The Court of Appeals of Georgia issued a new DUI opinion in Reese v. State on Feb. 18, 2009.
Summary of the opinion:
On appeal from his conviction for driving under the influence (DUI) and other crimes, Jason Reese argues that the evidence was insufficient as to per-se DUI and that the trial court erred when it denied his motion for mistrial and when it sentenced him. We affirm his conviction but vacate his sentence and remand for resentencing.
Facts from the opinion:
So viewed, the record shows that in the early evening of May 11, 2006, a woman heard a commotion outside, left her house, and saw Reese's van in a ditch on her property. Reese was kicking the van, cursing it, making rude gestures at it, and trying to push it out of the ditch. Reese then went into a neighbor's house and used the phone. From the time he entered the house until police arrived, the neighbor did not see Reese consume any alcohol. A police officer arrived at around 8:30 p.m. When the officer asked Reese how he was doing, Reese replied, "[D]runk[,] and you[?]" Reese gave the officer his name, used a racial slur to describe the unidentified person he thought had stolen his van, and explained that he had heard tires squealing, looked outside, and saw the van. When the officer pointed out that the windows, ignition and steering column of the van were intact, Reese could not explain how the van had been taken.
During this conversation, the officer noted that Reese's eyes were red, glassy, and bloodshot, that he smelled strongly of alcohol, and that his speech was slurred. The officer then administered a horizontal gaze nystagmus (HGN) test and a walk-and-turn test. Reese showed six of six signs of impairment in the HGN test and almost fell in the walk-and-turn test. A breath test administered at 9:45 p.m. showed a blood alcohol concentration of .245, three times over the legal limit. On his way to jail, Reese told the officer that his neighbor had stolen the van. The officer testified at trial that based on his experience, including hundreds of DUI arrests, Reese could not have been sober three hours before he was arrested.
At defense counsel's request, the lesser included offenses of false report of a crime and false report of a theft were included on the verdict form under the count for making a false statement (Count 1). Reese was found guilty and convicted of that count and both lesser included offenses as well as DUI per se (Count 2), DUI less safe (Count 3), and failure to maintain lane (Count 4). At sentencing, the trial court merged Count 3 into Count 2. Reese's motion for new trial was denied.
The court discusses the notion that a judge can not increase a sentence once a person has begun serving the sentence.
The record shows that on March 3, 2008, the trial court sentenced Reese to six years probation with not less than 240 days and not more than 300 days to serve in a probation detention center. At a second sentencing hearing on March 17, the trial court ordered that Reese spend 90 days in jail, to be suspended upon his transfer to the detention center. Reese began serving his sentence when he met with the probation officer on March 3, "and thus the trial judge did not have authority to increase [his] sentence" at a subsequent hearing. (Emphasis in original.) Fowler v. State, 188 Ga.App. 873, 875(7) (374 S.E.2d 805) (1988). "The court was authorized only to modify the sentence by revoking appellant's probation if the court concluded appellant had violated his probation by refusing to abide by the conditions." Id. We therefore vacate Reese's sentence and remand for resentencing.
