(Laws 1833, Cobb's 1851 Digest, p. 836; Code 1863, § 4539; Code 1868, § 4559; Code 1873, § 4653; Code 1882, § 4653; Penal Code 1895, § 1041; Penal Code 1910, § 1067; Code 1933, § 27-2510; Ga. L. 1956, p. 161, § 3; Ga. L. 1964, p. 494, §§ 1, 2; Ga. L. 1985, p. 283, § 1.)
Law reviews.- For article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Trial court erred in determining that a defendant's challenge to the constitutionality of O.C.G.A. § 17-10-10 was waived; however, the Supreme Court of Georgia rejected the defendant's challenges to consecutive sentences imposed under the statute on due process grounds, equal protection grounds, Sixth Amendment grounds, and rule of lenity grounds. Rooney v. State, 287 Ga. 1, 690 S.E.2d 804, cert. denied, 562 U.S. 854, 131 S. Ct. 117, 178 L. Ed. 2d 72 (2010).
Consecutive sentencing authorized when crimes separate and distinct.
- This section gave the trial judge authority to impose consecutive sentences if separate and distinct crimes are charged. Hart v. State, 137 Ga. App. 644, 224 S.E.2d 755 (1976).
It is within the discretion of the trial judge to impose consecutive sentences for separate offenses. Smith v. Ault, 230 Ga. 433, 197 S.E.2d 348 (1973); Hoerner v. State, 246 Ga. 374, 271 S.E.2d 458 (1980); Hambrick v. State, 256 Ga. 148, 344 S.E.2d 639 (1986).
Defendant who was convicted of simple battery and criminal trespass after the defendant attacked the defendant's spouse and the spouse's mother and broke the windshield and at least one other window on the spouse's car was not subjected to cruel and unusual punishment because the trial court imposed a sentence of 12 months' incarceration for each charge, and ordered that the defendant serve the sentences consecutively. Hill v. State, 259 Ga. App. 363, 577 S.E.2d 61 (2003).
Trial court properly imposed separate sentences on the defendant who was convicted of burglary, battery, kidnapping, and aggravated assault because those were separate crimes, and the court did not violate the defendant's rights under O.C.G.A. § 17-10-10 when the court required the defendant to serve the defendant's sentences consecutively. Woodson v. State, 268 Ga. App. 731, 605 S.E.2d 822 (2004).
After a defendant pled guilty to thirteen different criminal offenses, the trial court explained how the sentences on those various convictions would run, including sentences to three consecutive 20-year terms, and the defendant failed to show that the defendant's sentences were illegal because nothing in O.C.G.A. § 17-10-10 implicated the rule of lenity. Dowling v. State, 278 Ga. App. 903, 630 S.E.2d 143 (2006).
Trial court's imposition of four separate 20-year sentences upon the defendant for each of the four aggravated-assault convictions and ordering those sentences to be served consecutively was not excessive punishment because the 20-year sentence for each separate aggravated assault fell within the statutory range and the defendant failed to demonstrate that the punishment was so excessive in proportion to the offenses as to shock the conscience. Miller v. State, 351 Ga. App. 757, 833 S.E.2d 142 (2019).
Authority for consecutive or concurrent sentence is in court, not jury.
- Authority to make a determination as to whether sentences will run consecutively or concurrently is in the court and not in the jury. Lee v. State, 107 Ga. App. 484, 130 S.E.2d 814 (1963).
Whether other sentences in same or different terms or courts.
- It is within the discretion of the judge to impose consecutive sentences for separate offenses, and to authorize the sentence or sentences the judge imposes to be served consecutively to sentences imposed, whether by jury or judge, both within the same term of court or at a separate term of court or in a different court or courts. Heard v. State, 135 Ga. App. 685, 218 S.E.2d 866 (1975).
Section does not limit such discretion as to sentencing for separate crimes.
- This section did not constitute a limitation upon the discretion of the trial court, derived from the common law, to set sentences imposed as a result of conviction for a new crime that is separate and distinct from an earlier sentence for a different crime to commence at the termination of any sentence previously imposed. Turner v. State, 151 Ga. App. 631, 260 S.E.2d 756 (1979).
Section does not limit discretion.
