                               SECOND DIVISION
                                 MILLER, P. J.,
                            RICKMAN and REESE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    January 15, 2020




In the Court of Appeals of Georgia
 A19A1713. O’BRIEN v. THE STATE.

      RICKMAN, Judge.

      Following her plea of guilty to ten counts of theft by taking and her subsequent

sentencing, Marjorie O’Brien appeals, challenging two aspects of the restitution order

that was made a part of her sentence: whether she could be assessed any restitution

given that she was impoverished and whether she should be required to pay

restitution on counts that were nolle prossed. We find that the question of ability to

pay is premature but that the case must be remanded for the trial court to clarify

whether O’Brien waived restricting restitution to the counts for which she pled guilty.

      The record shows that O’Brien was indicted on two counts of racketeering and

81 counts of theft by taking for events occurring between January 1, 2010 and March

1, 2017, in which she, while serving as a probate judge, was alleged to have stolen
more than $430,000 in cash from the Atkinson County Probate Court. O’Brien

eventually agreed to plead guilty to ten counts of theft, for incidents occurring in

2010, and agreed that the State would recommend a sentence of between two and four

years in prison and an unspecified period of time on probation. She also agreed to a

restitution hearing to examine “her finances, her debts, her assets, [and] her ability to

work,” but the total amount of restitution was not fixed.

      At the separate sentencing/restitution hearing, the State presented a certified

public accountant who testified that the total shortfall for the years 2010 through

2016 was $433,267.50, and he provided a breakdown of that total by year. When

asked about the theft, O’Brien denied taking $433,000 but stated that she did not

know how much she had taken. After presentation of the evidence, the court

sentenced O’Brien to three years in prison, 30 years of probation, and restitution of

$309,267.50.1 The court reserved the decision on the amount of the monthly payment

O’Brien would be required to pay until O’Brien was released from confinement. The

written sentence provides, as a special condition of probation, that O’Brien “shall pay

restitution in the amount of $309,267.50 . . . for the benefit of the victim(s) Atkinson


      1
        Evidence was submitted to show that a bond covered $124,000 of the
county’s loss.

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County Commissioners, at a rate to be approved by the Court or the Community

Supervision Officer.” The written sentence further provided that the “Court sets

monthly payments to begin not less than 6 months after release.”

      1. Relying on the United States Supreme Court’s holding in Bearden v.

Georgia, 461 U.S. 660 (103 SCt 2064, 76 LE2d 221) (1983), O’Brien contends the

trial court erred by ordering restitution as a condition of probation because the

evidence showed she was unable to pay and had no ability to pay in the future.2 We

find this contention premature because O’Brien was not then required to make a

monthly restitution payment and had not failed to make such a payment. The trial

court reserved that determination for a later time, and therefore, the issue is not ripe

for our consideration. See McMahon v. State, 284 Ga. App. 192, 194 (2) (643 SE2d

236) (2007) (“appellate review of whether defendant is unable to pay restitution not

      2
        Testimony showed that O’Brien was age 50 or 52 at the time of sentencing.
As a consequence of the charges against her, she had resigned her position as a judge,
which paid approximately $57,000 a year, and was unemployed. She testified that she
had no personal income and her husband had income of approximately $600 a week.
She introduced into evidence the “Pre-Sentence Investigation Financial Sheet,” which
showed that her household monthly income did not cover her living expenses;
consequently, she and her husband depended on family members for additional
support. The couple have few assets of any value. But prior to her service as a probate
judge, O’Brien and her mother had a successful mortgage brokerage company, and,
prior to that, O’Brien had jobs working at an attorney’s office, a jewelry store, a
finance company, and other employers. She does not have a college degree.

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ripe without current harm such as revocation of probation or failure to pay

restitution”) (citation omitted); see also Bearden, 461 U.S. at 672 (II) (“[I]n

revocation proceedings for failure to pay a fine or restitution, a sentencing court must

inquire into the reasons for the failure to pay.”).

      2. O’Brien also contends the trial court erred by awarding restitution for the

counts that were nolle prossed. Because we are unable to determine whether the court

ordered an improper amount, we vacate the decision on restitution and remand for

clarification as explained below.

      Regarding restitution in criminal procedure, OCGA § 17-14-2 (2) defines

“damages” as “all special damages which a victim could recover against an offender

in a civil action . . . based on the same act or acts for which the offender is

sentenced.” (“Emphasis supplied.) See also OCGA § 17-14-9 (“The amount of

restitution ordered shall not exceed the victim’s damages.”). Thus, absent agreement,

a defendant cannot be ordered to pay restitution for a count on which he was not

convicted. See McMahon, 284 Ga. App. at 195 (3) (restitution cannot be ordered on

counts for which the defendant was acquitted or actions for which he was not

charged); Wilder v. State, 314 Ga. App. 905, 906 (726 SE2d 154) (2012) (restitution

may not be awarded based on nolle prossed charges).

