Glover v. State

Carley, Justice,

dissenting.

The majority opinion offers neither a solution nor any guidance in this case of statutory construction. The majority initially relies upon Dunlap v. State, 231 Ga. App. 82 (497 SE2d 640) (1998) and Lawrence v. State, 228 Ga. App. 745 (492 SE2d 727) (1997) for the proposition that OCGA § 42-8-34.1 authorizes special conditions. However, the majority does not reconcile these two cases or even address the fact that they seriously differ from each other both in their analysis and in their interpretations of Manville v. Hampton, 266 Ga. 857 (471 SE2d 872) (1996) and Gearinger v. Lee, 266 Ga. 167 (465 SE2d 440) (1996). Instead, the majority finds that strict con*642struction of OCGA § 42-8-34.1 (c) against the State and in favor of a lesser penalty is mandatory “[r]egardless of whether OCGA § 42-8-34.1 serves as a basis for imposing special conditions of probation. . . .” Under such analysis, a strict construction of the phrase “special condition imposed pursuant to this Code section” is necessary even if the Code section does not authorize any special condition. In my opinion, rather than mandating this contradictory and illogical interpretation of OCGA § 42-8-34.1 (c), the rules of statutory construction require a different approach. “[C]riminal statutes must be strictly construed, but that does not imply that such statutes are not subject to logical interpretation.” Bunge v. State, 149 Ga. App. 712, 716 (3) (256 SE2d 23) (1979). “ Although criminal statutes must be strictly construed, they must first be construed consistent with genuine legislative intent and in a manner which avoids absurd and contradictory results ((cits.)).’ [Cit.]” (Emphasis supplied.) State v. Mack, 231 Ga. App. 499, 500 (499 SE2d 355) (1998). See also Reynolds v. State, 209 Ga. App. 628, 630 (1) (434 SE2d 166) (1993). Because OCGA § 42-8-34.1 itself does not authorize the imposition of any special conditions of probation, I believe that the language in subsection (c) is meaningless if construed literally and in a vacuum. However, by transposing the words therein, in accordance with the principle of statutory construction codified in OCGA § 1-3-1 (a), the meaningless phrase “pursuant to this Code section” should properly be construed as “pursuant to sections of this Code.” In my opinion, the trial court correctly applied OCGA § 42-8-34.1 (c) in revoking Glover’s probation for violating those special probationary conditions imposed pursuant to other Code sections and, consequently, I dissent to this Court’s reversal of the Court of Appeals’ affirmance of the judgment of the trial court.

In Manville v. Hampton, supra at 859 (2), and Gearinger v. Lee, supra at 170 (2), this Court recognized that OCGA § 42-8-34.1 (c) permits revocation of the entire balance of probation where a special condition has been violated. Although we did not specifically construe the statutory phrase “imposed pursuant to this Code section,”

“(s)tatutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation, (cit.), and this principle is particularly compelling when interpreting criminal statutes. (Cit.)” [Cit.]

State v. Johnson, 269 Ga. 370, 371 (1) (499 SE2d 56) (1998).

The rule which requires a strict construction of criminal *643statutes does not mean that the natural, reasonable, and . . . accepted meanings of the words, are not to be given effect, or that they shall be disregarded, even though in order to do so it be necessary to treat the rational language employed as meaningless.

Waldroup v. State, 198 Ga. 144, 149 (30 SE2d 896) (1944). The literal and obvious import of the language “imposed pursuant to this Code section” is that the same Code section must provide for the imposition of the special condition before a violation thereof can result in revocation of the entire probation. However, OCGA § 42-8-34.1 does not authorize the imposition of any special probationary conditions. As the Court of Appeals recognized, OCGA §§ 17-10-1 (a) and 42-8-35 are the Code sections which authorize special conditions of probation. Glover v. State, 239 Ga. App. 155, 158 (1) (521 SE2d 84) (1999). And, contrary to Lawrence v. State, supra, OCGA §§ 17-10-8 and 42-8-34 (e), rather than OCGA § 42-8-34.1 (d), authorize the imposition of fines. Glover v. State, supra at 159 (1). Therefore, OCGA § 42-8-34.1 (c), when construed literally, does not apply to the violation of any special conditions.

