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Wilson v. State

Defendant cannot be punished as a felon under O.C.G.A. § 19-10-1 for abandoning his children in Georgia and leaving the state, because he was never in Georgia.

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Robert B. Wilson was charged in a special presentment with felony “Abandonment of Child,” in that, between 1994 and 1998, he allegedly abandoned his two minor daughters “by leaving the said children in a dependent condition after leaving the State of Georgia. . . .” Following a bench trial he was found guilty and received a three-year sentence, the maximum authorized by OCGA § 19-10-1 b. In two related enumerations of error, Wilson argues there is no evidence that his children were in a dependent condition, and no evidence that he abandoned them in Georgia for felony sentencing purposes. Since the evidence shows only misdemeanor abandonment, we affirm the judgment of conviction but vacate the felony sentence and remand for re-sentencing.

Viewed in the light most favorable to the trial court’s judgment, the record shows the parties stipulated that defendant and his former wife were divorced in a 1990 New Jersey proceeding in which the final order required defendant to pay $2000 per month child support for his two minor daughters. Defendant failed to meet this obligation and was in arrears. It was further stipulated that defendant “has never physically been in the State of Georgia.” Other evidence showed that in 1992, Wilson had been ordered to pay $35,100 in child support and alimony arrears. The New Jersey chancellor further ordered that all matters concerning the divorce, including child support, “be transferred to the jurisdiction of Georgia where the mother has resided with the infant children . . . . for over one 1 year. . . .”

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