2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-1. (For Effective Date, See note.) Fixing of Sentence; Suspension or Probation of Sentence; Change in Sentence; Eligibility for Parole; Prohibited Modifications; Exceptions

1. 1. 1. Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including service of a probated sentence in the sentencing options system, as provided by Article 6 of Chapter 3 of Title 42, and including the authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has begun, subject to the conditions set out in this subsection; provided, however, that such action shall be subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2.
      2. When a defendant with no prior felony conviction is convicted of felony offenses or is charged with felony offenses and is sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2 or Article 3 of Chapter 8 of Title 42, and the court imposes a sentence of probation or not more than 12 months of imprisonment followed by a term of probation, the court shall include a behavioral incentive date in its sentencing order that does not exceed three years from the date such sentence is imposed. Within 60 days of the expiration of such incentive date, if the defendant has not been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37, has been compliant with the general and special conditions of probation imposed, and has paid all restitution owed, the Department of Community Supervision shall notify the prosecuting attorney and the court of such facts. The Department of Community Supervision shall provide the court with an order to terminate such defendant's probation which the court shall execute unless the court or the prosecuting attorney requests a hearing on such matter within 30 days of the receipt of such order. The court shall take whatever action it determines would be for the best interest of justice and the welfare of society.
   2. 1. Active probation supervision shall terminate in all cases no later than two years from the commencement of active probation supervision unless specially extended or reinstated by the sentencing court upon notice and hearing and for good cause shown; provided, however, that in those cases involving:
         1. The collection of restitution, the period of active probation supervision shall remain in effect for so long as any such obligation is outstanding, or until termination of the sentence, whichever first occurs;
         2. A conviction under Chapter 15 of Title 16, the "Georgia Street Gang Terrorism and Prevention Act," the period of active probation supervision shall remain in effect until the termination of the sentence, but shall not exceed five years unless as otherwise provided in this paragraph; or
         3. A conviction that requires the defendant to register on the state sexual offender registry pursuant to Code Section 42-1-12, the period of active probation supervision shall remain in effect until the court orders unsupervised probation, or until termination of the sentence, whichever first occurs.
      2. Probation supervision shall not be required for defendants sentenced to probation while the defendant is in the legal custody of the Department of Corrections or the State Board of Pardons and Paroles.
   3. 1. Any part of a sentence of probation revoked for a violation other than a subsequent commission of any felony, a violation of a special condition, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim which in the opinion of the trial court constitutes a danger to the community or a serious infraction occurring while the defendant is assigned to an alternative probation confinement facility shall be served in a probation detention center, probation boot camp, weekend lock up, or confinement in a local jail or detention facility, or other community correctional alternatives available to the court or provided by the Department of Corrections.
      2. A parolee or probationer charged with a misdemeanor involving physical injury or an attempt to commit physical injury or terroristic threats or with a new felony shall not be entitled to bond pending a hearing on the revocation of his or her parole or probation, except by order of a judge of the superior, state, or magistrate court wherein the alleged new offense occurred after a hearing and upon determination of the superior, state, or magistrate court that the parolee or probationer does not constitute a threat to the community; provided, however, that this subparagraph does not authorize state or magistrate court judges to grant bail for a person charged with any offense listed in subsection (a) of Code Section 17-6-1.
   4. In cases of imprisonment followed by probation, the sentence shall specifically provide that the period of probation shall not begin until the defendant has completed service of the confinement portion of the sentence. No revocation of any part of a probated sentence shall be effective while a defendant is in the legal custody of the State Board of Pardons and Paroles.
   5. 1. When a defendant has been sentenced to probation, the court shall retain jurisdiction throughout the period of the probated sentence as provided for in subsection (g) of Code Section 42-8-34. Without limiting the generality of the foregoing, the court may shorten the period of active probation supervision or unsupervised probation on motion of the defendant or on its own motion, or upon the request of a community supervision officer, if the court determines that probation is no longer necessary or appropriate for the ends of justice, the protection of society, and the rehabilitation of the defendant. Prior to entering any order for shortening a period of probation, the court shall afford notice to the victim or victims of all sex related offenses or violent offenses resulting in serious bodily injury or death and, upon request of the victim or victims so notified, shall afford notice and an opportunity for hearing to the defendant and the prosecuting attorney.
      2. The Department of Community Supervision shall establish a form document which shall include the elements set forth in this Code section concerning notification of victims and shall make copies of such form available to prosecuting attorneys in this state. When requested by the victim, the form document shall be provided to the victim by the prosecuting attorney. The form shall include the address of the community supervision office having jurisdiction over the case and contain a statement that the victim must maintain a copy of his or her address with the community supervision office and must notify the office of any change of address in order to maintain eligibility for notification by the Department of Community Supervision as required in this Code section.
   6. 1. Except as otherwise authorized by law, no court shall modify, suspend, probate, or alter a previously imposed sentence so as to reduce or eliminate a period of incarceration or probation and impose a financial payment which:
         1. Exceeds the statutorily specified maximum fine, plus all penalties, fees, surcharges, and restitution permitted or authorized by law; or
         2. Is to be made to an entity which is not authorized by law to receive fines, penalties, fees, surcharges, or restitution.
      2. The prohibitions contained in this paragraph shall apply regardless of whether a defendant consents to the modification, suspension, probation, or alteration of such defendant's sentence and the imposition of such payment.
      3. Nothing in this paragraph shall prohibit or prevent a court from requiring, as a condition of suspension, modification, or probation of a sentence in a criminal case involving child abandonment, that the defendant pay all or a portion of child support which is owed to the custodial parent of a child which is the subject of such case.
   7. As used in this subsection, the term:
      1. "Active probation supervision" means the period of a probated sentence in which a probationer actively reports to his or her community supervision officer or is otherwise under the direct supervision of a community supervision officer.
      2. "Unsupervised probation" means the period of a probated sentence that follows active probation supervision in which:
         1. All of the conditions and limitations imposed by the court remain intact;
         2. A probationer may have reduced reporting requirements; and
         3. A community supervision officer shall not actively supervise such probationer.
2. The judge, in fixing the sentence as prescribed in subsection (a) of this Code section, may make a determination as to whether the person being sentenced should be considered for parole prior to the completion of any requirement otherwise imposed by law relating to the completion of service of any specified time period before parole eligibility. In the event that the judge so determines, he or she may specify in the sentence that the person is sentenced under this subsection and may provide that the State Board of Pardons and Paroles, acting in its sole discretion, may consider and may parole any person so sentenced at any time prior to the completion of any minimum requirement otherwise imposed by law, rule, or regulation for the service of sentences or portions thereof. The determination allowed in this subsection shall be applicable to first offenders only.
3. In any case in which a minor defendant who has not achieved a high school diploma or the equivalent is placed under a probated or suspended sentence, the court may require as a condition of probation or suspension of sentence that the defendant pursue a course of study designed to lead to achieving a high school diploma or the equivalent; and, in any case in which such a condition of probation may be imposed, the court shall give express consideration to whether such a condition should be imposed.
4. 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. In determining the financial obligations, other than restitution, to impose on the defendant, the court shall consider:
      1. The defendant's financial resources and other assets, including whether any such assets are 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.
   3. In any case involving a violation of local ordinance, misdemeanor, or felony in which the defendant has been punished in whole or in part by a fine, the court shall be authorized to allow the defendant to satisfy such fine or any fee imposed in connection with probation supervision through community service as set forth in Article 3 of Chapter 3 of Title 42. One hour of community service shall equal the dollar amount of one hour of paid labor at the minimum wage under the federal Fair Labor Standards Act of 1938, in effect on January 1, 2018, unless otherwise specified by the court. A defendant shall be required to serve the number of hours in community service which equals the number derived by dividing the amount owed by the defendant, including moneys assessed by a provider of probation services, by the federal minimum hourly wage or by the amount specified by the court. If the court orders educational advancement, the court shall determine the numbers of hours required to be completed. Prior to or subsequent to sentencing, a defendant, or subsequent to sentencing, a community supervision officer, may request that the court make all or any portion of the amount owed by the defendant be satisfied under this subsection.
   4. At the time of sentencing, the court may waive the imposition of a fine, exclusive of the payment of statutory surcharges, upon a determination that a defendant has a significant financial hardship or inability to pay or other extenuating factors exist that prohibit payment or collection of such fine. When determining significant financial hardship, the court may consider whether the defendant is indigent and whether the defendant or his or her dependents has a developmental disability or is totally and permanently disabled. If the court waives the imposition of a fine under this paragraph, it shall instead impose a theoretical fine and the defendant shall be required to pay the statutory surcharges associated therewith.
5. In any case involving a felony in which the defendant previously appeared before a juvenile court, the records of the dispositions of the defendant as well as any evidence used in any juvenile court hearing shall be available to the district attorney, the defendant, and the superior court judge in determining sentencing as provided in Code Section 15-11-703.
6. (For effective date, see note.) Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. The time periods prescribed in this subsection require the defendant to file a motion within such time periods; however, the court shall not be constrained to issue its order or hear the matter within such time periods. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.
7. 1. 1. In sentencing a defendant convicted of a felony to probated confinement, the sentencing judge may make the defendant's participation in a work release program operated by a county a condition of probation, provided that such program is available and the administrator of such program accepts the inmate.
      2. Any defendant accepted into a county work release program shall thereby be transferred into the legal custody of the administrator of said program; likewise, any defendant not accepted shall remain in the legal custody of the Department of Corrections.
   2. Work release status granted by the court may be revoked for cause by the sentencing court in its discretion or may be revoked by the state or local authority operating the work release program for any reason for which work release status would otherwise be revoked.
   3. The provisions of this subsection shall not limit the authority of the commissioner to authorize work release status pursuant to Code Section 42-5-59 or apply to or affect the authority to authorize work release of county prisoners, which shall be as provided for in Code Sections 42-1-4 and 42-1-9 or as otherwise provided by law.
   4. This subsection shall not apply with respect to any violent felony or any offense for which the work release status is specifically prohibited by law, including but not limited to serious violent felonies as specified in Code Section 17-10-6.1.

