms of said pr obation.” The district a ttorney ’s offi ce was no t notified o f the petitio n for disch arge, no r were th e victim s, so they did n ot partici pate in th e discharg e process. On July 10, 2013, the superior court signed an order of discharge, which order was en tered on J

uly 18, 2013.4

Upon learning o f

the discha

rge, the State fi led on Sept embe r 5, 2013, a m otion for reconsideration stating its lack of notice and the f ailure to notify

any vic tims in accordance with

OCGA § 17-17-1 e t seq. The superior court held

ahearing at which the State, Pestana, Berrong, and Albach w ere present. At the hearing, th e State explained that the original petition fo r discharge wa s apparently mistakenly generated due to a probation office data entry error that crea ted a 2003 conviction date rather than the correct

2009 c onviction da

te. The State did not introduc e evidence to this effect, but Pestan a’s cou

nsel also st ated a t the hear ing that “ [o]bviou sly there m ust have been a m

iscalcula tion t o pu t his conviction date down wrong.” Under that
erro neous scenario, in 2013, the ten-year sentence w ould have ended, and Pe stan a would have been eligible for

di sch arg e as su cce ss ful ly co mpl eti ng hi s p rob ati on ter m. The discharge petition perpetuated this data entry error by accurat ely st ating the tenye ar sentencebut incorrectly stating tha

t Pestana had “ fulfilled

the term s of said probation”

in 2013 – aft er less than four year s. Thus, the discha

rge petiti on was not couchedin terms of early release prior to the end of the p robation

period, but instead itwas phrased to r eflect fulfillment of the ter m of p robation. Despite t he apparent error, the discha

rge petiti on was generated and submit ted to the su

perior co urt.6 Albach also refer red to Pes tana’s heavy

use of prescr

iption drugs a s abasis for his fear. At an earlier civil hearing, Pestana had explained that he regularly used ox yc odone and hydrocodone for chronic pain due to an injury, as w ell as antidepr essants; all of which , Pestana tes tified, impair h is judgment.

7 The orde r stated t

hat Pesta na was pe rmit

ted to serv e the rem

ainder of his sentence o n probati on. 5 The State also expl ained that t he di stric t atto rney’s office had not been notified of the discha

rge petiti on, and therefore, neither had any o f the victims. The Sta

te arguedthat had it been notif ied, it w ouldhave been able to com ply with the notificat ion provisions of the Victims’ Bill of Rights under OCGA § 17-17-1 e t seq. Albach testifiedat the hea ring that he

was afr aid of Pes tana, w

hom he characterized
as “unsta ble” and w ell-arm

ed. 6 After h earing the

evidenceand argum

ent, the superior courtgranted the State’s motion and reinstated Pestana’ s sentence, 7 leaving open the option that it coul d entertain another discharge petition in t

he future . Pesta

na no w appeals the reinstatement of his sentence. 1. Pestana first argues that the superior court erred because t he State’ s motio n for reco nsi der ati on, fil ed 4 9 da ys after the court’s discharge order was entered, w as unt imely. Because of the unusual procedural posture of the case, P estana poin ts to no specific statutory

provision ex

plicitly requiring the State ’s m otion to be f iled within a certain date, instead

arguing that the motion was akin to a motion for new trial or8 See OCGA §§ 5-5-40 (a) (motion for new trial); 5-6-38 (a) (notice of appeal).
9 See, e.g., Buice v. State , 272 Ga. 323, 325-326 (528 SE2d 788) (2000).
10 OCGA § 17-9-61 (b). See gene rally OCGA § 17-9-61 ( a) (“ When a judgm ent has bee n ren der ed, e ith er pa rty may move i n arrest t

hereof f or any defect no t amendable which appears on the face of the r ecord or pleadings.”).
11 See OCGA § 17-9-61 (a). 6 an appeal, both of

which m ust be file d within 30 days. 8 But it appears from the record that the State did not have noti ce of thedischarge order bef ore 30 day s would have elapsed. Under these unique fac tual circu mstances, th e State s ought to invoke the superior court’ s authority

over its or

ders and j udgmen

ts issued within the same term of court. 9 The super

ior court e xplicitly

proceede d un der this a uthority in its reinstatement o rder; the refore, under thes e facts, the m otion was f unctionally

like a motion in arres t of judgm

ent, whi ch “m

ust be m ade durin g the term at which the judgm ent was obtain ed.” 10 Also, the motion a r ose out of a

defect a ppearing on

the face of the disc harge petition and order. 11 Therefore, the State ’s fail ure to take

action12 The term s of court f or Towns County

Superior Court, w hich is in the Enotah Circuit, are Janua

ry 1 a nd J uly 1. See OC GA § 15-6 -3 (17.1) (A). I n this case , the superior courtentered t

he order o f dischar

ge on July

10, 2013, and th e State f

iled its motion for reco nsiderati on on Sept ember 5, 2013, with in the same term of cour t.

