(Ga. L. 1956, p. 161, § 13; Ga. L. 1964, p. 489, § 2; Ga. L. 1968, p. 1399, § 1; Ga. L. 1972, p. 582, § 1; Ga. L. 1973, p. 1297, § 1; Ga. L. 1979, p. 376, § 1; Ga. L. 1981, p. 1434, § 1; Ga. L. 1982, p. 1364, § 2; Ga. L. 1984, p. 604, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1985, p. 283, § 1; Ga. L. 2011, p. 794, § 14/HB 87.)
Editor's notes.- Ga. L. 2011, p. 794, § 1/HB 87, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Illegal Immigration Reform and Enforcement Act of 2011.'"
Ga. L. 2011, p. 794, § 21/HB 87, not codified by the General Assembly, provides that: "(a) If any provision or part of any provision of this Act or the application of the same is held invalid or unconstitutional, the invalidity shall not affect the other provisions or applications of this Act or any other part of this Act than can be given effect without the invalid provision or application, and to this end, the provisions of this Act are severable.
"(b) The terms of this Act regarding immigration shall be construed to have the meanings consistent with such terms under federal immigration law.
"(c) The provisions of this Act shall be implemented in a manner consistent with federal laws governing immigration and civil rights."
Ga. L. 2011, p. 794, § 22/HB 87, not codified by the General Assembly, provides, in part, that the amendment of this Code section by that Act shall apply to offenses and violations occurring on or after July 1, 2011.
Law reviews.- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 35 (2011).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 77-313 and Ga. L. 1937, p. 758 are included in the annotations for this Code section.
Function of the prison commission (now Board of Corrections) is to enforce sentences that are lawfully imposed, and the question as to whether a court is acting within the court's jurisdiction in modifying a sentence is in nowise affected by this section. Gobles v. Hayes, 194 Ga. 297, 21 S.E.2d 624 (1942) (decided under former Code 1933, § 77-313).
Board of Corrections controls prison system and the Board's administrative decisions are final absent violation of rights enforceable in the courts; this enumeration of error is waived if the defendant admits that the trial court and the district attorney have kept their part of the agreement. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).
Standing.
- Because a county could sue the state agencies by challenging the constitutionality of O.C.G.A. §§ 42-9-49 and42-5-51(c) (regarding reimbursement of the detention costs of certain state inmates), and because the county did not dispute that the agencies complied with the sections, the trial court should have granted the agencies' motion for summary judgment. Ga. Dep't of Corr. v. Chatham County, 274 Ga. App. 865, 619 S.E.2d 373 (2005).
County was without authority.
- Since the defendant was sentenced as a felon upon the defendant's plea of guilty to the felony of making terroristic threats and misdemeanor battery, the court did not have authority to sentence the defendant to a county jail and the county had no authority to calculate the defendant's jail time. Eubanks v. State, 229 Ga. App. 667, 494 S.E.2d 564 (1998).
Absent evidence of defendant's inducement guilty plea not void.
- Defendant's dissatisfaction as to the defendant's incarceration in an institution other than the one recommended by the court does not render the defendant's guilty plea void, when there is no evidence that it constituted a part of the inducement to enter the plea. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).
Language in sentence designating place of incarceration surplusage.
- When one guilty of a misdemeanor is sentenced to be "confined at labor at the State Penitentiary (Georgia State Prison) at Reidsville, Georgia, or such other place as the proper authority may direct," such portion of the sentence as seeks to designate the place of confinement, when no effort so to confine the prisoner is shown and since the director of the department of corrections (now commissioner of corrections) designates where most sentences are served, is mere surplusage, and, though technically not in the right form, is not such an irregularity as is hurtful to any right of liberty, or such a defect as makes the sentence void. Mathis v. Scott, 199 Ga. 743, 35 S.E.2d 285 (1945) (decided under Ga. L. 1937, p. 758).