(Ga. L. 1919, p. 387, § 1; Code 1933, § 27-2502; Ga. L. 1950, p. 352, § 3; Ga. L. 1964, p. 483, §§ 2, 4; Ga. L. 1974, p. 352, §§ 3, 4; Ga. L. 1981, p. 1024, § 1; Ga. L. 1982, p. 3, § 17; Ga. L. 1984, p. 894, § 2; Ga. L. 1986, p. 842, § 1; Ga. L. 1988, p. 463, § 1; Ga. L. 1991, p. 310, § 1; Ga. L. 1992, p. 3221, § 1; Ga. L. 1993, p. 1654, § 1; Ga. L. 1994, p. 1959, § 9; Ga. L. 1995, p. 1043, § 1; Ga. L. 1996, p. 1257, § 1; Ga. L. 1998, p. 842, § 6; Ga. L. 2000, p. 20, § 7; Ga. L. 2001, p. 94, § 5; Ga. L. 2001, p. 1030, § 1; Ga. L. 2004, p. 775, § 1; Ga. L. 2005, p. 60, § 17/HB 95; Ga. L. 2006, p. 379, § 19/HB 1059; Ga. L. 2006, p. 710, § 7/SB 203; Ga. L. 2010, p. 230, § 10/HB 1015; Ga. L. 2012, p. 899, § 4-3/HB 1176; Ga. L. 2013, p. 141, § 17/HB 79; Ga. L. 2013, p. 222, § 7/HB 349; Ga. L. 2013, p. 294, § 4-17/HB 242; Ga. L. 2015, p. 5, § 17/HB 90; Ga. L. 2015, p. 422, § 5-30/HB 310; Ga. L. 2016, p. 443, § 13-4/SB 367; Ga. L. 2017, p. 585, § 2-1/SB 174; Ga. L. 2018, p. 550, § 2-6/SB 407; Ga. L. 2018, p. 1112, § 17/SB 365; Ga. L. 2020, p. 361, § 1/HB 984.)

- Diploma requirement as condition of probation in juvenile proceeding, § 15-11-601.

Discretion of judge to allow conditional discharge for first offenders of laws relating to possession of controlled substances or dangerous drugs, § 16-13-2.

Sentence to imprisonment for life without parole authorized, § 17-10-16.

Notification required to be given to commissioner of offender rehabilitation following imposition of sentence, and as to assignment of convicted person to correctional institution, § 42-5-50.

Alternative provisions for sentencing of offenders between ages 17 and 25, § 42-7-3 et seq.

Procedure for hearing and determining question of probation generally, § 42-8-34.

Probation of first offenders, § 42-8-60.

- Ga. L. 1991, p. 310, § 2, not codified by the General Assembly, provides that the 1991 amendments to this Code section, effective July 1, 1991, are applicable to sentences of probation entered prior to, on, or after July 1, 1991.

Ga. L. 1993, p. 1654, § 7, not codified by the General Assembly, and effective May 1, 1993, provides: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, a defendant whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act provided that: (1) jeopardy for the offense charged has not attached and the state has filed with the trial court notice of its intention to seek the death penalty or (2) the defendant has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking the death penalty after remand."

Ga. L. 1993, p. 1654, § 8, not codified by the General Assembly, and effective May 1, 1993, provides: "Except as provided in Section 6 of this Act [Code Section 17-10-32.1], the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act nor shall this Act be construed as repealing Code Sections 17-10-30, 17-10-31, or 17-10-32 of the Official Code of Georgia Annotated."

Ga. L. 1993, p. 1654, § 9, not codified by the General Assembly, and effective May 1, 1993, provides: "No person shall be sentenced to life without parole unless such person could have received the death penalty under the laws of this state as such laws have been interpreted by the United States Supreme Court and the Supreme Court of Georgia."

Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994.'"

Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:

"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and

"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."

Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act." This Act became effective January 1, 1995.

Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."

Ga. L. 2001, p. 94, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the '2001 Crime Prevention Act.'"

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2015, p. 5, § 54(e)/HB 90, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2015 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subsection (d) of this Code section by Ga. L. 2015, p. 5, § 17/HB 90, was not given effect.

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that this Act shall apply to sentences entered on or after July 1, 2015.

- For article discussing the constitutionality of imposing harsher sentences upon defendants found guilty in new trial after appeal, see 6 Ga. St. B.J. 183 (1969). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11, 61 (2006). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For article on the 2015 amendment 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 Georgia St. U.L. Rev. 139 (2016). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 115 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 183 (1993). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 47 (2001). For note, "'158-County Banishment' in Georgia: Constitutional Implications under the State Constitution and the Federal Right to Travel," see 36 Ga. L. Rev. 1083 (2002). For note, "Blakely v. Washington: Criminal Sentencing and the Sixth Amendment Limitation on Judicial Factfinding," see 56 Mercer L. Rev. 1079 (2005). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017). For comment on State v. Borst, 278 Minn. 388, 154 N.W.2d 888 (1967), as to an indigent misdemeanant's right to counsel, see 19 Mercer L. Rev. 440 (1968).

ANALYSIS

• General Consideration
• Sentencing Prerogatives of Trial Court
• Modification of Sentence
• Revocation of Probation or Suspension

General Consideration

Editor's notes.

- Many of the cases noted below were decided prior to the 1994 amendment of paragraph (a)(1).

- From the caption of the Act and from the declarations and findings enunciated in Section 2 of the Sentence Reform Act of 1994, Ga. L. 1994, p. 1959, it is apparent that the primary purpose of the Act was to limit probation and parole for certain violent felonies and to provide for sentences of life without parole. Moore v. Ray, 269 Ga. 457, 499 S.E.2d 636 (1998).

- Following the 1992 amendment of O.C.G.A. § 17-10-1, the trial court no longer has the power to revoke a probation sentence that has not yet begun. Lombardo v. State, 244 Ga. App. 885, 537 S.E.2d 143 (2000).

If the defendant's probation was revoked before the motion began, the defendant's probation was improperly revoked under former O.C.G.A. § 17-10-1, which was the statute in effect at the time that the defendant committed the crimes that led to the revocation of probation; former § 17-10-1, which was subject to O.C.G.A. § 42-8-34(g), did not grant the authority to revoke probation before probation began. Jones v. State, 260 Ga. App. 401, 579 S.E.2d 827 (2003).

- In a suit brought by misdemeanor defendants challenging the privatization of probation services under O.C.G.A. § 42-8-100(g)(1), the Georgia Supreme Court agreed with the trial court that § 42-8-100(g)(1) was not unconstitutional on the statute's face and did not offend due process or equal protection nor condone imprisonment for debt. Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

- By the statute's express terms, mandatory sentence provisions of O.C.G.A. § 16-13-31 regarding trafficking in certain drugs are removed from the application of the probated and suspended sentence provisions of O.C.G.A. § 17-10-1(a). Moran v. State, 170 Ga. App. 837, 318 S.E.2d 716 (1984).

Pursuant to O.C.G.A. § 16-13-31(g)(1), the trial court lacked the authority to probate or suspend sentences imposed against two defendants in unrelated criminal actions, and neither the 2004 nor the 2006 amendments to the general sentencing provisions under O.C.G.A. § 17-10-1(a)(1) were relevant; moreover, because O.C.G.A. §§ 17-10-6.1 and17-10-6.2 were statutes that defined certain categories of crimes and provided the sentencing guidelines for those categories, it did not appear that the list of these two exceptions normally would have included § 16-13-31 or any other specific criminal statute, and any omission would be significant only with regard to a statute that defined classes or categories of crimes. Gillen v. State, 286 Ga. App. 616, 649 S.E.2d 832 (2007), cert. denied, No. S07C1780, 2007 Ga. LEXIS 809 (Ga. 2007).

- Because the defendant's sex offender registration as part of probation was limited to the maximum sentence allowed by law as punishment for that crime, the trial court did not improperly give the defendant an indeterminate sentence by requiring the defendant to register as a sexual offender following the defendant's conviction for felony public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013).