13 Cf. Pope v. Pope , 277 Ga. 333, 335 (58 8 SE2d 736) (2003) (a pplying Buice and holding that “ considerin g all the c ircum stances, inclu d ing the lac k of notice to [the respo ndent] of

the final hearing, . . . t

he trial c ourt did not err in exe rcising it s inherent power to set aside the [final] judgm ent”).

14 OCGA § 17-17-5 (a).
15 OCGA § 17-17-7 (a).
16 OCGA § 17-17-8 (b). 7 within thirty days of the discharge order was not fatal to its moti on fil ed i n t he s ame term 12 upon becoming aware of the discharge. 13 2. Pest ana nex t arg ues tha t an y fail ure to n oti fy t he victim s o r allow t hem to participa te in the proceedings did not require reinstatement of his sentence. It is true that, as Pestana p oints out, t he victim notificat ion provisions at OCGA § 17-17-1 et seq. are typically requi red “wherever practi cable,” 14 “whenever possi ble,” 15 or “to the extent possib l e,” 16 so lack of notificat ion does not necessarily reflect an error requiring correct

ion by th e trial c ourt. Th e State’s appellate brief likewise focuses on the i mport ance of su ch notice, which ser ves the lau dable polic y of allowingcrim e17 See OC GA § 17-1 7-1.
18 See OCGA § 17-17-15 (c) (The Cri me V ictim s’ Bill of Rights “ does not confer up on a victim

any st anding to par

ticipate a s a party

in a criminalproceeding or to contest the disposition of any charge.”). 8 vi cti ms to be aware of the pr oceedings involving the a ccused. 17 But preterm itting the legal impor

t of the vic tims’ notificat ion in the dis charge pr

ocess, 18 the dis char ge in this case wa s based on a

patent e rror in the

discharge

petition – th at Pesta

na’s te nyear sentence was com

plete. Courts of recor

d retain f ull control

ov e r orders and judgm

ents during the term at which they were m ade, and , in the e xerciseof a sound discretio n, may

revise or vacate them. . . During the term of court at which a judgment is rend ered[, ] the [ trial] court has p ower, o n its own motion, to vacate

the same for irr

egularity , or beca

use it wa s impro vidently

or inadver tently entered
. The plenary control of the court over orders and jud

gments during the term at which they were rendered extends to all orders

and judgmen ts save those which are

founded upon verdict s. Th e power of the court, during the term, is described as ple nar y, to be used f

or the purp ose of prom

oting justice , but the court ’s discretio n, although bro a d, is not unbounded and should be exercised only upon suffic ient cause

shown. Hence, [courts] have recognized that this inherent

power sho uld

not be used un less som e me ritorious r eason is given therefor. H owever, the right t o determine what is a m eritoriou s reason is also addre ssed to thesound discre tion of the [ trial] judge, and19 (Punctuation and citations omitted; emphasis supplied.) Buice , 272 Ga. at

324-325, citing J

ones v. Hei lig Meye rs , 223 Ga. App. 277, 278 (477 SE 2d 411) (1996), Pled

ger v. Sta te , 193 Ga. App. 588, 589 (2) (a) (388 SE2d 425) (1989), Giddeons v . State , 156 Ga. App. 800, 801 (275 SE2d 370) (1980).

20 S ee genera lly Hipp v. S tate , 293 Ga. 415, 416 (74 6 SE2d 95) (2013) (T he “‘plenary control of

the court o ver order s and judgm ents during t

he te rm at which they were rendered e xtends to al l orders an d judgm ents save t hose which are founded upon verdic ts.’” ), quoting Buice , 272 Ga. at 325. 9 this [C]ourt

will not reverse hi s or her de cision unles s such discretion is manif estly abused. 19 Here, the superi or court rev isited a d ischarge o rder wh ich, on its face, contained an inte rna l inconsistency based on what the court later learned was an inadvertentdata entry er

ror in th e probation office. As a result, the discharge order incorrec tly

statedPestana

had “fulfilled the term s” of his ten-year sentence less than four years into it. This is precisely the type of error t

hat a t rial cour

t should have discretio n to corre ct. Further, the discharge order was not a final judgm ent founded on a jury verdict such that it viol ated double jeopar dy principles or was unreviewable by the trial court absent a tim ely m

otion for new trial. 20 The discharge order was part of the procedure effectu ating the fi rst of