- This section did not constitute a limitation upon the discretion of the trial court, derived from the common law, to set sentences imposed as a result of convictions for a new group of offenses that are separate and distinct from previous sentences to commence at the termination of all sentences previously imposed. Amerson v. Zant, 243 Ga. 509, 255 S.E.2d 34 (1979); Schamber v. State, 152 Ga. App. 196, 262 S.E.2d 533 (1979).
Use of word "sentences" contained in O.C.G.A. § 17-10-10(a) meant that the defendant should be sentenced separately for each count of a multicount indictment or accusation. To hold otherwise would make subsection (a) of that section meaningless, for if a court could impose one aggregate sentence for several counts of one indictment or accusation, there would be no need to determine, or specify, whether the sentences are to run concurrently or consecutively. Dilas v. State, 159 Ga. App. 39, 282 S.E.2d 690 (1981).
For case when concurrent sentence doctrine inapplicable because of nonmerger of offenses, see Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472, cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 425 (1979).
Misdemeanor sentences may be consecutive.
- This section referred to felony cases only, but in misdemeanor cases the court may also provide that the terms shall be served consecutively. Murphy v. Lowry, 178 Ga. 138, 172 S.E. 457 (1933).
Judge sets the sentence for misdemeanors, and under subsections (b) and (c) of this section, can properly prescribe sentences to run consecutively and to commence running at the conclusion of the sentences imposed under felony counts, and any sentence the defendant is presently serving. Mealor v. State, 135 Ga. App. 682, 218 S.E.2d 683 (1975).
Authority as to instruction on sentences unchanged by amendments.
- Nothing in Ga. L. 1956, p. 161, § 3 or Ga. L. 1964, p. 494, §§ 1 and 2 changes the authority of the court to determine whether the court should instruct the jury concerning concurrent and consecutive sentences, or provide itself that the sentences should run consecutively. Baker v. State, 127 Ga. App. 403, 194 S.E.2d 122 (1972).
Sentences concurrent by operation of law when verdict silent.
- This section effected, by operation of law, the running of sentences concurrently when the original sentencing verdicts are silent on the matter. Atkins v. State, 132 Ga. App. 417, 208 S.E.2d 190 (1974).
Presence of defendant for pronouncement whether additional sentence consecutive or concurrent.
- Determination of whether a sentence is to be served concurrently with or consecutively to another sentence which the defendant is serving at the time is a part of the second sentence and should be pronounced in the presence of the defendant. Fleming v. State, 113 Ga. App. 113, 147 S.E.2d 480 (1966).
Defendant can be absent when concurrent sentences pronounced.
- It is not necessary that the prisoner be present in court or be represented by counsel for the entry of the concurrent sentences. Johnson v. Caldwell, 232 Ga. 200, 205 S.E.2d 857 (1974).
O.C.G.A. § 17-10-10 must yield to O.C.G.A. § 42-8-36, pertaining to reporting duties of probationers, if there is any conflict between the statutes. Downs v. State, 163 Ga. App. 485, 295 S.E.2d 152 (1982).
Ordering consecutive life sentence if jury does not indicate preference.
- Trial court did not exceed the limits of the court's discretion in sentencing the defendant to four consecutive life terms for two counts of murder and two counts of armed robbery since the jury rejected the death penalty and recommended mercy without specifying that the life sentences run consecutively. Cargill v. State, 256 Ga. 252, 347 S.E.2d 559 (1986).
Modification of sentence held improper.
- Modification of a defendant's oral sentence to make the defendant's sentence run consecutively to any sentence that the defendant was currently serving increased the defendant's punishment and violated the prohibition against double punishment or jeopardy. Pierce v. State, 184 Ga. App. 168, 361 S.E.2d 47 (1987).
Resentence proper.
- Trial court did not err in resentencing the defendant to a probated sentence of ten years for a theft by receiving conviction, upon filing a motion under O.C.G.A. § 16-8-12, with such sentence to commence ten years after the beginning of a term of imprisonment for an armed robbery conviction as: (1) the revised sentence did not impermissibly increase the original sentence imposed; (2) the revised probated sentence effected no change in the probation term to be served following the confinement for armed robbery, as both the original and revised sentences provided for five years of probation, consecutive to the defendant's confinement; and (3) the defendant failed to show fulfillment of the maximum legal term for the theft by receiving conviction, or that any of the probation requirements had been satisfied. Fair v. State, 281 Ga. App. 518, 636 S.E.2d 712 (2006), cert. denied, No. S07C0125, 2007 Ga. LEXIS 494 (Ga. 2007).
