(specially concurring) :
The due process question discussed in Judge Tuttle’s opinion was not adjudicated by the district court. Appellant contended in the district court that he had disputed the amount ordered paid as restitution but the focus was on the equal protection question — that he could not make the weekly restitution payments and would be incarcerated as the result thereof. The due process question was presented in an amended complaint.
The state answered the due process question with proof that the amount of restitution was set by the probation department after investigation but that under the statute, Ga.Code § 27-2711,1 there would be an adjudication by the sentencing judge in case the amount was disputed. It was the state’s position that appellant had never disputed the amount.
Three pertinent facts appear from the record of the state proceeding before the state sentencing court for relief from the weekly payments, and from the federal court record. First, although appellant did not request such relief, the state court made it plain that there would be no adjudication of the amount due as restitution. The lack of adjudication where the amount is contested is flatly in the face of the statute, Ga.Code § 27-2711. Cf. O’Quinn v. State, 123 Ga. App. 231, 173 S.E.2d 409 (1970).
Second, the amount due by way of restitution was unknown at the time of sentencing, the amount having been supplied later by the probation department of the court. Third, appellant contested the amount due in that he was not responsible or was only one of several persons responsible for stolen goods which had not been recovered.
On remand the district court should first determine whether appellant is disputing the amount due. If so, appellant should be required to make a prima fa-cie case that the amount is incorrect. Once the prima facie case is made, a denial of due process would appear under the circumstances presented to date. The district court should then grant relief to appellant conditioned on the state granting due process to appellant in the determination of the amount due as restitution.
The facial attack on Georgia Code § 27-2711, unless wholly insubstantial, presents a question for a three-judge district court and was not considered by the district court. Nor did the district court reach the equal protection question arising from the proof of indigency. The district court avoided these questions on the ground that it did not appear that incarceration was imminent. It does appear that this conclusion of the court was incorrect. The probation supervisor made it clear in his testimony in the district court that appellant would be incarcerated for refusing to carry out the order of the court to pay and this regardless of his ability to pay. The sentencing court had conducted a hearing on ability and had required the specified weekly payment. It appears, how*829ever, that conditions changed thereafter in that appellant did not have steady employment. It is not clear just what the procedure would have been for appellant to be relieved due to the change in earnings.
The due process and equal protection questions are matters for reconsideration on remand. In formulating relief the district court should consider whether the questions presented are so analogous to habeas corpus relief as to require exhaustion of state remedies. See Jones v. Decker, 5 Cir., 1970, 436 F.2d 954; Johnson v. Walker, 5 Cir., 1963, 317 F.2d 418.
In sum, as modified, the result reached here is in accord with that reached in Judge Tuttle’s opinion.
. Fn. 1, Judge Tuttle’s opinion.