fende r disp osit ion o f Pest ana’s case, a nd Pes tana’s sentence remained unaltered from that

which wa s lawfull

y entered pursua

nt to his guilt

y plea.21 272 Ga. 323 (528 SE2d 788) (2000).
22 See id. at 323-326.
23 Id. at 324
. 10 Nor did the cour

t change P estana’ s eligibilit y for first off ender tre atment accord ed by his original plea and sentence. The fact that

the case was esse ntially

closed af ter the dis charge doe s not affect the superior c ourt’s a

uthority to revisit it

under the f

acts pres ented. F or exam

ple, in Buice v. State , 21 the Supreme Court addressed a trial cour t’s auth ority to vacate

a nolle prosequi order tha

t it had pre viously entered. 22 As the Court explaine d, a “[n ]olle prosequi is the Stat e’s formal action on its decision not to further prosecute an indictm ent . It is wel l establish ed that ent ry of a nolle pro sequi term

inates the prosecutio n pending on tha t indictment and

that the S tate cann ot try

a defenda

nton
acharge that has been no l prossed .” 23 Thus, after the entry of a nolle prosequi order, that case is n o longer pending bef ore the tr ial court, and the def

endant is f

ree fro m prosecutio n on that indic tment . Even so, the Supreme Court explained that the trial court ha d i nh ere nt aut ho rit y to vac ate its own no ll e pr os equ i o rde r wi th in th e sa me term of court (based

on new evidence the trial court was not aware of when it entered24 See id. at 326.
25 Id. at 326
. 11 the nolle pro sequi) an d effect ively r einstate t he original

indictm ent. 24 The Cou rt’s rationale was not a narrow one limited to nolle pro sequi order s, but instead br

oadly basedon “well-established Georg i a law regarding the plenary control courts of record retain to revise or vacate

orders an d judgm ents durin g the term at which they were entered.” 25 For the fore going r easons , we co nclude that the trial court did no t err by rescinding the discharge order and reinstating Pestana’s original sentence. Judgmen t affirmed. A ndrews, P. J., Elli ngton, P. J., Dill ard and McMillian, JJ

., concur. P hipps, C. J. and Mi ller, J. , dissent.1 Hipp v. S tate , 293 Ga. 415, 416 (746 SE2d 95) (2013). A14A0635 . PESTANA v. THE STATE.

M ILLE R , Judge, dissenting. I res pectfully

dissent to th e ma

jority ’s opinion

because a

trial cour

t that ha s la wfully discharge d a defend ant from a sentenc e under the

First Of fender A ct, resulting in th at def

endan t’s compl ete exone ration, c annot subsequ ently reinstate the defendant ’s proba

tion. Although a trial j udge has ple nary p ower ove r its order s and judgm ents during the t erm of court in which the y are

entered, 1 when ther

e is no error, there is nothing to correct and a trial judge does not have authority to reinstat e a defend ant’s First Of

fender sentence, regardle ss of the term of court. U pon a tria l2

judge ’s review and exerc ise of his discr etion to disc harge a F irst

Offender, the trial courtno longer ha s any j urisdiction in the m atter. The defendant’s c onstitutio n al rights have been restored and the def

endant no lon ger has a c riminal recor d. If thi s
were not the case, the d efendan t could be placed in double jeopardy, i.e., punished twice for the same crim

e, eventhough he did everything he was supposed to do under the terms of the First Off ender Act and has relied on the trial court’s order di sch arg in g h im. The Supreme Court of Ge org ia has held that “[t]he underly ing humanitarian purpose of the fir st offender statutes is to protec t the fir st offenderfro m the st ig ma of having a cr

iminal record[ .]” ( Citations an d punctuation omitted.) Davis v. State , 269 Ga. 276, 277 (2) (49 6 SE2d 699) (1998). T his purpose cannot be o verstate d. The First Offender Act gives defendant s aone-time opportunity for rehabilitation, and an opportunity

to be gainfully employed after a criminal infraction with no record wher e the trial cour

t determ ines that th e defenda

nt is worth

y of suc h an o pportuni ty. A probatedsentence entered under this Actis prelim

inary only. Consequently, un like other probated s entences, a defenda nt o n First Of

fender pr obation “ is not m erely servinghis sentenc e outside th e confine s of prison, but is serving a peri od on probation to determ

ine wheth er or not [ he] may berehabilitated.” State v. Wiley , 2333

G a. 316 , 31 8 (2 10 S E2d 790 ) (19 74) . Wher e th e de fen dan t su cces sfu lly f ulfills th e ter ms of his proba

tion or is released b y the trial cour t prior to the ter minat ion of the probationary