Trial court cannot require the Department of Corrections to place a convicted felon in a particular facility; however, language in a sentence purporting to designate a place of confinement is mere surplusage and is not a defect that will render the sentence void. Stewart v. State, 285 Ga. App. 760, 647 S.E.2d 411 (2007).
Superior court empowered to transfer habeas corpus petitioner.
- Superior court in this state has the power to order a habeas corpus petitioner under sentence of state court transferred from one penal institution to another, when this is necessary to grant the petitioner's constitutional right to meaningful access to the courts. To the extent that there exists a conflict between the statutory authority vested in the department to transfer prisoners from one correctional institute to another, and the authority vested in the superior court to enforce the Constitution, the former must yield to the latter. James v. Hight, 251 Ga. 563, 307 S.E.2d 660 (1983).
Trial court lacked jurisdiction over defendant once imprisonment imposed.
- Once a felony conviction was entered, and a defendant was sentenced to incarceration, the trial court lacked the authority to designate where that defendant must serve the incarceration, since this decision lies solely with the Department of Corrections under O.C.G.A. § 42-5-51(b). Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147 (2005).
Cited in Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); In re Prisoners Awaiting Transf., 236 Ga. 516, 224 S.E.2d 905 (1976); McKenzey v. State, 140 Ga. App. 402, 231 S.E.2d 149 (1976); Wise v. Balkcom, 245 Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982); Hawk v. Georgia Dep't of Cors., 44 F.3d 965 (11th Cir. 1995); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Consideration
Assignments to county correctional institutions.
- Only the director of corrections (now commissioner of corrections), with the approval of the Board of Corrections, may make assignments of state prisoners to county correctional institutions. 1975 Op. Att'y Gen. No. U75-93.
Board prescribes conditions of work required of prisoners.
- In view of the broad language found in subsection (e) of Ga. L. 1957, p. 477, § 4 (see now O.C.G.A. § 42-5-60) that prison labor could be required in public buildings in any such manner as deemed advisable by the Board of Corrections, it is obvious that the legislature intended the board to prescribe the conditions of work required of the prisoners; and even though some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is nonetheless to the prison or public work camp (now county correctional institution) as determined by the commissioner; in turn the prison or camp has sole administrative responsibility and control of the prisoner even though the prisoner may be temporarily attached to the county jail to perform the required repair or maintenance services; such a temporary attachment is not an assignment which contravenes the language of Ga. L. 1956, p. 161, § 13 (see now O.C.G.A. § 42-5-51). 1963-65 Op. Att'y Gen. p. 72.
Employment of inmates not prohibited.- There is no provision in the law to prohibit employment for most inmates as long as the requirements of this section are met. 1980 Op. Att'y Gen. No. 80-44.
Part-time employment of "maintenance" inmates.- If a program is implemented allowing "maintenance" inmates to have part-time jobs, it must fit all of the requirements of this section. 1980 Op. Att'y Gen. No. 80-44.
Though a program for part-time employment by "maintenance" inmates by center personnel could be developed under this section for "maintenance" inmates, such a program would be unwise. 1980 Op. Att'y Gen. No. 80-44.
Presumption of validity of sentence.- When the director of corrections (now commissioner of corrections) receives the certificate of the clerk of the sentencing court, the presumption is that the sentence imposed is a valid sentence. 1977 Op. Att'y Gen. No. 77-71.
Incarceration of federal prisoners in penal system.- Board of Corrections may not enter into a contract with the bureau of prisons for the incarceration of a federal prisoner in the penal system of this state. 1968 Op. Att'y Gen. No. 68-86.
Contracting with private consulting firm for operation of prerelease center.- Board cannot contract with a private consulting firm for operation of a prerelease center; even if such power existed, the director of corrections (now commissioner of corrections) does not have the authority to assign inmates committed to the custody of the board to such a private institution. 1973 Op. Att'y Gen. No. 73-72.
Requests from county probation department for retention of custody of inmate pending arrival of deputy sheriff or probation officer must be disregarded by the wardens. 1969 Op. Att'y Gen. No. 69-151.
