PocketLaw | Georgia Code | Probation and Supervision; Determination of

Probation and Supervision; Determination of Fees, Fines, and Restitution; Converting Moneys Owed to Community Service or Educational Advancement; Continuing Jurisdiction; Revocation; Transfer

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Any court which has original jurisdiction of ordinance violations or misdemeanors and in which the defendant in such a case has been found guilty upon verdict or has pled guilty or nolo contendere may, at a time to be determined by the court, hear and determine the question of the probation of such defendant.
If it appears to the court upon a hearing of the matter that the defendant is not likely to engage in an unlawful course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court in its discretion may place the defendant on probation under the supervision and control of a probation officer or private probation officer for all or a portion of the sentence or may impose a sentence upon the defendant but stay and suspend the execution of such sentence or any portion thereof. The period of probation or suspension shall not exceed the maximum sentence of confinement which could be imposed on the defendant; provided, however, that nothing in this chapter shall be construed to limit the ability of a court to toll a sentence as provided in this article.
The court may, in its discretion, require the payment of a fine, fees, or restitution as a condition of probation. The provisions of Chapter 14 of Title 17 shall control in determining the amount of restitution. When probation supervision is required, the court may require the payment of a probation supervision fee as a condition of probation. In determining the financial obligations, other than restitution, to impose on the defendant, the court may consider:
1. The defendant's financial resources and other assets, including whether any such asset is jointly controlled;
2. The defendant's earnings and other income;
3. The defendant's financial obligations, including obligations to dependents;
4. The period of time during which the probation order will be in effect;
5. The goal of the punishment being imposed; and
6. Any other factor the court deems appropriate.
The court may convert fines, statutory surcharges, and probation supervision fees to community service or educational advancement on the same basis as it allows a defendant to pay a fine through community service or educational advancement as set forth in subsection (d) of Code Section 17-10-1.
1. As used in this subsection, the term:
  1. "Developmental disability" shall have the same meaning as set forth in Code Section 37-1-1.
  2. "Indigent" means an individual who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without undue hardship for such individual or his or her dependents.
  3. "Significant financial hardship" means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months.
  4. "Totally and permanently disabled" shall have the same meaning as set forth in Code Section 49-4-80.
2. The court shall waive, modify, or convert fines, statutory surcharges, probation supervision fees, and any other moneys assessed by the court or a provider of probation services upon a determination by the court prior to or subsequent to sentencing that a defendant has a significant financial hardship or inability to pay or that there are any other extenuating factors which prohibit payment or collection; provided, however, that the imposition of sanctions for failure to pay such sums shall be within the discretion of the court through judicial process or hearings.
3. Unless rebutted by a preponderance of the evidence that a defendant will be able to satisfy his or her financial obligations without undue hardship to the defendant or his or her dependents, a defendant shall be presumed to have a significant financial hardship if he or she:
  1. Has a developmental disability;
  2. Is totally and permanently disabled;
  3. Is indigent; or
  4. Has been released from confinement within the preceding 12 months and was incarcerated for more than 30 days before his or her release.
1. The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of his or her probated sentence. As further set forth in this subsection, the judge may revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, modify or change the probated sentence, including tolling the sentence as provided in this article, at any time during the period of time originally prescribed for the probated sentence to run.
2. 1. When the sole basis for a probation revocation is for failure to pay fines, statutory surcharges, or probation supervision fees, the probationer shall be scheduled to appear on the court's next available court calendar for a hearing on such issue. No prehearing arrest warrant shall be issued under such circumstances. Absent a waiver, the court shall not revoke a probationary sentence for failure to pay fines, statutory surcharges, or probation supervision fees without holding a hearing, inquiring into the reasons for the probationer's failure to pay, and, if a probationary sentence is revoked, making an express written determination that the probationer has not made sufficient bona fide efforts to pay and the probationer's failure to pay was willful or that adequate alternative types of punishment do not exist. Should the probationer fail to appear at such hearing, the court may, in its discretion, revoke the probated sentence.
  2. A person otherwise found eligible to have his or her probation modified or terminated pursuant to paragraph (1) of this subsection shall not be deemed ineligible for modification or termination of probation solely due to his or her failure to pay fines, statutory surcharges, or probation supervision fees.
3. 1. When the sole basis for a probation revocation is for failure to report as directed by his or her probation officer or private probation officer, as the case may be, such officer shall prepare an affidavit for the court, averring, at a minimum, that:
    1. The probationer has failed to report to his or her probation officer or private probation officer, as the case may be, on at least two occasions;
    2. The officer has attempted to contact the probationer at least two times by telephone or e-mail at the probationer's last known telephone number or e-mail address, which information shall be listed in the affidavit;
    3. The officer has checked the local jail rosters and determined that the probationer is not incarcerated;
    4. The officer has sent a letter by first-class mail to the probationer's last known address, which shall be listed in the affidavit, advising the probationer that the officer will seek to have the probationer arrested and have his or her probation revoked if the probationer does not report to such officer in person within ten days of the date on which the letter was mailed; and
    5. The probationer has failed to report to the probation officer or private probation officer, as the case may be, as directed in the letter set forth in division (iv) of this subparagraph and ten days have passed since the date on which the letter was mailed.
  2. In the event the probationer reports to his or her probation officer or private probation officer, as the case may be, within the period prescribed in division (iv) of subparagraph (A) of this paragraph, the probationer may be scheduled to appear on the next available court calendar for a hearing to consider whether the probation sentence should be revoked in whole or in part.
  3. A probation officer or private probation officer, as the case may be, shall submit the affidavit required by subparagraph (A) of this paragraph together with his or her request for an arrest warrant, and the court may, in its discretion, issue a warrant for the arrest of the probationer.
4. At any revocation hearing, upon proof that the probationer has violated probation:
  1. For failure to report to probation or failure to pay fines, statutory surcharges, or probation supervision fees, the court shall consider the use of alternatives to confinement, including community service, modification of the terms of probation, or any other alternative deemed appropriate by the court. The court shall consider whether a failure to pay court imposed financial obligations was willful. In the event an alternative is not warranted, the court shall revoke the balance of probation or a period not to exceed 120 days in confinement, whichever is less; and
  2. For failure to comply with any other general provision of probation or suspension, the court shall consider the use of alternatives to confinement, including community service or any other alternative deemed appropriate by the court. In the event an alternative is not warranted, the court shall revoke the balance of probation or a period not to exceed two years in confinement, whichever is less.
If a defendant is placed on probation pursuant to this Code section by a court other than one for the county or municipality in which he or she resides for committing any ordinance violation or misdemeanor, such defendant may, when specifically ordered by the court, have his or her probation supervision transferred to the county or municipality in which he or she resides.

(Code 1981, §42-8-102, enacted by Ga. L. 2015, p. 422, § 3-2/HB 310; Ga. L. 2016, p. 443, § 7-3/SB 367; Ga. L. 2018, p. 550, § 2-16/SB 407.)

Editor's notes.

- Ga. L. 2015, p. 422, § 3-2/HB 310, effective July 1, 2015, redesignated former Code Section 42-8-102 as present Code Section 42-8-107.

Law reviews.

- For article on the 2015 enactment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016).

JUDICIAL DECISIONS

Passage of time does not extinguish unserved sentence.

- Georgia Supreme Court answered two questions certified to it from a federal district court and concluded, as a matter of common law, that the mere passage of time does not extinguish an unserved sentence and that the common law principle has not been abrogated by the State-wide Probation Act, O.C.G.A. § 42-8-30. Anderson v. Sentinel Offender Servs., LLC, 298 Ga. 854, 784 S.E.2d 791 (2016).

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