period, the defendant’s felony crim inal slate is wipedclean and his civi l rights and liberties are unaffected. See OCGA § 42-8-62 (a). The Fir st Offe nder Act

pertinently prov ides: Upon fulfill men t of the te rms of probation, upon release

by the cour

t prior to the term ination of the period there of

, or upon releas e from confinem ent, the defen dant shall b e discharged without court adjudica tionof g u ilt. . . . the discharge sh all comple tely exon erate the d ef endant of any criminal purpose . . . a nd the defendant shall not be considere d to have a c riminal convict ion. (Em phasis supplied.) OCGA § 42-8-62 (a). “ Where [as here] the langua ge of a sta tute is plain and su sc eptible t o only one natural a nd reasona

ble constr uction, [ we] m

ust construe the statute

accordingly.” Luangkhot v. State , 292 Ga. 423, 424 (1) (736 SE2d 397) (2013). “[T ]he plain langua

ge of [O CGA § 42- 8-62 (a)] provides tha t, with cer tain exceptions [not appl icable here ], o nce a fir st offender has been discharge d without
an adjudication of guilt, he or she s tands compl etely exonerat ed and shall

not be consideredas having been convicted of a crime.” (Footnote om itted.) Jackson v.4

State , 299 Ga. App. 356, 358 (1) (68 3 SE2d 60) (2009). B ased on the plain language of OCGA § 42-8-62 (a), once Pestana w as dischar ged, he w as com

pletely exonerat ed. C ons equ ent ly, regardle ss of the term of court, a t this point th e case w as no longe r pending before t

he tria l court, a

nd the trial court lac ked authori ty to reconsider its ruling or enter any order in Pestana’s ca se. In so holding, I reje ct the Sta te’s ar gument and the majority ’s opinion that the trial court retained jurisdiction because the petition for discharge was based on an inadvertentdata e rror en tered into a prob atio n sup ervis or’s computer. At the he aring
on the m otion for reconsideration, the State ar gued that: “

the inf orma tion that the individual who remains unknown entered into the computer for proba tion supervi sion purposes, indi cated that [ Pesta na’s] co nvic tion date wa s a con vict ion d ate of 2003 [.]” The State did not support its argum ent with a ny documents, testimony

or other factual evidence. Moreover , de fe nse counsel specific ally e mphas ized the lack of any supporting

evidenceby

stating at the hearing that nothing presente d to the trial court shows tha t there was a misrep resentati on or cleri cal error. Contrary to the m ajor ity’ s c ontention, Pestana’ s discharge under the F irst Offender Act was law ful and not b ased on a pa tent error, or any

error, in the disch arge petition. Both

the petitio n for disch arge and the tri al court’ s order of discharge

clearly5

state on their face that Pestana was placed on probation on November 1 6, 2009 f or
aperiod of t en yea

rs. More over, the

fact that the dis charge pe tition was not expres sly couchedin terms of an early release, does not mean that the probation officer mista kenly believed t

hat Pesta na had fulf

ill the entire term of his probation. Rather t he probation of

ficer’ s language t

hat Pesta na fulfill ed the ter

ms of his probatio n
mere ly reflec ts that he successf

ully co mplie d with his pr

obation conditions, which is ordinarily a prerequisite for obtaining an early discharge. He re , the trial court conducted its own review of Pestana’s crim inal record before entering the order discharging Pestana without an adjudication of guilt. In dischargin g Pestana, the trial court was well aware that he had served less than f

our years on probation , and theFirst Of fender A ct specif

ically authorize s early

discharge when a defendant, such as Pestana, has complied w ith the terms of his probation. See OCGA § 42-8-62 ( a). Sin ce there was n o error i n th e discharge petition, there was nothing for t

he trial c ourt to cor

rect wi thin the ter

m of c ourt. Pestana was given Fi rst Offender t reatment, a nd his s ubsequent di scharge shows that the First Offender Act served its purpose in this case. While I a gree that notificat ion of the vict

ims pr ior to the ear ly disc harge of a

First Of fender’ s probation is the best practice, neither th e term s of Pesta na’s First Off

ender prob ati on, nor the6

First Offender Act req uired it. Pestana’ s lawful early discharge

in accordance wit

h the First Offender Act restored

his constitutional rig ht s an d co mpl ete ly ex on era ted hi m, so that going f

orward h e would ha

ve no crim

inal reco rd. To decide thi s case as the majority suggests mea

ns that def

endants, w

ho have have been discharged under the First Offender Act, ca n no longer rely on t

heir discharge order . Accord ingl y, I would revers e the t rial c ourt ’s order re instating Pesta na’s probat io n. I am authorize d to state t hat Chief Judge Phipps joins in th is dissent.