Amendment of sentence as denial of double jeopardy rights.
- Trial court's amendment of a sentence to clarify that the sentence was to run consecutively with a prior life sentence constituted a denial of the defendant's double jeopardy rights since O.C.G.A. § 17-10-10 provides that sentences are presumed to run concurrently with preexisting sentences and the defendant had already begun serving the defendant's latest sentence prior to the court's amendment of the defendant's sentence. Schamber v. Newsome, 696 F. Supp. 1506 (N.D. Ga. 1988).
Legality of present confinement is the question under review in a habeas corpus proceeding. Patterson v. Smith, 227 Ga. 170, 179 S.E.2d 247 (1971).
Sentences which may be attacked in habeas corpus.
- In a petition for writ of habeas corpus, if the petitioner's present confinement was under prior sentences and not under the sentences attacked, the petitioner could not attack sentences to be served consecutively with the prior sentences. Patterson v. Smith, 227 Ga. 170, 179 S.E.2d 247 (1971).
Appellate court is not empowered to modify sentences which are within statutory limits and lawfully imposed. Thomas v. State, 139 Ga. App. 364, 228 S.E.2d 386 (1976).
Consecutive sentences allowed.
- Denial of the defendant's motion attacking the defendant's consecutive sentences for burglary as void was affirmed under O.C.G.A. § 17-10-10 sentences were to be served "concurrently unless otherwise expressly provided therein." Jones v. State, 271 Ga. App. 830, 610 S.E.2d 570 (2005).
Defendant's sentence of 20 years to serve for armed robbery, 20 years probation for aggravated assault, and 5 years probation for possession of a firearm during the commission of a felony, each to run consecutively, did not constitute cruel and unusual punishment in violation of the Eighth Amendment because the trial court's sentence fell within the statutory range of punishment, O.C.G.A. §§ 16-5-21(b),16-8-41(b), and16-11-106(b); under O.C.G.A. § 17-10-10(a), it was within the trial court's discretion to order that the defendant's sentences on armed robbery and aggravated assault run consecutively. McKenzie v. State, 302 Ga. App. 538, 691 S.E.2d 352 (2010).
Trial court did not err in imposing maximum and consecutive sentences on the defendant for the burglary and theft by taking convictions as the defendant's prior convictions for three or more felonies qualified the defendant to be sentenced as a recidivist, requiring the defendant to be sentenced to the maximum time allowed; the sentences were within the statutory ranges; and the trial court had the authority to require that the sentences run consecutively. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019).
Consecutive sentences for weapon possession.
- Trial court's imposition of sentences of imprisonment on the defendant's conviction for possession of a firearm during the commission of a felony, in violation of O.C.G.A. § 16-11-106(b)(1), which were to run consecutively to all other sentences imposed in the defendant's criminal matter, was within the trial court's discretion under O.C.G.A. § 17-10-10, as the trial court was required to run the sentence consecutively to the underlying felony to that offense, and the trial court had discretion as to other sentences imposed. Owens v. State, 271 Ga. App. 365, 609 S.E.2d 670 (2005).