O.C.G.A. § 17-10-1 does not apply to sentences for conviction of certain crimes in which the legislature has dictated that life imprisonment must be imposed. Mosley v. State, 203 Ga. App. 275, 416 S.E.2d 736, cert. denied, 203 Ga. App. 907, 416 S.E.2d 736 (1992).

Even though O.C.G.A. § 17-10-1 (prior to the 1993 amendment) and O.C.G.A. § 16-8-41 did not mandate a life sentence, a life sentence on an armed robbery conviction was proper under the specific provisions of § 16-8-41. Stovall v. State, 216 Ga. App. 138, 453 S.E.2d 110 (1995).

O.C.G.A. § 17-10-1 does not apply when a life sentence or the death penalty are mandated for a conviction of kidnapping with bodily injury. Melton v. State, 216 Ga. App. 215, 454 S.E.2d 545 (1995).

Order included in a sentence for animal cruelty that seized animals would be retained did not violate O.C.G.A. § 17-10-1(a)(6)(A) because that provision applies only to a trial court's modification, suspension, probation, or alteration of a previously imposed sentence. Sirmans v. State, 244 Ga. App. 252, 534 S.E.2d 862 (2000), cert. denied, 534 U.S. 831, 122 S. Ct. 76, 151 L. Ed. 2d 40 (2001).

Upon the conviction for the sale of cocaine, the trial court properly sentenced the defendant under O.C.G.A. § 17-10-7(c) and not O.C.G.A. § 17-10-1(a)(1), to the minimum sentence of ten years imprisonment under O.C.G.A. § 16-13-30(d), without the possibility of parole, as the defendant had three prior felony convictions. Fortson v. State, 283 Ga. App. 120, 640 S.E.2d 693 (2006).

Defendant's sentence of 30 years without parole for trafficking in cocaine was a sentence allowed under O.C.G.A. § 16-13-30(d), and hence, not illegal or void. Defendant could not have been sentenced under O.C.G.A. § 17-10-7(a), or the defendant's sentence would have been 40 years. Because the sentence was not void, the sentence was not subject to modification under O.C.G.A. § 17-10-1(f). State v. Blue, 304 Ga. App. 471, 696 S.E.2d 692 (2010).

§ 17-10-1 did not govern motion to withdraw guilty plea after sentence. - Trial court erred in dismissing the defendant's motion to withdraw a guilty plea, which was filed by letter before the term of court expired but not served on the state because the state had reasonable notice of the motion to withdraw 18 days before the motion was first set for a hearing, and over two years before the hearing was eventually held. The court looked to O.C.G.A. § 17-9-60 for guidance as to whether the state was required to be served with the motion prior to the expiration of the term of court, and concluded that it was not. McKiernan v. State, 286 Ga. 756, 692 S.E.2d 340 (2010).

O.C.G.A. § 17-10-1 does not grant the trial court unlimited time in which to modify sentences. Latham v. State, 225 Ga. App. 147, 483 S.E.2d 322 (1997).

- Assuming the ambiguity of a sentence of the defendant convicted of child molestation and statutory rape to sentences of 20 years to serve and 20 years with ten years to serve and the balance on probation, and the defendant paying a $5,000 fine at the termination of the probation period, giving the benefit of the doubt to the defendant, the sentences for each count were construed to run concurrently rather than consecutively. Ogles v. State, 218 Ga. App. 92, 460 S.E.2d 866 (1995).

Construction with § 42-8-35.1 - Although O.C.G.A. § 17-10-1 gives the trial court the authority to order confinement in a probation boot camp for a misdemeanor probationer whose sentence of probation is revoked, it does not confer authority under O.C.G.A. § 42-8-35.1 to order that an original misdemeanor probation sentence be served in boot camp. Johnson v. State, 267 Ga. 77, 475 S.E.2d 595 (1996).

Construction with § 42-8-35.4. - Reading O.C.G.A. §§ 17-10-1(a)(3)(A) and42-8-35.4 together, a court may confine a probation violator in a probation detention center, but not if probation is revoked for any of the reasons enumerated in § 17-10-1(a)(3)(A), and only if the defendant was put on probation previously for a forcible misdemeanor or a misdemeanor of a high and aggravated nature; a defendant who pled guilty to the misdemeanors of habitual violator, driving under the influence, possession of marijuana, and operating a vehicle without proof of insurance did not meet the criteria for confinement in a probation detention center upon revocation of probation under O.C.G.A. § 42-8-35.4, and so confinement in such a facility was unauthorized. Wilson v. Windsor, 280 Ga. 576, 630 S.E.2d 367 (2006).

Construction with § 17-10-6.1. - O.C.G.A. § 17-10-1(b) does not conflict with O.C.G.A. § 17-10-6.1 and, thus, the trial court has no discretion to alter or to allow the parole board to alter the mandatory minimum sentence of ten years for any serious violent felony including armed robbery. Taylor v. State, 241 Ga. App. 439, 526 S.E.2d 910 (1999).

§ 16-6-1(b). - O.C.G.A. § 16-6-1(b) was a specific sentencing statute for the offense of rape that prevailed over the general statute, O.C.G.A. § 17-10-1. Burke v. State, 274 Ga. App. 402, 618 S.E.2d 36 (2005).

Since the defendant pled guilty to aggravated child molestation, the trial court did not err in ruling that the court lacked discretion to sentence the defendant under O.C.G.A. § 17-10-1(b). Rolader v. State, 249 Ga. App. 213, 547 S.E.2d 778 (2001).

- Condition of probation placing the defendant on reporting probation for a period exceeding two years did not violate O.C.G.A. § 17-10-1. Darby v. State, 230 Ga. App. 32, 495 S.E.2d 146 (1998).

- Trial court erred in denying a probationer's motion to suppress the evidence seized from the probationer's apartment as, even though the entry into the apartment for the purpose of effecting an arrest of the probationer was permissible, most of the evidence was seized without a warrant after the probationer was not found in the apartment and had to be excluded under the Fourth Amendment as the search conducted was only permissible insofar as the search involved the observation of items of obvious evidentiary value in plain view during the time and activities required to attempt the probationer's arrest. The probationer was never placed on notice that the probationer was going to be subjected to warrantless searches, and the state failed to demonstrate any exigent circumstances justifying the warrantless search. Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007).

- Denial of the defendant's motion to vacate sentence was affirmed since the motion was untimely filed four years after the trial court received the remittitur of an earlier affirmance of the defendant's conviction; moreover, the defendant's sentence resulted from the defendant's conviction and did not involve the defendant's status as a probationer in a different county. Esquivel v. State, 266 Ga. App. 715, 598 S.E.2d 24 (2004).

As the defendant filed a petition to correct void sentence more than two years after the remittitur of the defendant's direct appeal, defendant could only challenge the sentence if it was void, pursuant to O.C.G.A. § 17-10-1(f). McConnell v. State, 281 Ga. App. 303, 635 S.E.2d 882 (2006).

Appeal of a trial court's denial of a defendant's motion to correct sentence was dismissed because the motion was filed beyond the time specified in O.C.G.A. § 17-10-1(f), the sentence was within the applicable penalty range, and the sentence was not void despite the defendant's claim that the prosecution introduced erroneous and inflammatory information at the sentencing hearing; further, the sentence was not "enhanced" beyond the maximum penalty and Apprendi did not apply. Burg v. State, 297 Ga. App. 118, 676 S.E.2d 465 (2009), cert. denied, No. S09C1217, 2009 Ga. LEXIS 419 (Ga. 2009).

Sentencing court lacked jurisdiction over the defendant's motion to vacate the defendant's sentence because the motion was filed three years after sentencing and the defendant did not assert a claim that the sentence was void, meaning that it was a sentence that the law did not allow. von Thomas v. State, 293 Ga. 569, 748 S.E.2d 446 (2013).

- Because the defendant was sentenced during the July 2002 term of court, but the defendant's motions to withdraw the guilty plea were not filed until May 2, 2003 and June 4, 2003, during the May 2003 term of court, at the time defendant filed the motion to withdraw the plea, the only means available to challenge defendant's plea was through a petition for writ of habeas corpus. Kuntz v. State, 276 Ga. App. 483, 623 S.E.2d 684 (2005).

If defendant pled guilty to charges of murder and armed robbery, but the record did not support a finding that the defendant was advised of all the defendant's constitutional rights by either the defendant's attorney or the sentencing court and that the defendant made a knowing and intelligent waiver of those rights, the habeas court erred by denying the defendant's petition for habeas corpus. Johnson v. Smith, 280 Ga. 235, 626 S.E.2d 470 (2006).

- To determine if an ex post facto violation resulted from use of the applied law in a probation revocation matter, the law in effect at the time of the probation revocation must be measured against the law in effect at the time of the initial offense, not the law in effect at the time of the act that resulted in probation revocation. Walker v. Brown, 281 Ga. 468, 639 S.E.2d 470 (2007).

