Judge Brian Rickman, Georgia Court of Appeals. (Photo: John Disney/ALM)

The state Court of Appeals has given a former south Georgia probate judge another opportunity to challenge more than $300,000 in restitution she was ordered to pay after pleading guilty to stealing more than $430,000 from the court's coffers.

Former Atkinson County Probate Judge Marjorie O'Brien was arrested and indicted in 2017 on charges of racketeering and 81 counts of theft by taking related to her theft of the money between 2010 and 2016.

She ultimately pleaded guilty to 10 counts of theft in return for a sentence of between two and four years in prison, and unspecified probation.

O'Brien also agreed to pay an unspecified amount of restitution after the court held a hearing on "her finances, her debts, her assets, [and] her ability to work," according to the appellate order.

At that hearing, a certified public accountant said O'Brien's ill-gotten gains totaled $433,267.

After the hearing Atkinson County Superior Judge Gary McCorvey sentenced O'Brien to serve three years in prison and 30 years on probation, and ordered her to repay the county $309,267 in restitution. The opinion noted that $124,000 of the losses had been covered by a bond.

The judge said he would determine O'Brien's monthly restitution payments after her release.

According to the Georgia Department of Corrections website, O'Brien, 51, is currently incarcerated at Pulaski State Prison with a maximum possible release date of Feb. 19, 2022.

O'Brien appealed on two issues in 2019. First, she argued that McCorvey should not have ordered her to pay restitution because she has no money and would be unable to pay any future assessments.

As noted in the opinion, O'Brien, who has no college education, resigned as a judge when she was indicted. Her husband made about $600 a week, and the couple "have few assets of any value."

O'Brien also argued that the judge erred by ordering restitution for the criminal counts that the prosecutor agreed to drop in exchange for her guilty plea. Calculating only what she should owe based on the counts she pleaded to, O'Brien argued she should have to pay no more than about $69,000.

The Jan. 15 appellate opinion, authored by Judge Brian Rickman with the concurrence of Judges Yvette Miller and Clyde Reese, said the issue of O'Brien's ability to pay is not one that can be considered at this point, because she has not yet been ordered to make any payments.

"The trial court reserved that determination for a later time, and therefore, the issue is not ripe for our consideration," Rickman wrote.

But Rickman said the issue of how much O'Brien must repay is one the trial judge is going to have to reconsider.

According to Georgia law regarding restitution, he wrote, a victim can only recover civil damages "based on the same act or acts for which the offender is sentenced."

"Thus," he said, "absent agreement, a defendant cannot be ordered to pay restitution for a count on which he was not convicted."

"Nevertheless," he continued, "the state argues that any error by the court in assessing restitution based on the total amount stolen, as opposed to the amount associated with the counts for which O'Brien pled guilty, was invited by O'Brien during the plea negotiation process."

The state had argued that one of its reasons for offering the plea was to recoup the losses the county suffered.

Prior precedent holds that a defendant cannot agree to pay restitution in return for a plea and then "complain on appeal that the restitution amount was not proven or that she was ordered to pay damages arising out of incidents to which she did not plead guilty," Rickman wrote.

"Here, it is unclear if the trial court addressed this waiver issue or, if it did, how it was resolved."

The record indicated the court and prosecution posited that what O'Brien actually owed and what she would be ordered to pay might be two different sums, the opinion said.

According to a transcript of the plea hearing quoted in the opinion, McCorvey had said there would be a restitution hearing to look into O'Brien's finances and ability to pay, after which the state "will present an argument for an amount of money that should be paid each month, and for a period of time that she should have to pay it. So what is not determined as part of the plea is the exact amount owed, which is different than the overall restitution amount."

As a condition of her probation, O'Brien will be assessed a certain monthly amount based on her ability to pay, the judge said.

"The state fully recognizes that, you know, we're not running a debtors' prison, and the law fully recognizes that the inability to pay restitution cannot result in you just will go to jail, then," McCorvey is quoted as saying.

O'Brien agreed to the arrangement and the state agreed to nolle pross all but 10 of the counts.

But at the sentencing hearing, when McCorvey asked whether there had been an agreement on a restitution amount, O'Brien said there had not.

"O'Brien then argued that she should be ordered to pay restitution only on the counts for which she had entered a plea, which amounted to approximately $69,000," the opinion said.

The prosecution countered it was always seeking the full amount of restitution, but agreed to leave that sum up to the court, Rickman wrote.

McCorvey said it didn't seem as though the parties had reached an agreement but nonetheless ruled for the state, the opinion said.

The appellate panel was "unable to determine whether the trial court found as a matter of fact that O'Brien had agreed to pay the full amount of restitution or whether the court concluded that it was authorized to award the full amount even if O'Brien had not so agreed, which would constitute error. The court's order is silent on this issue," Rickman wrote.

McCorvey was instructed to clarify his ruling on remand.

"If the court awarded the total amount of damages as restitution without O'Brien's agreement, the restitution award must be reentered so that it reflects only those counts to which O'Brien elected to plead guilty," Rickman wrote.

But if he "determined that O'Brien agreed to make restitution payments over time in the total amount of damages proved by the state, then the court shall enter an order explaining that conclusion and reentering the restitution order."

The state is represented by Alapaha Circuit District Attorney Dick Perryman and Assistant State Attorney General David McLaughlin; O'Brien is represented by Coleman Talley partner J. Converse Bright.

None of the lawyers immediately responded to requests for comment Thursday.