dissenting.
Because the majority errs by concluding that OCGA § 42-8-35 authorizes a trial court to order a defendant who has previously been found to be indigent to reimburse the government for the attorney fees arising from his defense, I dissent to the majority opinion.
The introductory clause of OCGA § 42-8-35 provides that a trial court “shall determine the terms and conditions of probation and may *62provide” that a probationer comply with any of 13 conditions of probation. Of those thirteen specific conditions, three are monetary conditions of probation that a trial court may impose.4 Those three monetary conditions do not include a provision requiring a probationer to reimburse a local government for the cost of his attorney fees. The introductory clause of OCGA § 42-8-35, however, has been construed to authorize a trial court, “in the absence of express authority to the contrary,” to exercise its discretion to impose any reasonable condition of probation.5 For several reasons, I conclude that it is not a reasonable condition of probation to require a probationer to reimburse a local government for the fees of his court-appointed counsel.
First, in interpreting what is a reasonable condition of probation, we must bear in mind that OCGA § 42-8-35 is a criminal statute that must be construed in favor of defendants.6 In addition, we also must consider that a Georgia court traditionally may award attorney fees only where specifically authorized by statute,7 and that the General Assembly is presumed to have known this law when it enacted OCGA § 42-8-35.8
Because we must interpret the phrase “reasonable condition of probation” most favorably to Pless, and because the General Assembly did not specifically grant trial courts the authority to require the reimbursement of attorney fees as a condition of probation, I cannot interpret the general introductory clause of OCGA § 42-8-35 to authorize trial courts to condition probation on the reimbursement of fees for court-appointed counsel.9
Finally, requiring a probationer to reimburse a local government for his attorney fees is not a reasonable condition of probation because it is not “ ‘reasonably related to the nature and circumstances of the *63offense and the rehabilitative goals of probation.’ ”10 In this regard, the federal supervised release statute11 has been interpreted not to permit federal district courts to require a defendant to pay attorney fees as a condition of supervised release. Under the supervised release statute, a district court has the general authority to impose conditions of release that, among other things, are “ ‘reasonably related’ to the goals of rehabilitation, deterrence, protection of the public, and training or treatment.”12 Several federal courts have concluded that the reimbursement of counsel fees is not related to any of the foregoing factors.13 Similarly, I conclude that conditioning probation on the repayment of attorney fees is not reasonably related in any tangible way either to Pless’s violations of the Henry County animal control ordinances or to his rehabilitation. Therefore, I conclude that it is not a reasonable condition of probation to permit trial courts to require indigent probationers to pay the fees of their court-appointed counsel.
Decided June 4, 2007. Charles A. Spahos, Solicitor-General, Gilbert A. Crosby, Assistant Solicitor-General, for appellant. E. Suzanne Whitaker, for appellee. Joseph H. Cowart, Fredric D. Bright, Charles C. Olson, amici curiae.For the foregoing reasons, I dissent to the majority opinion.
A trial court may require a probationer to “[m]ake reparation or restitution to any aggrieved person for the damage or loss caused by the probationer’s offense,” OCGA § 42-8-35 (a) (7); to “[m]ake reparation or restitution as reimbursement to a municipality or county for the payment for medical care furnished the person while incarcerated,” OCGA§ 42-8-35 (a) (8); and to “[r]epay the costs incurred by any municipality or county for wrongful actions by an inmate covered under the provisions of paragraph (1) of subsection (a) of Code Section 42-4-71,” OCGA § 42-8-35 (a) (9).
State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974).
See Chatman v. Findley, 274 Ga. 54, 55 (548 SE2d 5) (2001).
Harrison v. Harrison, 208 Ga. 70, 70 (65 SE2d 173) (1951). See Bennett v. State, 210 Ga. App. 337 (436 SE2d 40) (1993) (“There is no statutory authority in Georgia that authorizes attorney fees in a criminal action.”).
Butler v. State, 281 Ga. 310, 311 (637 SE2d 688) (2006); Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464, 466 (511 SE2d 160) (1999).
See United States v. Turner, 628 F2d 461, 467 (5th Cir. 1980) (interpreting then existing probation statute, 18 USC § 3651, which was similar to OCGA § 42-8-35, not to permit district court to condition probation on the reimbursement of fees for court-appointed attorney), cert. denied, 451 U. S. 988 (101 SC 2325, 68 LE2d 847) (1981).
Kellam v. State, 271 Ga. App. 125, 126 (608 SE2d 729) (2004), quoting Harrell v. State, 253 Ga. App. 440, 441 (559 SE2d 155) (2002). Accord Collett, 232 Ga. at 670 (conditions of probation have traditionally been used as a tool to promote rehabilitation).
18 USC § 3583.
United States v. Eyler, 67 F3d 1386, 1394 (9th Cir. 1995) (summarizing some of the requirements of 18 USC § 3583 (d)).
Eyler, 67 F3dat 1393-1394; United States v. Evans, 155 F3d 245, 249-250 (3rd Cir. 1998). But see United States v. Merric, 166 F3d 406, 411-412 (1st Cir. 1999) (concluding that the repayment of attorney fees can be made a condition of supervised release).