Cited in Brown v. Ricketts, 233 Ga. 809, 213 S.E.2d 672 (1975); Seagraves v. State, 135 Ga. App. 42, 217 S.E.2d 377 (1975); Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975); Ingram v. State, 137 Ga. App. 412, 224 S.E.2d 527 (1976); Mauldin v. State, 139 Ga. App. 13, 227 S.E.2d 862 (1976); Robinson v. State, 139 Ga. App. 480, 228 S.E.2d 615 (1976); Hardin v. State, 141 Ga. App. 115, 232 S.E.2d 631 (1977); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979); Amerson v. Zant, 243 Ga. 509, 255 S.E.2d 34 (1979); Burns v. State, 153 Ga. App. 529, 265 S.E.2d 859 (1980); Cofer v. Hawthorne, 154 Ga. App. 875, 270 S.E.2d 84 (1980); Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981); Howell v. State, 160 Ga. App. 562, 287 S.E.2d 573 (1981); Johns v. State, 160 Ga. App. 535, 287 S.E.2d 617 (1981); State v. Shuman, 161 Ga. App. 304, 287 S.E.2d 757 (1982); Strickland v. State, 165 Ga. App. 197, 300 S.E.2d 537 (1983); State v. Baldwin, 167 Ga. App. 737, 307 S.E.2d 679 (1983); Lowry v. State, 171 Ga. App. 118, 318 S.E.2d 744 (1984); Griffin v. State, 172 Ga. App. 184, 322 S.E.2d 295 (1984); Wallace v. State, 175 Ga. App. 685, 333 S.E.2d 874 (1985); Etchison v. State, 175 Ga. App. 723, 334 S.E.2d 324 (1985); Moreland v. State, 183 Ga. App. 113, 358 S.E.2d 276 (1987); Crumbley v. State, 261 Ga. 610, 409 S.E.2d 517 (1991); Browner v. State, 206 Ga. App. 676, 426 S.E.2d 673 (1992); Brady v. State, 212 Ga. App. 853, 443 S.E.2d 522 (1994); Tuttle v. State, 215 Ga. App. 396, 450 S.E.2d 863 (1994); Murray v. State, 216 Ga. App. 593, 455 S.E.2d 79 (1995); Stone v. State, 218 Ga. App. 350, 461 S.E.2d 548 (1995); Day v. State, 242 Ga. App. 899, 531 S.E.2d 781 (2000); United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); State v. Huckeba, 258 Ga. App. 627, 574 S.E.2d 856 (2002); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Walker v. State, 289 Ga. App. 879, 658 S.E.2d 375 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015); Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010); Shelton v. State, 307 Ga. App. 599, 705 S.E.2d 699 (2011), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019); Stephens v. State, 289 Ga. 758, 716 S.E.2d 154 (2011); McClendon v. State, 318 Ga. App. 676, 734 S.E.2d 505 (2012); Parham v. State, 320 Ga. App. 676, 739 S.E.2d 135 (2013); Myrick v. State, 325 Ga. App. 607, 754 S.E.2d 395 (2014); Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017), cert. denied, No. S18C0239, 2018 Ga. LEXIS 236 (Ga. 2018); State v. Hudson, 303 Ga. 348, 812 S.E.2d 270 (2018).

Sentencing Prerogatives of Trial Court

Powers of trial judge generally.

- O.C.G.A. §§ 17-10-1 and17-10-8, when read together, provide that the judge fixing sentence shall prescribe a determinate sentence for a specific number of years within the limits set by law, may probate a noncapital felony sentence upon such terms as the judge deems proper, and may impose a fine upon the convicted party not to exceed $10,000 (or the fine fixed by law, whichever is greater). State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

There was no violation of the defendant's rights under O.C.G.A. § 17-10-1 since the sentence as finally entered did not vary from that which was orally announced by the trial court and there was no increase. Lester v. State, 190 Ga. App. 59, 378 S.E.2d 364 (1989).

O.C.G.A. § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law. Baldwin v. State, 217 Ga. App. 866, 460 S.E.2d 80 (1995).

Supreme Court of Georgia held that the trial court was authorized to impose the sentences the trial court did even without taking into consideration the state's request for recidivist punishment and the evidence presented in support of that request and the court was permitted by other statutes to impose the sentences that it did, even if the trial court labored under the mistaken impression that the appellant was not eligible for parole, which amounted to a mistake of law, but not a void sentence. Marshall v. State, Ga. , S.E.2d (Sept. 8, 2020).

If the sentences imposed are within the statutory limits, the sentences are not unconstitutional. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980).

Trial court did not have the power to sentence the defendant who was convicted of armed robbery after the defendant was already convicted of committing other felonies to probation, or to suspend any part of the defendant's sentence, and because life in prison was the maximum penalty for armed robbery, the trial court properly sentenced the defendant to life in prison without parole. Thompson v. State, 265 Ga. App. 696, 595 S.E.2d 377 (2004).

- Court had authority to impose as a condition of probation the requirement that the defendant wear a fluorescent pink plastic bracelet imprinted with the words "D.U.I. CONVICT." Such requirement did not impose cruel and unusual punishment or deprive the defendant of equal protection and it was not an impermissibly indeterminate condition. Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793 (1993).

- In a burglary prosecution, since the judge sentenced the defendant "during the full term of not less than one year and not more than two years," the verdict was in substantial compliance with this section, and the sentence based thereon was valid. Edwards v. State, 64 Ga. App. 266, 13 S.E.2d 39 (1941).

When the jury finds the defendant guilty of voluntary manslaughter and court then sentences defendant to serve not less than seven years, nor more than ten years in the penitentiary, the statutory requirement that the judge prescribe a determinate sentence for a specific number of years is satisfied. Randolph v. State, 75 Ga. App. 253, 43 S.E.2d 101 (1947).

- Trial court did not err by correcting the court's written sentence to conform with the court's oral pronouncement because the trial court was authorized to correct the clerical error appearing in the court's written sentence as compared to the court's original oral pronouncement; the trial court, after reviewing the original transcript, determined that the court's original pronouncement and intent was for the aggravated battery and burglary counts to be served consecutive to each other as well as to the other aggravated battery count. Griggs v. State, 314 Ga. App. 158, 723 S.E.2d 480 (2012).

Imposition of life sentence for armed robbery was within the range of punishment prescribed therefor and did not violate the mandate that sentences be for a determinate period. Williams v. State, 214 Ga. App. 421, 447 S.E.2d 714 (1994); Curry v. State, 217 Ga. App. 623, 458 S.E.2d 385 (1995); Echols v. Thomas, 265 Ga. 474, 458 S.E.2d 100 (1995).

Imposition of life sentence for aggravated assault and armed robbery was allowable and did not violate the requirement that the defendant be given a determinative sentence for a specific number of years. Curry v. State, 217 Ga. App. 623, 458 S.E.2d 385 (1995).

Under the provisions of O.C.G.A. § 17-10-1 as the statute existed prior to the 1993 amendment, it was within the discretion of the trial court to impose concurrent life sentences for rape and aggravated sodomy convictions; a sentence for a specific number of years was not required. Cofield v. State, 216 Ga. App. 623, 455 S.E.2d 342 (1995), overruled by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Under the provisions of O.C.G.A. § 17-10-1 as the statute existed prior to the 1993 amendment, it was within the discretion of the trial court to impose a life sentence for armed robbery; a sentence for a specific number of years was not required. Null v. State, 216 Ga. App. 641, 455 S.E.2d 359 (1995).

Under the provisions of O.C.G.A. § 17-10-1 as the statute existed prior to the 1993 amendment, it was within the discretion of the trial court to impose a life sentence for rape; a sentence for a specific number of years was not required. Parker v. State, 216 Ga. App. 649, 455 S.E.2d 360 (1995).

Trial court correctly sentenced a defendant to serve life without the possibility of parole because the defendant was a four-time recidivist and the maximum sentence for rape was life in prison. Further, the state provided the defendant with notice prior to trial that the state would seek to have the defendant sentenced as a recidivist, pursuant to O.C.G.A. § 17-10-7. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).

Imposition of consecutive life sentences on two rape convictions was void because the sentence deprived the defendant of the right to receive a determinate sentence since the trial judge was authorized to impose a sentence "within the minimum and maximum prescribed by law as the punishment for the crime." Day v. State, 216 Ga. App. 29, 453 S.E.2d 73 (1994).

- O.C.G.A. § 16-8-41(b) (punishment for armed robbery), read in conjunction with O.C.G.A. § 17-10-1, authorizes the imposition of a life sentence or a determinate sentence at the discretion of the trial judge, whether or not the offender is a recidivist. Worley v. State, 265 Ga. 251, 454 S.E.2d 461 (1995).

- If there is no showing that the sentence of banishment from the county is unreasonable or otherwise fails to bear a logical relationship to the rehabilitative scheme of the sentence pronounced for the defendant's crime, there is no showing of an abuse of discretion, and the Court of Appeals may refuse to disturb the sentence of the trial court. Wilson v. State, 151 Ga. App. 501, 260 S.E.2d 527 (1979).

- Plea of guilty by the defendant appearing in the record, the defendant cannot be discharged, although the sentence is a nullity. In such event, the case is remanded to the court below with direction that the applicant be taken before the proper court in order that a legal sentence may be imposed upon the applicant. Heard v. Gill, 204 Ga. 261, 49 S.E.2d 656 (1948).