Commitment of prisoners to county correctional institution by recorder's court.- Recorder's court would have the authority to commit an individual to a county public works camp (now county correctional institution) which operates under the jurisdiction of the Board of Corrections, provided that the city prisoners committed are not required to work on the county public works camp (now county correctional institution); that they are otherwise separated from county prisoners convicted of state felonies and misdemeanors; and that the receiving county is compensated for the board and upkeep of such city prisoners. 1968 Op. Att'y Gen. No. 68-175.
Vehicles to transport prisoners.- There are no specific requirements as to types of vehicles which may be used to transport prisoners. 1962 Op. Att'y Gen. p. 382.
Reimbursement provisions of O.C.G.A. § 42-5-51(c) do not apply to probationers awaiting transfer to probation detention centers or probation diversion centers. 2002 Op. Att'y Gen. No. 2002-1.
Custody of Prisoners
Felons must serve sentence under department's custody.
- Since all convicted felons sentenced to a term of incarceration now serve their sentences under the jurisdiction of the department, judges of the superior courts lack the authority to sentence an inmate to the custody of any other person or entity. 1993 Op. Att'y Gen. No. 93-17.
Obligation of department to accept prisoner into state penal system arises only upon: (1) "sentencing" of prisoner to actually serve time in state institution; and (2) receipt by department of proper documentation of sentence by clerk of court. 1982 Op. Att'y Gen. No. 82-33.
Upon revocation of parole and the sentencing to serve time in a penal institution, the state has an obligation to accept such persons into the state penal system. 1982 Op. Att'y Gen. No. 82-33.
Pending appeal department cannot take custody of prisoner.- Department of Corrections cannot, without a valid request from the prisoner or the prisoner's attorney, take custody of a prisoner whose motion for new trial has been denied and whose attorney has stated that the attorney will file an appeal within the required 30 days, so long as this time has not expired. 1973 Op. Att'y Gen. No. 73-153 (rendered prior to 1982 amendment).
Finality of conviction.
- During the 30-day period in which an appeal may be filed, a conviction is not final within the meaning of subsection (a) of Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. § 42-5-50); accordingly, unless there has been a valid request for transfer, the Department of Corrections cannot assume lawful custody of the prisoner. 1973 Op. Att'y Gen. No. 73-153 (rendered prior to 1982 amendment).
Restrictions as to incarceration in board-operated institution.- Individual awaiting disposition of a pending criminal charge and who is not serving a sentence in the state correctional system may not be incarcerated in an institution operated by the Board of Corrections. 1970 Op. Att'y Gen. No. 70-111.
Custody of prisoners sentenced to death.
- Supervening events described by former Code 1933, § 27-2514 (see now O.C.G.A. § 17-10-33) did not include filing motion for new trial so that such nonfinality of conviction which, by the terms of subsection (a) of Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. § 42-5-50), precluded acceptance of custody of prisoners "sentenced to serve time" (subsection (b) of this section), did not in the case of prisoners sentenced to be executed, preclude acceptance of custody; the procedure of retention of convicted prisoners in the county jails until the prisoners' convictions have become final, as provided in subsection (a) of Ga. L. 1968, p. 1399, § 1, did not apply to persons sentenced to death because (1) the individuals not "sentenced to serve time" (subsection (b) of this section) and therefore did not have "such a sentence," in the words of subsection (a) of Ga. L. 1968, p. 1399, § 1, and, (2) former Code 1933, § 27-2514 specifically required the sheriff to convey the individuals to the penitentiary unless (a) the Governor directed otherwise, or (b) a stay had been caused by appeal, or (c) a new trial had been granted, or (d) a court ordered otherwise. 1971 Op. Att'y Gen. No. 71-188.
Youthful Offenders
Board designated sole agency for reception and assignment.