Cited in Fortson v. Elbert County, 117 Ga. 149, 43 S.E. 492 (1903); Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520 (1918); Sullivan v. Clark, 156 Ga. 706, 119 S.E. 913 (1923); Teasley v. Nelson, 164 Ga. 242, 138 S.E. 72 (1927); Ford v. Ellis, 182 Ga. 344, 185 S.E. 337 (1936); McLarry v. State, 72 Ga. App. 864, 35 S.E.2d 378 (1945); Morris v. Aderhold, 201 Ga. 533, 40 S.E.2d 747 (1946); Goble v. Reese, 214 Ga. 697, 107 S.E.2d 175 (1959); Balkcom v. Sellers, 219 Ga. 662, 135 S.E.2d 414 (1964); Cozzalino v. Watkins, 220 Ga. 624, 140 S.E.2d 875 (1965); Grimes v. Smith, 224 Ga. 434, 162 S.E.2d 388 (1968); Rowland v. State, 120 Ga. App. 248, 170 S.E.2d 58 (1969); Heard v. State, 126 Ga. App. 62, 189 S.E.2d 895 (1972); Patterson v. Caldwell, 229 Ga. 321, 191 S.E.2d 43 (1972); Johnson v. State, 126 Ga. App. 757, 191 S.E.2d 614 (1972); Herring v. Ault, 230 Ga. 398, 197 S.E.2d 354 (1973); Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973); Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973); Strong v. State, 232 Ga. 294, 206 S.E.2d 461 (1974); Nicholson v. State, 133 Ga. App. 819, 212 S.E.2d 474 (1975); Brown v. Ricketts, 233 Ga. 809, 213 S.E.2d 672 (1975); Epps v. State, 134 Ga. App. 429, 214 S.E.2d 703 (1975); Huff v. State, 135 Ga. App. 134, 217 S.E.2d 187 (1975); Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975); Taylor v. State, 136 Ga. App. 317, 221 S.E.2d 224 (1975); Turner v. State, 235 Ga. 826, 221 S.E.2d 590 (1976); Dean v. State, 238 Ga. 537, 233 S.E.2d 789 (1977); Burke v. State, 248 Ga. 124, 281 S.E.2d 607 (1981); Jenkins v. Montgomery, 248 Ga. 696, 285 S.E.2d 706 (1982); State v. Wilkerson, 161 Ga. App. 185, 288 S.E.2d 137 (1982); Thomas v. Newsome, 821 F.2d 1550 (11th Cir. 1987); Jefferson v. State, 209 Ga. App. 859, 434 S.E.2d 814 (1993); McKenzie v. State, 250 Ga. App. 277, 549 S.E.2d 774 (2001); James v. State, 265 Ga. App. 689, 595 S.E.2d 364 (2004); In the Interest of J.R., 280 Ga. App. 143, 633 S.E.2d 447 (2006); Smith v. State, 289 Ga. App. 742, 658 S.E.2d 156 (2008); Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
Separate Terms or Different Courts
Intent of subsection (b).
- O.C.G.A. § 17-10-10(b) in no way indicates any intention to do more than give a method of construing sentences when one feature of the sentence has been omitted (that is, whether the intent of the sentence is to be consecutive or concurrent), and was inapplicable to a situation arising from escape or other fugitive status. Downs v. State, 163 Ga. App. 485, 295 S.E.2d 152 (1982).
Groups of offenses committed in a single crime spree are within the ambit of this section if convictions for such offenses have been obtained in separate courts or terms of court. Schamber v. State, 152 Ga. App. 196, 262 S.E.2d 533 (1979).
Subsection (b) of this section properly was to be construed as being applicable to groups of offenses committed in a single crime spree if convictions for such offenses have been obtained in separate courts or terms of court. Amerson v. Zant, 243 Ga. 509, 255 S.E.2d 34 (1979).
If convictions obtained on more than one indictment or accusation at separate terms of court or different courts, and sentenced to imprisonment, the judge does not have a duty to make such sentences run concurrently. Cozzolino v. Hubert, 222 Ga. 43, 148 S.E.2d 435 (1966).
If a person is convicted on more than one indictment in different courts and sentenced to imprisonment, it is within the discretion of the trial court to impose consecutive sentences. Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976).
No intent to give credit for sentences imposed by other sovereignties.
- There is only reference to "different courts" and there is no expression of the General Assembly that sentences imposed by courts of different sovereignties are to be credited as service of sentences for offenses against this state. Grimes v. Greer, 223 Ga. 628, 157 S.E.2d 260 (1967).
Section inapplicable to such sentences.
- Provisions of this section did not apply to sentences imposed by courts of different sovereignties, such as two states, or a state and the United States. Huddleston v. Ricketts, 233 Ga. 112, 210 S.E.2d 319 (1974).
Service of sentence for a federal offense cannot satisfy a sentence for state offense by operation of this section. Grimes v. Greer, 223 Ga. 628, 157 S.E.2d 260 (1967).
State sentence consecutive to federal sentence absent expression to contrary.
- State's oral sentence, in the absence of an expression that the sentence was to be served concurrently with the federal sentence, runs consecutively to the federal sentence under this section. Taylor v. Green, 229 Ga. 164, 190 S.E.2d 66 (1972).
Sentences imposed by different courts are not automatically assumed concurrent if the orders are silent, and the defendant is not released at the termination of the longer sentence. Hightower v. Hollis, 121 Ga. 159, 48 S.E. 969 (1904).