Guilty plea is a consideration in sentencing; a consideration that is not present when one is found guilty by a jury. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).

- Georgia Supreme Court has explained that a first offender's guilty plea does not constitute a conviction as that term is defined in the Criminal Code of Georgia. Mays v. State, 345 Ga. App. 562, 814 S.E.2d 418 (2018).

- Trial court did not err in failing to give the defendant a behavioral-incentive date as required by O.C.G.A. § 17-10-1(a)(1)(B) because although it was undisputed that the defendant had no prior felony convictions, and the trial court imposed only a sentence of probation, the plain language of § 17-10-1(a)(1)(B) provided that the statute only applied when a defendant was convicted of felony offenses and since the defendant was sentenced as a first offender, the defendant was not convicted of any felony offenses. Mays v. State, 345 Ga. App. 562, 814 S.E.2d 418 (2018).

- When considering the appropriate sentence, a trial judge may consider the entering of a "not guilty" plea by a defendant as evidence of that defendant's lack of remorse, but may not assess a harsher penalty merely because the state has exerted unnecessary energy in prosecuting that defendant. Sparks v. State, 176 Ga. App. 8, 335 S.E.2d 298 (1985).

Sentence received by one joint defendant is irrelevant in the trial of another. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980).

Criminal statutes must be strictly construed against the state and liberally in favor of human liberty. If a statute increasing a penalty is capable of two constructions, the statute should be construed so as to operate in favor of life and liberty. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979).

Former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7) did not compel a maximum sentence in confinement for second offenders, but the trial judge had discretion to probate or suspend this maximum sentence pursuant to former Code 1933, § 27-2502 (see O.C.G.A. § 17-10-1). Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979); Davis v. State, 154 Ga. App. 803, 269 S.E.2d 874 (1980).

- Pursuant to O.C.G.A. § 16-2-22(a), a corporation can be prosecuted for violating the law, and a court may sentence a corporation to serve a term for years (even though such sentence be incapable of enforcement) and may suspend that sentence and impose a fine. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

Under this section, the judge, not the jury, passed sentence after determination of guilt. Huff v. State, 135 Ga. App. 134, 217 S.E.2d 187 (1975).

- Discretion as to whether the sentences are to be served concurrently or consecutively resides entirely and solely with the trial judge, unaffected and uninfluenced by any recommendation of the jury in such respect, and it is error for the judge to be guided by a jury decision. Huff v. State, 135 Ga. App. 134, 217 S.E.2d 187 (1975).

- Denial of the defendant's motion attacking the defendant's consecutive sentences for burglary as void was affirmed as 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).

Nothing in the record affirmatively indicated that a trial court erroneously believed that the court had no discretion under O.C.G.A. § 17-10-1(a)(1) to suspend or probate a defendant's mandatory consecutive five-year sentence on a conviction for possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106(b); thus, the sentence was properly imposed consecutively to the defendant's sentence for trafficking in cocaine under O.C.G.A. § 16-13-31(a)(1). Weems v. State, 295 Ga. App. 680, 673 S.E.2d 50 (2009).

It could not be assumed that the trial court relied on the defendant's prior convictions in sentencing the defendant because although the trial court imposed maximum and consecutive sentences for the defendant's convictions, the record did not indicate that the trial court relied on the prior convictions in any way, and the trial court had the authority to enter those sentences regardless of any prior convictions pursuant to O.C.G.A. §§ 17-10-1(a)(1) and17-10-10(a). Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018).

Trial court did not err by sentencing the defendant to three consecutive 12-month sentences on probation with the first 12 months to be served on house arrest following the defendant's guilty plea to the offenses of statutory rape, fornication, and battery because the sentence was within the statutory limits and whether to impose consecutive or concurrent sentences for multiple offenses was within the trial court's discretion. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012).

- O.C.G.A. § 17-10-1 allows a trial court to sentence a defendant to any amount of time within the limits provided by the legislature. Pendleton v. State, 184 Ga. App. 358, 361 S.E.2d 663, cert. denied, 184 Ga. App. 910, 361 S.E.2d 663 (1987), cert. denied, 484 U.S. 1064, 108 S. Ct. 1025, 98 L. Ed. 2d 989 (1988).

Because the defendant's sentence fell within the statutory range of punishment, the sentence imposed by the trial court was not void and was not subject to post-appeal modification beyond that provided in O.C.G.A. § 17-10-1(f); moreover, the direct appeal authorized by Williams v. State was limited to that taken from a sentencing court's ruling on a pleading which asserted the sentence imposed a punishment which the law did not allow. Guice v. State, 282 Ga. App. 747, 639 S.E.2d 636 (2006).

- Imposition of the maximum punishment of life imprisonment for 24 of the offenses of which the defendant was convicted was not error. Jefferson v. State, 209 Ga. App. 859, 434 S.E.2d 814 (1993).

- It could not be assumed that the trial court relied on the defendant's prior convictions in sentencing the defendant because although the trial court imposed maximum and consecutive sentences for the defendant's convictions, the record did not indicate that the trial court relied on the prior convictions in any way, and the trial court had the authority to enter those sentences regardless of any prior convictions pursuant to O.C.G.A. §§ 17-10-1(a)(1) and17-10-10(a). Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018).

Trial court did not err in imposing maximum and consecutive sentences on the second defendant for the burglary and theft by taking convictions as the second defendant's prior convictions for three or more felonies qualified the second defendant to be sentenced as a recidivist, requiring the second 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).

Trial judge may properly impose greater sentence upon the defendant after hearing evidence at trial than the judge might have imposed in conjunction with a guilty plea. Arnold v. State, 163 Ga. App. 94, 292 S.E.2d 891 (1982).

- Since the motion for new sentencing was filed and heard after the term of court at which the original sentence was imposed, the trial court had no jurisdiction to resentence the defendant and the new sentence imposed was void and unenforceable. State v. Hinson, 164 Ga. App. 66, 296 S.E.2d 386 (1982).

- There is authority, when there is an error or irregularity in failing to inform the defendant of conditions which the defendant's sentence to confinement imposed, for correction by the court by recalling the defendant and sentencing the defendant as provided by law. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

- Since the defendant was convicted of prior felonies and the offense of rape was also a felony under O.C.G.A. § 16-6-1(b), the trial court's imposition of a suspended sentence under O.C.G.A. § 17-10-1 was void because the trial court was required to give the defendant a life sentence under O.C.G.A. § 17-10-7(a). State v. Scott, 265 Ga. App. 387, 593 S.E.2d 923 (2004).

Once a defendant begins to serve a sentence, the sentence may not be increased. Higdon v. Cooper, 247 Ga. 746, 279 S.E.2d 451 (1981).

- Court revoking probation because of a subsequent conviction may not make the revoked sentence consecutive to an intervening sentence. England v. Newton, 238 Ga. 534, 233 S.E.2d 787 (1977).

- Wording of this section was plain - a judge can probate a sentence in any case involving a felony except when the punishment is life imprisonment or death. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979).

Trial court is granted the power and authority under O.C.G.A. § 17-10-1 to probate a sentence under such rules and regulations as the court deems proper, and to revoke that probation during the term of court at which the sentence is imposed. Garland v. State, 160 Ga. App. 97, 286 S.E.2d 330 (1981).

- Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in this state as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

Trial court, pursuant to O.C.G.A. § 17-10-1(a)(1), has authority to suspend or probate all or any part of the entire sentence. Kaylor v. State, 312 Ga. App. 633, 719 S.E.2d 530 (2011).

- Language of former Code 1933, § 27-2702 (see O.C.G.A. § 42-8-34) seemed to refer to probation as a part of the original sentence, and the provision for a hearing must, considering the language as a whole, refer to a hearing on the type of sentence to be imposed, and not authorize the court, at a subsequent term, to add to the sentence a provision for probation when the sentence made no provision relating thereto in the first instance. Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 707 (1957).

- Trial court has no power to amend and modify a sentence in a criminal case after the term during which the sentence was imposed. Accordingly, if the defendant has been sentenced to an indeterminate term in the penitentiary without any provision for probation, it is proper for the court to refuse to entertain a motion made at a subsequent term that the sentence be modified so as to allow the defendant to serve the sentence on probation. Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 707 (1957).

Probated portion of sentence may be revoked or modified at any time during term of the probated sentence after hearing and finding of probation violation. Logan v. Lee, 247 Ga. 608, 278 S.E.2d 1 (1981).

- Trial court had authority to probate the defendant's sentence to confinement, even though more than four terms of court had passed since conviction and sentence, since the court did not intend the sentence to be the final sentence and probated the confinement after receiving a post-sentence investigator's report. State v. Johnson, 183 Ga. App. 236, 358 S.E.2d 840, cert. denied, 183 Ga. App. 907, 358 S.E.2d 840 (1987).