                                            4
       Nevertheless, the State argues that any error by the court in assessing

restitution based on the total amount stolen, as opposed to the amount associated with

the counts for which O’Brien pled guilty, was invited by O’Brien during the plea

negotiation process. According to the State, “[o]ne of the key incentives for the State

to agree to dismiss the large majority of O’Brien’s charges was the prospect of

securing the opportunity for restitution for the full amount of her thefts from the

County.” And where the record shows that the defendant requested restitution and

agreed to the amount thereof in exchange for a more lenient sentence, the defendant

cannot complain on appeal that the restitution amount was not proven or that she was

ordered to pay damages arising out of incidents to which she did not plead guilty. See

McCullough v. State, 268 Ga. App. 445, 447 (2) (a) (602 SE2d 181) (2004); compare

Steele v. State, 270 Ga. App. 488, 490 (606 SE2d 664) (2004) (McCullough

inapplicable where “the State, not [the defendant], suggested the imposition of

restitution, as well as the amount”). Here, it is unclear if the trial court addressed this

waiver issue or, if it did, how it was resolved .

       The record shows that when placing its plea recommendation on the record, the

State referred to two different restitution amounts — the “amount owed” and the

“overall restitution amount” — but neither amount was set at the plea hearing:

                                            5
      So we will recommend a range of two to four years in prison, followed
      by a period of time on probation, which would be the subject of a
      restitution hearing where we would like the probation department
      pre-sentence to look at her finances, her debts, her assets, her ability to
      work. And then based on that report, the State will present an argument
      for an amount of money that should be paid each month, and for a period
      of time that she should have to pay it. So what is not determined as part
      of the plea is the exact amount owed, which is different than the overall
      restitution amount. I think that we will seek an overall restitution
      amount, but as a special condition of probation, figure out how much
      she can afford to pay each month, and then that’s what she should be
      required to pay. The State fully recognizes that, you know, we’re not
      running a debtors’ prison, and the law fully recognizes that the inability
      to pay restitution cannot result in you just will go to jail, then. And so
      we would be seeking an honest assessment of her ability to pay and try
      to get back for Atkinson County as much as we can.


(Emphasis supplied.) O’Brien and her counsel agreed to this recommendation. In

exchange, the State agree to nolle prosequi the remaining counts. The court accepted

“the recommendation or the agreement that has been reached in the case, and will

sentence [O’Brien] according to that recommendation.”

      At the sentencing/restitution hearing, the court asked if the parties had agreed

to the amount of restitution, and O’Brien replied that they had not. O’Brien then

argued that she should be ordered to pay restitution only on the counts for which she

                                          6
had entered a plea, which amounted to approximately $69,000. The State countered

that during plea negotiations, “[t]he correspondence and every single conversation

between [defense counsel] and myself was that the State was seeking $433,000 in

restitution.” The State continued that it always had been seeking the full amount

stolen as the total amount of restitution:

      But the agreement was we would let Ms. O’Brien plead to a series of
      charges, that we leave it up to the Court to decide the amount of
      restitution. And I believe that under that and those [parameters], the
      Court can impose the $433,000 in restitution. The whole reason and
      purpose, and [defense counsel] knows this, the whole reason and
      purpose of whittling down the number of charges was not to whittle
      down the restitution. It was to whittle down the length of time that she
      might actually serve on any prison sentence.


The court then interjected that “it sounds to me like you all did not agree.” The State

continued: “[W]e ended up at this number of charges but with an agreement that the

restitution will be decided by the Court, not limited by the arbitrary counts that she

ended up pleading guilty to.”

      Although the trial court ruled in the State’s favor, we are unable to determine

whether the trial court found as a matter of fact that O’Brien had agreed to pay the

full amount of restitution or whether the court concluded that it was authorized to

                                             7
award the full amount even if O’Brien had not so agreed, which would constitute

error. The court’s order is silent on this issue. We therefore vacate the order of

restitution and remand to the trial court for clarification. If the court awarded the total

amount of damages as restitution without O’Brien’s agreement, the restitution award

must be reentered so that it reflects only those counts to which O’Brien elected to

plead guilty. See McMahon, 284 Ga. App. at 195 (3). If the court determined that

O’Brien agreed to make restitution payments over time in the total amount of

damages proved by the State, then the court shall enter an order explaining that

conclusion and reentering the restitution order. See McCullough, 268 Ga. App. at 447

(2) (a); compare Steele, 270 Ga. App. at 490. O’Brien will be entitled to appeal that

decision.

       Judgment vacated and case remanded with direction. Miller, P. J., and Reese,

J., concur.




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