Incarceration by political subdivision after escape from state.
- Prisoner who escapes from state incarceration and is then arrested and incarcerated by a political subdivision of the state is still incarcerated under the power of the same sovereign, and there is no valid reason to toll the running of that prisoner's existing sentence until the prisoner is actually in the physical custody of a Department of Corrections facility. Spann v. Whitworth, 262 Ga. 21, 413 S.E.2d 713 (1992).
OPINIONS OF THE ATTORNEY GENERAL
Interpretation of declaration that sentence is to be "computed from this date."
- A new sentence declaring that it is to be "computed from this date," received by a prisoner having one or more outstanding sentences, is consecutive. Statements such as "to be computed from this date," standing alone, are not sufficient to overcome the presumptive rule of construction created by this section. 1958-59 Op. Att'y Gen. p. 260.
Effect of imposing additional consecutive sentence when part of current sentence remains.- Since ambiguity in a criminal sentence is to be construed in favor of a defendant, if a defendant is sentenced to six one-year sentences to be served consecutively, and while serving the third of these one-year sentences escapes and is, upon apprehension, given a three-year sentence to be served consecutively to the "sentence now being served," the third one-year sentence is the one "then" being served and is the proper sentence to use for computational purposes; therefore, the three-year escape sentence will be served concurrently with the last three one-year sentences. 1973 Op. Att'y Gen. No. 73-42.
Applicability.- This section, which provided that unless otherwise stated, sentences from different courts or different terms of court shall be served concurrently, applies only to sentences from courts of this state. 1973 Op. Att'y Gen. No. 73-148.
Affirmed consecutive sentences not amendable to run concurrently.- Sentences imposed to be served consecutively may not, after affirmance on appeal beyond the expiration of the term, be amended so as to run concurrently. 1945-47 Op. Att'y Gen. p. 115.
Payment of fine as probating sentence.- If a prisoner is sentenced to two consecutive sentences or fines, then the payment of the fine in one sentence will probate that sentence, after which the second sentence would be in force and the prisoner detained unless the fine was paid. 1962 Op. Att'y Gen. p. 119.
Transfer of inmate for treatment of mental disease.- State Board of Corrections (now Board of Offender Rehabilitation) can transfer an inmate to a facility of the Department of Human Resources for treatment as a mentally diseased inmate. If the inmate is declared sane prior to completion of the inmate's existing sentence, the inmate can be returned to stand trial for outstanding charges. 1970 Op. Att'y Gen. No. 70-72.
Commitment to mental institution does not breach service of sentence.- This section did not enable a subsequent order of committal to a state mental institution to breach the service of an existing sentence. To allow otherwise would deprive the inmate of the opportunity to complete service of the inmate's existing sentence until the inmate was again returned to the custody of the State Board of Corrections (now Board of Offender Rehabilitation). 1970 Op. Att'y Gen. No. 70-72.
During period when both sentence and commitment are operative, terms of subsequent criminal sentence govern. 1975 Op. Att'y Gen. No. 75-20.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 706 et seq. 21A Am. Jur. 2d, Criminal Law, § 806 et seq.
C.J.S.- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2397 et seq.
ALR.
- When sentences imposed by same court run concurrently or consecutively; and definiteness of direction with respect thereto, 70 A.L.R. 1511.
Are sentences on different counts to be regarded as for a single term or for separate terms as regards pardon, parole, probation, suspension, or commutation, 107 A.L.R. 634.
Sentences by different courts as concurrent, 57 A.L.R.2d 1410.
Effect of invalidation of sentence upon separate sentence which runs consecutively, 68 A.L.R.2d 712.
Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.
Propriety of general sentence covering several counts in information or indictment not exceeding in aggregate the sentences which might have been imposed cumulatively under the several counts, 91 A.L.R.2d 511.
Right to credit on state sentence for time served under sentence of court of separate jurisdiction where state court fails to specify in that regard, 90 A.L.R.3d 408.
Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.
Validity, construction, and application of concurrent-sentence doctrine - state cases, 56 A.L.R.5th 385.
Construction and application of U.S.S.G. § 5g1.3(b), requiring federal sentence to run concurrently to undischarged state sentence when state sentence has been fully taken into account in determining offense level for federal offense - particular events preceding federal sentence and sentencing credit, 32 A.L.R. Fed. 2d 191.