- In the absence of express authority to the contrary, there is no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

- Trial court did not err in sentencing the defendant to more than two years' supervised probation after a jury convicted the defendant of child molestation because the defendant's sentence to an extended period of supervised probation was pronounced after notice and hearing and for good cause shown as required by O.C.G.A. § 17-10-1(a)(2); the "good cause shown" was to protect children. O'Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010).

- Banishment of a defendant from specified areas in Georgia, imposed as a condition for suspension of a sentence by a trial court, does not violate the public policy of the state. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

- Because the defendant's sentence, including a condition that the defendant have no contact with the defendant's stepdaughter whom the defendant had molested and their son, born as a result of the molestation, O.C.G.A. § 42-8-35, was not indeterminate and was not illegal, the defendant's motion to modify the sentence under O.C.G.A. § 17-10-1 was barred by a waiver in the defendant's plea agreement. Jones v. State, 348 Ga. App. 653, 824 S.E.2d 575 (2019).

Court-ordered restitution may be imposed as a reasonable condition of probation. Morrison v. State, 181 Ga. App. 440, 352 S.E.2d 622 (1987).

Suspension of defendant's hunting and fishing privileges during the probation period imposed upon conviction of a violation of O.C.G.A. § 27-3-9, unlawful enticement of game, was not an abuse of discretion. Quintrell v. State, 231 Ga. App. 268, 499 S.E.2d 117 (1998).

Judge may suspend or probate sentence, but not both. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980).

- If a sentence could be simultaneously probated and suspended, an underlying purpose of the conditional suspension would be defeated. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980).

Condition for suspension that defendant obey all laws (state, federal, and municipal) is not so vague, indefinite, ambiguous, and uncertain as to be unenforceable. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973) (decided under former Code 1933, § 27-2502).

- Once service of a suspended sentence begins, either by incarceration or probation, it cannot exceed the maximum sentence of confinement which could have been imposed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

- Sentence of the defendant based on first offender treatment to five years' probation conditioned upon successive periods of confinement in a detention center, a diversion center, and in the defendant's house under intensive supervision was authorized and such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary. Penaherrera v. State, 211 Ga. App. 162, 438 S.E.2d 661 (1993).

Trial court did not err by sentencing the defendant to both confinement and probation in violation of the First Offender Act, under O.C.G.A. § 42-8-60(a), as the statute did not mandate a sentence of either confinement or probation, and the defendant's probation was not conditioned upon the defendant spending some specified time incarcerated; O.C.G.A. § 17-10-1(a)(1) granted to the sentencing judge the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. Johanson v. State, 260 Ga. App. 181, 581 S.E.2d 564 (2003).

Trial court did not err in denying the defendant's motions seeking to correct the defendant's sentence to consecutive 15-year terms for two convictions of armed robbery as: (1) the trial court's statement that "it would probably normally be my inclination to let you hold two life sentences" did not indicate that the trial court had adopted an inflexible and impermissible sentencing formula or that the trial court had a policy of refusing to consider first offender treatment for certain crimes; and (2) the defendant did not request that the trial court consider sentencing the defendant as a first offender. Green v. State, 265 Ga. App. 126, 592 S.E.2d 901 (2004).

After the defendant was found guilty of arson and sentenced, the sentence could not be modified pursuant to O.C.G.A. § 17-10-1(f) to grant the defendant first offender treatment because the plain language of the first offender statute, O.C.G.A. § 42-8-60 et seq., specifically prohibited such a modification after sentencing. Burchette v. State, 274 Ga. App. 873, 619 S.E.2d 323 (2005).

- Although O.C.G.A. § 17-10-7 mandates that a second offender must be sentenced to the maximum punishment for the offense of which convicted, there is no limitation on the trial court's authority under O.C.G.A. § 17-10-1 to grant probation of such a sentence. Jackson v. State, 158 Ga. App. 530, 281 S.E.2d 252 (1981); Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983).

- There is no limitation on the trial court's authority under O.C.G.A. § 17-10-1 to grant probation of sentence to a fourth-offender recidivist who under O.C.G.A. § 17-10-7 is not eligible for parole until the maximum sentence has been served since probation is not parole. Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983).

- Since the trial court did not exercise the court's discretion to consider probating appellant's sentence for theft by taking, the sentence for that offense was reversed and remanded so the trial court could determine whether any portion of the appellant's mandatory sentence should be probated. Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983).

- Consecutive sentences for defendant indicted and convicted of two counts of forgery in the first degree and one count of financial transaction card theft was not error. Harris v. State, 166 Ga. App. 202, 303 S.E.2d 534 (1983).

- Since the defendant's state prison sentence was concurrent with, and not to be longer than, a federal prison sentence, it was an indeterminate sentence in violation of O.C.G.A. § 17-10-1(a)(1) as the sentence was variable based on factors entirely within the control of the federal authorities. State v. Hart, 263 Ga. App. 8, 587 S.E.2d 164 (2003).

- There is nothing to prevent a defendant from both appealing and making a motion to modify the conviction. Porterfield v. State, 139 Ga. App. 553, 228 S.E.2d 722 (1976).

- Appellate court is not empowered to modify a sentence which is within the statutory limits and lawfully imposed. Thomas v. State, 139 Ga. App. 364, 228 S.E.2d 386 (1976).

- When the judgment of the trial court is appealed, and thereafter affirmed by an appellate court, the trial court is without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the sentence formerly imposed. Smith v. State, 146 Ga. App. 727, 247 S.E.2d 503 (1978).

- It is not a denial of equal protection of law guaranteed by U.S. Const., amend. 14 to impose a harsher sentence upon a defendant following a successful appeal and award of a new trial. Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 (1967) (decided under former Code 1933, § 27-2502).

- Vindictiveness against a defendant for having successfully attacked the defendant's first conviction must play no part in the sentence the defendant receives after a new trial. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).

- Court must include in the record an affirmative statement of the reasons underlying the decision to increase punishment upon resentencing, and those reasons should in fact support the imposition of the harsher penalty. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980).

- If the sentence imposed upon the defendant was within the statutory limits prescribed by law, the defendant's complaint that the defendant's sentence was excessive should be addressed to the appropriate sentence review panel. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188 (1981).

- Although the judge did not indicate the judge's reasoning for sentencing the defendant to the maximum penalty for the defendant's crime, there was no evidence that the judge was motivated to do so merely because the defendant refused to enter a guilty plea, and the sentence was within the minimum and maximum sentences prescribed by law. West v. State, 241 Ga. App. 877, 528 S.E.2d 287 (2000).

- When the defendant and the state agreed to a reduced charge of voluntary manslaughter and the state would recommend a 20-year sentence, the trial court did not have the authority, over the state's objection, to accept a guilty plea to voluntary manslaughter and sentence the defendant to a term of only ten years, with five to be served. State v. Kelley, 298 Ga. 527, 783 S.E.2d 124 (2016).

Modification of Sentence

When sentence may be amended.

- Judgments of a court are within the court's breast until the end of the term, and the sentence may be amended at any time during the term and before execution has begun. Schamber v. State, 152 Ga. App. 196, 262 S.E.2d 533 (1979).

Defendant was sentenced to 27 months in prison to be served concurrently with a federal prison term, but the defendant was scheduled for early release from federal prison, and the transcript from the sentencing hearing indicated that the defendant was not to serve any time in state court in addition to that served in federal court, thus, the trial court did not err in modifying the sentence to conform to the court's original intent 22 months after the sentence was imposed; O.C.G.A. § 17-10-1(f) did not abrogate a court's power to correct an erroneous recording of a sentence. State v. Hart, 263 Ga. App. 8, 587 S.E.2d 164 (2003).

Trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass, but if a sentence is void, the trial court may resentence the defendant at any time; a sentence is void if the court imposes punishment that the law does not allow. Copeland v. State, 264 Ga. App. 905, 592 S.E.2d 540 (2003).

Trial court erred in holding that because the term of court in which a defendant's sentence was imposed had expired, the court lacked jurisdiction to modify the sentence. Under O.C.G.A. § 17-10-1(f), the trial court had jurisdiction to rule upon the merits of the motion within the 120-day period following the court's receipt of a remittitur from a prior appeal. Davis v. State, 291 Ga. App. 252, 661 S.E.2d 872 (2008).

Trial court erred by denying the defendant's motion to vacate the defendant's amended sentence on drug-related charges as the trial court had no jurisdiction to amend the defendant's sentence since, at the time it was undertaken, over two years had passed since the sentence was originally pronounced; thus, under O.C.G.A. § 17-10-1(f), there was no jurisdiction to amend the sentence. Hall v. State, 291 Ga. App. 649, 662 S.E.2d 753 (2008).

- Former Code 1933, § 27-2702 (see O.C.G.A. § 42-8-34), which provides that the court shall not lose jurisdiction over a defendant during the term of a probated sentence but shall have power to change or modify the sentence during the period of time originally described for the probated sentence to run, had been modified by former Code 1933, § 27-2502 (see O.C.G.A. § 17-10-1), which provided that after the term of court at which a sentence is imposed by a judge, the judge shall have no authority to suspend, probate, modify, or change the sentence of the prisoner, except as otherwise provided. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978).

