FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
June 6, 2017
In the Court of Appeals of Georgia
A17A0569. BISHOP v. THE STATE.
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.
1
See 2015 Ga. L. Act 73 (H. B. 310), § 6-1 (“This Act shall become effective
July 1, 2015, and shall apply to sentences entered on or after such date.”) In 2016, the
General Assembly again amended the first offender statutes, including OCGA § 42-8-
66, in ways not relevant here. See 2016 Ga. L. Act 460 (S. B. 367), § 6A-1.
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
2
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
3
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 SE2d 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 F3d 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
whose sentences were, like Bishop’s, imposed before that date.
Bishop seeks to avoid this conclusion by emphasizing the remedial purpose of
H. B. 310 and by arguing that a trial court’s grant of first offender status is a matter
of legislative grace that does not affect any vested rights. See, e. g., Canton Mills v.
Lathem, 253 Ga. 102, 105 (
317 SE2d 189) (1984) (the legislature could revive a
4
workers’ compensation claim which would have been barred by a previous limitation
period by enacting a new statute of limitation without violating the constitutional
prohibition against retroactive laws). As our Supreme Court noted in Canton Mills
itself, however, the “general rule” is that “laws prescribe only for the future” and will
be given retrospective operation only when “the language imperatively requires it, or
when an examination of the act as a whole leads to the conclusion that such was the
legislative purpose.” Id. at 103; see also Mosley v. Lowe,
298 Ga. 363, 365 (1) (
782
SE2d 43) (2016) (applying an amended statute retroactively when “the clear and
unambiguous terms of the amended statute provide for its applicability to arrests pre-
dating” the amendments’ effective date). In this case, the law clearly applies only to
sentences entered after July 1, 2015. That this result may not comport with what
Bishop perceives to be the remedial purpose of the statute is an argument properly
directed to the General Assembly rather than this Court. See Allen v. Wright,
282 Ga.
9, 14 (3) (
644 SE2d 814) (2007) (if a statute could be “amended or rewritten so as not
to be preempted” by federal law, “that is the responsibility of the General Assembly
and not the courts”); Whittle,
339 Ga. App. at 88-89 (1).
The trial court did not err when it dismissed Bishop’s petition.
Judgment affirmed. McFadden, P. J., and Bethel, J., concur fully and
specially.
5
A17A0569. BISHOP v. THE STATE.
MCFADDEN, Presiding Judge, concurring fully and specially.
I concur fully. The effective date provision is not ambiguous: OCGA § 42-8-66
is “effective July 1, 2015, and shall apply to sentences entered on or after such date.”
2015 Ga. L. Act 73 (H. B. 310), § 6-1. I nevertheless suspect — and write separately
to draw to the General Assembly’s attention the possibility — that we are enforcing
an unintended consequence.
The effective date provision is the penultimate sentence of a 65-page act. That
act extensively modifies the law of probation, particularly the imposition of probated
sentences in the first instance. See 2015 Ga. L. Act 73 (H. B. 310), § 1-1, enacting
OCGA §§ 42-3-52, 42-3-112; § 3-2, enacting OCGA §§ 42-8-102, 42-8-103, 42-8-
104; § 4-1, amending OCGA §§ 42-8-34, 42-8-35, 42-8-35.1, 42-8-35.2, 42-8-35.3,
42-8-35.4, 42-8-35.5, 42-8-35.6, 42-8-35.7, 42-8-39; but see amendments to OCGA
§§ 42-8-34, 42-8-38 (provision for revocation of probation). It would make no sense
to retroactively modify statutes governing the imposition of sentences, and any such
modifications would be constitutionally suspect. See Ga. Const. of 1983, Art. 1, Sec.
1, Par. X.
But I see no constitutional impediment to extending the relief afforded by
OCGA § 42-8-66 to persons sentenced before July 1, 2015. When Bishop was
sentenced, OCGA § 42–8–61 directed that she be “informed of the terms of [the First
Offender Act] at the time of imposition of sentence.” See Ga. L. Act 73 (2015) (H.B.
310), § 5-74. OCGA § 42–8–61 was amended and expanded in the act before us, but
not fundamentally altered. Id. OCGA § 42-8-66 was enacted to provide relief for
persons who were not afforded the information to which they were entitled under §
42–8–61. I see no reason to imagine that worthy candidates for that relief are rarer
among persons sentenced before July 1, 2015, than after.
2
A17A0569. BISHOP v. THE STATE.
BETHEL, Judge, concurring fully and specially.
Any attempt to discern legislative intent beyond the express language passed
by a legislative body is as practical and productive as attempting to nail Jello to the
wall. Further, it is not fitting for the judicial branch to endeavor to “correct” the errors
of the legislative branch other than in cases where the legislative branch has exceeded
the authority granted it by the people. For these reasons, I concur fully in Judge
Branch’s opinion.
Like Presiding Judge McFadden, I write separately to draw the attention of the
General Assembly to this issue. Any responsible and engaged citizen of Georgia over
the last seven years has seen the dramatic transformation of our criminal justice laws
and systems. Ms. Bishop believes she is in the class of people this transformation was
intended to positively affect. If so, the General Assembly has work left on this front.