- As a general rule, the legislature has designated the Board of Offender Rehabilitation (Corrections) sole agency for reception and assignment of convicted misdemeanants and felons. Notable exceptions to this general provision concern individuals convicted of misdemeanors who, under certain conditions, must be placed in a county institution and, under other conditions, may be placed in such facilities in the discretion of the trial court; and one notable exception provides that the Division for Children and Youth is designated the exclusive state agency for the acceptance and incarceration of all misdemeanants and felons under the age of 17 years; provided, however, that those felons convicted of a capital felony shall only be sentenced into the custody of the Department of Offender Rehabilitation (Corrections). 1972 Op. Att'y Gen. No. 72-3.
Restriction and discretion on releasing and assigning youthful offenders.
- When a combination of youthful offender and standard sentences occur, the Youthful Offender Division may not approve a conditional or unconditional release for the described youthful offender until the youth's concurrent standard sentence has expired; nevertheless, the youth could be assigned to an institution maintained primarily for youthful offenders during the entire period for which the board is charged with custody over the youth, since Ga. L. 1956, p. 161 (see now O.C.G.A. § 42-5-50(b) and subsections (b) and (d) of O.C.G.A. § 42-5-51) empowers the board to assign inmates to any institution within its system, and the statutory law authorizes the director of corrections (now commissioner of corrections) to segregate youthful offenders from other prisoners. 1973 Op. Att'y Gen. No. 73-82.
Defined class of offenders set out.
- Ga. L. 1970, p. 451, § 3 (see now O.C.G.A. § 49-5-7) set apart a defined class of offenders and directed how those offenders were to be punished for the offense; in doing this, the power of any superior court to try an individual under the age of 17 for any given crime was in no way affected; in this respect, Ga. L. 1970, p. 451, § 3 was like Ga. L. 1968, p. 1399, § 1 (see now O.C.G.A. § 42-5-51) which provides that the commissioner of corrections and not the sentencing court designates the place of confinement of any individual within the court's jurisdiction. 1972 Op. Att'y Gen. No. 72-3.
Misdemeanants or Felons
Whether punishment computed on basis of felony or misdemeanor.
- Whether punishment is computed on the basis of a felony or a misdemeanor sentence is controlled by the conviction; a prisoner is either a misdemeanant or a felon, dependent on the crime for which the prisoner was convicted. 1970 Op. Att'y Gen. No. 70-49.
When sentence contains reduction of an offense from felony to misdemeanor, sentence should be computed as a misdemeanor because those authorized to fix the sentence have elected to so treat it. 1970 Op. Att'y Gen. No. 70-49.
Language in sentence designating place of incarceration.- All felons and misdemeanants, other than those misdemeanants committed directly to a county public works camp (now county correctional institution), must be committed directly and exclusively to the Board of Corrections; only the director of corrections (now commissioner of corrections) is authorized to prescribe the place of confinement; so much of the language of a sentence committing an inmate to a term of penal servitude in the state prison system as purports to commit the inmate to Central State Hospital is surplusage and should not be relied upon by the officials of the hospital or the Board of Corrections as authority for the retention of custody of the inmate at the hospital. 1970 Op. Att'y Gen. No. 70-133.
Receipt of prisoners from mayor's court.- Board has authority to receive misdemeanor prisoners from a mayor's court of a municipality when there is no city or county court in that county. 1954-56 Op. Att'y Gen. p. 529.
RESEARCH REFERENCES
Am. Jur. 2d.
- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 7, 10, 12, 130, 134.
C.J.S.- 72 C.J.S., Prisons and Rights of Prisoners, §§ 17-25, 128, 129, 134.
ALR.
- Validity of statute empowering administrative officials to transfer to penitentiary inmate of reformatory, 95 A.L.R. 1455.
Validity, construction, and application of statutory provision for reimbursement of state (or subdivision thereof) for expense of keeping prisoner, 139 A.L.R. 1028.
What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.
Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.
Right of incarcerated mother to retain custody of infant in penal institution, 14 A.L.R.4th 748.
Validity, construction, and application of state statute requiring inmate to reimburse government for expense of incarceration, 13 A.L.R.5th 872.