Defendant's motion to modify sentence was properly denied wherein the defendant asserted that the defendant's convictions should have merged for sentencing purposes because O.C.G.A. § 17-10-1(f) was not a proper procedural mechanism for asserting such a claim since the defendant pled guilty. Patterson v. State, 347 Ga. App. 105, 817 S.E.2d 557 (2018).

- Trial court did not err in denying the defendant's motion to vacate, void, or correct an illegal sentence several years after the defendant's sentence was imposed because the alleged errors in the defendant's case clearly went to the validity of the judgment of conviction entered on the defendant's guilty plea, not the validity of the defendant's sentence; Georgia law authorized the concurrent sentences of 10 years in prison for false imprisonment, and 20 years, with 13 years to be served in prison and the remainder on probation, for trafficking of persons for sexual servitude. Jones v. State Two Cases, 354 Ga. App. 29, 840 S.E.2d 117 (2020).

- Trial court did not err in modifying the appellant's sentence pursuant to O.C.G.A. § 17-10-1(f) because the record showed that prior to entering the modified sentence, the trial court provided timely notice and an opportunity to the state for a hearing under § 17-10-1(f). Cade v. State, 351 Ga. App. 637, 832 S.E.2d 453 (2019).

- Superior court judge cannot modify a sentence after the expiration of the term of court at which the sentence was imposed, unless the sentence imposed was a void sentence, in which case a new and valid sentence can be imposed by the trial judge at any time. Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973).

Motion to reduce sentence filed by the defendant was untimely since the defendant filed the motion after expiration of the term of court in which the defendant's sentence was entered. Levell v. State, 247 Ga. App. 615, 544 S.E.2d 523 (2001).

- If it appears on the face of the record that a valid verdict has been returned, a sentence not in accord with the verdict, though a nullity, may be corrected to conform to the verdict. This may be done after the expiration of the term at which the sentence was imposed. Heard v. Gill, 204 Ga. 261, 49 S.E.2d 656 (1948).

Because the trial court was authorized to impose concurrent ten year sentences to serve after the defendant entered guilty pleas to child molestation and aggravated child molestation, the judgment was not void and the court properly denied the defendant's petition to correct the void judgment. Barber v. State, 240 Ga. App. 56, 522 S.E.2d 238 (1999).

Trial court erred in dismissing the defendant's motion to withdraw a guilty plea as the defendant retained a statutory right to withdrawal under O.C.G.A. § 17-7-93(b) because the sentence imposed as a result of the guilty plea was void and the defendant had a right to withdrawal until a legal sentence was imposed. Kaiser v. State, 285 Ga. App. 63, 646 S.E.2d 84 (2007), cert. denied, No. S07C1275, 2007 Ga. LEXIS 696 (Ga. 2007).

Because O.C.G.A. § 16-13-31(f)(1) required a mandatory minimum sentence for trafficking in methamphetamine of ten years and a $200,000 fine, and the sentence imposed by the trial court failed to include the fine, the trial court's resentencing to add the fine after the defendant began serving the sentence was valid and did not violate the defendant's double jeopardy rights. The suspended sentence provisions of O.C.G.A. § 17-10-1(a) were inapplicable to the mandatory sentence provisions of § 16-13-31, and there was no indication that the trial court intended to suspend the fine portion. Strickland v. State, 301 Ga. App. 272, 687 S.E.2d 221 (2009).

It was not erroneous for the trial court to impose a sentence of 20 years for aggravated battery, O.C.G.A. § 16-5-24, because after the defendant's kidnapping conviction was voided, the trial court was authorized under O.C.G.A. § 17-10-1 to sentence the defendant to a term of years on the aggravated battery count, which could consist of up to 20 years. Griggs v. State, 314 Ga. App. 158, 723 S.E.2d 480 (2012).

Trial court's sua sponte order setting aside a modification of the defendant's sentence was proper because under O.C.G.A. § 17-10-1(f) the modification order itself was void because the trial court lacked jurisdiction to enter that order more than one year after the original sentencing. Gray v. State, 351 Ga. App. 703, 832 S.E.2d 857 (2019).

- Defendant's appeal was dismissed as the time period set forth in O.C.G.A. § 17-10-1(f) had passed and the defendant did not assert that the sentence was not one that the law allowed, but only took issue with the procedure employed in imposing the sentence or questioned the fairness of the sentence; defendant did not challenge any rulings on whether the sentence was void and was not entitled to a direct appeal. Hughes v. State, 273 Ga. App. 705, 615 S.E.2d 819 (2005).

Defendant could not appeal the denial of a motion to correct a void sentence as the motion was filed in 2007, more than 12 years after the defendant's conviction for armed robbery was affirmed and outside the statutory period in O.C.G.A. § 17-10-1(f), and the defendant's sentence of life imprisonment was not void as the sentence was within the range set out in former O.C.G.A. § 16-8-41(b). Brown v. State, 295 Ga. App. 66, 670 S.E.2d 867 (2008).

- Trial court did not err by denying the appellant's motion to modify the sentence for a robbery conviction because the motion was filed more than five years after the appellant filed the motion to withdraw the guilty plea; therefore, the appellant filed the motion to modify outside the statutory period set forth in O.C.G.A. § 17-10-1(f). Williams v. State, 331 Ga. App. 46, 769 S.E.2d 760 (2015).

- To the extent the defendant's motion to modify sought resentencing based on the merger of certain counts in the indictment as well as a change from consecutive to concurrent sentences, the trial court was without jurisdiction to grant such relief and properly denied the motion because the defendant's motion to modify the sentence was filed over 16 years after the defendant's guilty plea and sentencing. Rooney v. State, 318 Ga. App. 385, 734 S.E.2d 104 (2012).

- Defendant's claim that the trial court misapprehended the applicable sentencing ranges before sentencing the defendant did not constitute a claim that the sentence was void and was not a means for a post-appeal, post-O.C.G.A. § 17-10-1(f) sentence modification; thus, the trial court lacked jurisdiction to modify the defendant's sentence, the trial court's ruling on the pleading was not subject to direct appeal, and the appeal was dismissed. Reynolds v. State, 272 Ga. App. 91, 611 S.E.2d 750 (2005).

Appellant's motion for sentence modification, asserting that the sentences imposed for armed robbery and burglary were void because the sentences had been imposed without a presentence hearing having been held, was properly denied; rulings on pleadings asserting erroneous procedure or unfair treatment were not subject to direct appeal because those rulings were not rulings on whether the sentence was void, and inasmuch as the assertions contained in the appellant's post-appeal seeking sentence modification did not allege the sentences imposed were void (appellant acknowledged that the sentences were within the statutory range), appellant was not entitled to a direct appeal from the trial court's adverse ruling. Jones v. State, 278 Ga. 669, 604 S.E.2d 483 (2004).

Because O.C.G.A. § 16-8-41(b) is not ambiguous in its provision for a maximum sentence of life imprisonment, and because the defendant's sentence of life imprisonment fell within the statutory range of punishment, the defendant's sentence was not void. Hudson v. State, 334 Ga. App. 166, 778 S.E.2d 406 (2015).

Inmate's claim that two prior convictions that caused the inmate to be considered a recidivist under former O.C.G.A. § 17-10-7 and were used to sentence the inmate to life in prison without parole should not have been so used because the inmate had been pardoned, resulting in a void sentence, was properly dismissed because the inmate failed to produce evidence of a pardon. Prince v. State, 299 Ga. 888, 793 S.E.2d 38 (2016).

- Trial court properly held that the court lacked jurisdiction to entertain a defendant's motion to withdraw a guilty plea because the term of court at which the guilty plea was entered had expired; moreover, authority to modify sentences under O.C.G.A. § 17-10-1(f) did not include power to vacate conviction on which the sentence was based. Ellison v. State, 283 Ga. 461, 660 S.E.2d 373 (2008).

- While a trial judge loses the inherent right to modify a judgment after the term expires, a motion made during the term serves to extend the power to modify. Porterfield v. State, 139 Ga. App. 553, 228 S.E.2d 722 (1976); State v. Bradbury, 167 Ga. App. 390, 306 S.E.2d 346 (1983); Doby v. Evans, 258 Ga. 777, 373 S.E.2d 757 (1988).

- Regardless of whether O.C.G.A. § 17-10-1(f) applied to the defendant's December 2003 motion to set aside the sentence, that motion, filed four-and-one-half years after the sentence was imposed, was far too late; the motion was not filed in the term in which the sentence was entered, within a year of the date upon which the sentence was imposed, nor within 120 days of the trial court's receipt of a direct appeal remittitur. Reynolds v. State, 272 Ga. App. 91, 611 S.E.2d 750 (2005).

Trial court had no authority to reduce defendant's life sentence to 20 years and the defendant had no cause for complaint that the trial court vacated the void sentence-reduction order, when the express consideration for the reduction in sentence was the waiver of the defendant's appeal, and since the defendant pursued and secured an appellate review on the merits, no reversible error occurred, and the defendant must serve the life sentence that is statutorily mandated for the defendant's crime. Chandler v. State, 204 Ga. App. 512, 419 S.E.2d 751 (1992).