The phrase in issue cannot refer to the alternatives to incarceration set forth in subsection (b) and to the fines mentioned in subsection (d). To the contrary, the alternatives to incarceration are simply not “conditions” of probation and, as noted above, subsection (d) does not authorize the imposition of fines. Under Dunlap v. State, supra, subsection (c) would apply only where the special condition was imposed at a prior revocation proceeding. However, all of the provisions for special conditions, regardless of when they are imposed, are found in other code sections and are not imposed “pursuant to” OCGA § 42-8-34.1 (c). I decline to resort to the “subtle and forced constructions” urged by Glover or applied by Dunlap. See State v. Johnson, supra.

On the other hand, this Court cannot adhere to the literal language of a statute if that would require us to ascribe to the General Assembly an intention to do a futile and useless thing. City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970); Sams v. Leskanic, 220 Ga. App. 202, 203 (2) (469 SE2d 703) (1996).

“An exception to the general rule that the use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction is presented by the use of words the meaning of which in general acceptation is apparently obvious, and yet the purpose of the legislature would be defeated were the words employed construed literally. [Cits.]”

*644Bibb County v. Hancock, 211 Ga. 429, 439 (2) (86 SE2d 511) (1955).

“The legislative intent will prevail over the literal import of the words.” . . . “In the case of a mistake in a reference in a statute to another statute, . . . where the real intent of the legislature is manifest, and would be defeated by an adherence to the terms of the mistaken reference, the mistaken reference will be regarded as surplusage, or will be read as corrected, in order to give effect to the legislative intent.” . . . “Legislative enactments are not, any more than other writings, to be defeated because of mistakes, errors, or omissions, provided the intention of the legislature can be collected from the whole statute.” [Cits.]

(Emphasis supplied.) Humthlett v. Reeves, 211 Ga. 210, 219 (2) (85 SE2d 25) (1954). The transposition of words or phrases in a statute is permitted “where it is necessary to give the statute meaning and avoid absurdity, [and] where it is necessary to make the act consistent and harmonious throughout. . . .” 2A Sutherland Statutory Construction § 47.35, p. 277 (5th ed. 1992). In Georgia, courts must look diligently for the legislative intention, and “[g]rammatical errors shall not vitiate a law. A transposition of words and clauses may be resorted to when a sentence or clause is without meaning as it stands.” OCGA § 1-3-1 (a).

“Though criminal statutes are to be construed strictly against the State, they are also to be construed so as to give legislative intent precedence over the literal import of words and to avoid unreasonable or illogical results. [Cits.]” Felker v. State, 172 Ga. App. 492, 493 (1) (323 SE2d 817) (1984). I believe that the General Assembly did intend to accomplish an objective when it enacted subsection (c) of OCGA § 42-8-34.1. Considering the statute as a whole, I conclude that the legislative intent was to permit a revocation of the entire balance of a probationary sentence whenever the probationer violates any special condition properly imposed pursuant to the law of this state. This Court should effectuate this intention by utilizing the clear authority of OCGA § 1-3-1 (a) and construing the words “this Code section” in OCGA § 42-8-34.1 (c) to mean “sections of this Code.” In my opinion, therefore, the Court of Appeals correctly overruled Lawrence and Dunlap, and properly affirmed the judgment of the trial court revoking Glover’s probation.

I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent. *645Decided July 10, 2000 Reconsideration denied July 28, 2000. Dennis C. O’Brien, for appellant. Patrick H. Head, District Attorney, Maria B. Golick, Bruce D. Hornbuckle, Dana J. Norman, Assistant District Attorneys, for appellee.