Opinion
A94A1182.
DECIDED OCTOBER 19, 1994.
Armed robbery, etc. Cobb Superior Court. Before Judge Robinson.
Mitchell D. Durham, for appellant.
Thomas J. Charron, District Attorney, D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
Defendant Thompson appeals his conviction of two counts of the offense of armed robbery, five counts of the offense of aggravated assault, and one court of the offense of possession of a sawed-off shotgun. Held:
1. The first enumeration of error alleges violations of the holding in Bruton v. United States, 391 U.S. 123 ( 88 SC 1620, 20 L.Ed.2d 476) in permitting two police detectives to testify concerning statements given by co-defendant Earl, who was tried along with defendant but chose not to testify at trial. However, this issue was not preserved for appellate review by motion or objection at trial. Consequently, we are precluded from reviewing this contention raised for the first time on appeal. Robinson v. State, 173 Ga. App. 260, 261 (3), 262 ( 325 S.E.2d 882); Altman v. State, 156 Ga. App. 185, 186 (3), 187 ( 273 S.E.2d 923).
2. In his second enumeration of error, defendant maintains that the trial court erred by not requiring the State to properly measure the shotgun as required by law. OCGA § 16-11-121 (5) defines a sawed-off shotgun as a shotgun or any weapon made from a shotgun with a barrel less than 18 inches in length or overall length of less than 26 inches. A police detective used a yardstick to measure the length of the barrel of the shotgun in question at less than 13 inches.
Defendant submits Wiley v. State, 204 Ga. App. 881 ( 420 S.E.2d 783) as authority that the weapon should have been measured in compliance with the policy and procedures of the "Department of Alcohol, Tobacco and Firearms." However, as in Wiley the defendant has failed to present evidence as to what those policies and procedures may be and did not mention this issue at trial other than in the course of colloquy concerning the jury charge. As no action or ruling was requested of the trial court, this enumeration of error raises at most a question as to the sufficiency of the evidence concerning the offense of possession of a sawed-off shotgun. We agree with the comments of the trial court that, where it is not a close question, great precision or specific methodology in the measurement of the dimensions of the weapon are not necessary to authorize conviction. As the measurement in the case sub judice indicates that the barrel of the shotgun was at least five inches shorter than permitted, the methodology used by the witness was sufficient to establish that the weapon at issue was a sawed-off shotgun. We also note that the shotgun in question having been introduced into evidence, the issue of its dimensions was one properly for resolution by the jury. Carson v. State, 241 Ga. 622, 625 (3) ( 247 S.E.2d 68). The evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of possession of a sawed-off shotgun. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560).
3. In his final enumeration of error, defendant contends that the trial court erred in conditioning the probated portions of his sentence upon the payment of restitution for the fee of his court-appointed attorney without conducting a hearing to determine his ability to pay. "`OCGA §§ 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.' (Citation and punctuation omitted.) Bridges v. State, 208 Ga. App. 555, 556 (1) ( 431 S.E.2d 164) (1993). Section 17-14-10 sets forth the factors to be considered by the court in determining the nature and amount of restitution, including the offender's present financial condition and future earning capacity and the amount of damages suffered by the victim. The trial court did not hold a restitution hearing, and the only mention of restitution at the sentencing hearing was the order itself. The court further did not enter specific written findings under OCGA § 17-14-10." Fonseca v. State, 212 Ga. App. 463, 464 (2) ( 441 S.E.2d 912). Accordingly, the case is remanded for a hearing and specific written findings pursuant to OCGA § 17-14-10. Fonseca, supra at 465. Judgment affirmed in part, reversed in part and case remanded. Pope, C. J., and Smith, J., concur.