- While under former Code 1933, § 27-2702 (see O.C.G.A. § 42-8-34) the trial court had jurisdiction to change or modify the terms of the original sentence, the court cannot, under Ga. L. 1966, p. 440 § 1 (see O.C.G.A. § 42-8-38) and former Code 1933, 27-2502 (see O.C.G.A. § 17-10-1), increase the sentence originally passed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

- While it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of the person's sentence, the court is without power to change the sentence by increasing the punishment. This is considered a violation of the prohibition under U.S. Const., amend. 5 against double punishment or jeopardy. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

- Since the imposition of the terms and conditions of probation is a matter for the trial judge pursuant to O.C.G.A. § 17-10-1(a), if no such conditions have been provided by the trial court, the case is not one in which the panel may appropriately reduce a prison sentence by partial conversion of the prison sentence to probation. Warren v. State, 204 Ga. App. 191, 418 S.E.2d 783 (1992).

- Order modifying the trial court's prior banishment order imposed as a condition of the defendant's probation was upheld on appeal as was the denial of the defendant's motion to withdraw a negotiated plea because: (1) the defendant's sentence was independent and, thus, not part of the negotiated plea agreement; and (2) the trial court adequately considered that the defendant's crimes were likely motivated by the relationship the defendant had with the victim, the defendant's ex-spouse, where the ex-spouse resided and worked, as well as where the ex-spouse's immediate family lived, by determining that the banishment order was issued to protect those affected, but also served a rehabilitative purpose by removing a temptation by the defendant to re-offend. Hallford v. State, 289 Ga. App. 350, 657 S.E.2d 10 (2008).

Trial court did not err in denying the defendant's motion to vacate the defendant's sentence because the probation modification did not constitute punishment since the trial court retained jurisdiction to modify or change the probated sentence and changing the no violent contact order to no contact was not punishment but, rather, was for the purpose of protecting the victim. Bell v. State, 323 Ga. App. 751, 748 S.E.2d 114 (2013).

- Defendant's claim that multiple counts of the controlled substance and communications facility offenses were the same offense did not raise a valid allegation that the sentence was void and the trial court lacked jurisdiction to modify the sentence; therefore, the defendant's appeal was dismissed; the denial of the defendant's motion to vacate void counts of the conviction were not subject to direct appeal. Green v. State, 273 Ga. App. 654, 615 S.E.2d 818 (2005).

Because the defendant waived an error reciting the wrong date in the indictment on the record and failed to challenge the indictment by filing a timely written demurrer, a challenge to the indictment pursuant to a motion to vacate what the defendant termed a void and illegal conviction and sentence was rejected and an appeal from the denial of that motion was dismissed for lack of jurisdiction. Guice v. State, 282 Ga. App. 747, 639 S.E.2d 636 (2006).

Defendant's appeal of an order denying a motion to correct a void sentence was dismissed because the motion was well outside the statutory time period during which a court could correct or reduce a sentence pursuant to O.C.G.A. § 17-10-1(f); because the assertions contained in the defendant's post-O.C.G.A. § 17-10-1(f) motion seeking sentence modification did not allege that the sentences imposed were void, the defendant was not entitled to a direct appeal from the trial court's adverse ruling, and the trial court sentenced the defendant according to the state's recommendation pursuant to the plea negotiations. Jones v. State, 303 Ga. App. 319, 693 S.E.2d 499 (2010).

- Because the defendant failed to show that a sentence to two 20-year terms for child molestation was void as vindictive, pursuant to O.C.G.A. § 17-10-1(f), the denial of the defendant's motion for modification was not subject to a direct appeal. Frazier v. State, 302 Ga. App. 346, 691 S.E.2d 247 (2010).

- If a defendant was sentenced on two different charges, and one was affirmed on appeal while the other was reversed, the trial court had no authority to resentence the defendant on the conviction which had been affirmed. Dover v. State, 195 Ga. App. 507, 393 S.E.2d 760 (1990).

- Trial court's sua sponte declaration that a probation condition barring the defendant's practice of medicine was to persist forever was not a part of the negotiated plea and sentence, and the defendant did not agree to this modification of the sentence; the trial court's modification to the agreed upon sentence violated O.C.G.A. § 17-10-1(a)(1). Kaiser v. State, 275 Ga. App. 684, 621 S.E.2d 802 (2005).

- Trial court did not violate the defendant's constitutional rights by considering the defendant's illegal alien status a relevant factor in formulating an appropriate sentence within the statutory range for burglary under O.C.G.A. § 16-7-1(a); the trial court properly considered that the court could not order the defendant to work as a condition of probation. Trujillo v. State, 304 Ga. App. 849, 698 S.E.2d 350 (2010).

- Because the defendant's final sentence of 60 years to serve was not longer than the original sentence of life followed by additional terms of years, the trial court was not vindictive in imposing the new sentence as the court did. Griggs v. State, 314 Ga. App. 158, 723 S.E.2d 480 (2012).

Revocation of Probation or Suspension

No retroactive application of statute.

- Legislature did not dictate that O.C.G.A. § 17-10-1(a) applies retroactively to limit probation sentences imposed before its effective date (May 8, 1992). Department of Cors. v. Hicks, 209 Ga. App. 165, 433 S.E.2d 64 (1993).

- O.C.G.A. § 17-10-1(a)(3)(A) deals exclusively with the type of facility or program to which a court may order a defendant whose probation is revoked; the statute does not speak to the length of detention and did not authorize revocation of the balance of the defendant's probation for the commission of two new violent misdemeanors. Lawrence v. State, 228 Ga. App. 745, 492 S.E.2d 727 (1997).

Probation may be revoked for committing subsequent crime. Layson v. Montgomery, 251 Ga. 359, 306 S.E.2d 245 (1983).

Warden of a county Department of Corrections was entitled to qualified immunity on a former inmate's unlawful detention claims; the warden acted within the warden's discretionary authority when the warden revoked the inmate's work release for escape and transferred the inmate to full-time incarceration, and the inmate did not show a violation of clearly established law because the inmate made no showing that the inmate was clearly entitled to be released at the end of a probation revocation sentence. Coons v. Gwinnett Cnty., 657 Fed. Appx. 856 (11th Cir. 2016)(Unpublished).

- By reading former Code 1933, §§ 27-2502 and 27-2702 (see O.C.G.A. §§ 17-10-1 and42-8-34), a trial judge can revoke a probated sentence that was to begin at a future date. Parrish v. Ault, 237 Ga. 401, 228 S.E.2d 808 (1976); Roberts v. State, 148 Ga. App. 708, 252 S.E.2d 209 (1979).

- There is no merit in the contention that a court, or a judge thereof, loses jurisdiction of the defendant's case after the defendant has served a minimum sentence since a probated sentence is served under the supervision of the judge imposing the probation and the judge may after a hearing revoke the probation at any time during the maximum period covered thereby if the defendant violates any of the rules and regulations upon which the probation was granted. Balkom v. Johnson, 211 Ga. 314, 85 S.E.2d 762 (1955).

- Habeas court erred by revoking the petitioner's remaining portion of the original sentence while the petitioner was in the legal custody of the Georgia Board of Pardons and Paroles as such action was in violation of the separation of powers provision of Ga. Const. 1983, Art. I, Sec. II, Para. III. Hayward v. Danforth, 299 Ga. 261, 787 S.E.2d 709 (2016).

- Suspended sentence is perhaps undefinable, but the court may provide rules and regulations in connection therewith and may, on violation of such rules and after notice and opportunity to be heard, during the time such sentence runs in accordance with its own terms, revoke the suspension and require that the remainder be served within a penal institution. Cross v. State, 128 Ga. App. 744, 197 S.E.2d 853 (1973).

- Judge only has authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

- To deprive a defendant of liberty upon the theory that the defendant violated rules and regulations prescribed in the defendant's sentence, when no rules, regulations, conditions, limitations, or restrictions were imposed by such sentence, would deprive the defendant of "due process of law." Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

- If a condition in the sentence for obedience of laws is reflected only in a later written order, knowledge of such condition not being imputable to the defendant, the effect of such a sentence is an unconditional discharge. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

- Evidence required to revoke a suspension is only some evidence that the defendant has violated the conditions of the probation which satisfies the trial court hearing the evidence in the exercise of a very wide discretion. It is not necessary to show that the defendant has been convicted of the act constituting the violation of the probation. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973).

- Petition by county officials to revoke a bankruptcy debtor's suspended sentence to coerce payment of child support was not criminal in character and, thus, was not excepted from automatic stay as a continuation of a criminal proceeding under the bankruptcy law. Rollins v. Campbell, 200 Bankr. 427 (Bankr. N.D. Ga. 1996).

- If a probated future consecutive sentence is imposed by the same judge who imposed prior probated sentences, and the conditions of probation for all the sentences are essentially the same, the trial court, upon a violation thereof, is empowered to revoke the defendant's probation as to all sentences. Dasher v. State, 166 Ga. App. 237, 304 S.E.2d 87 (1983).

- Revocation of probation based on the defendant's failure of a drug test was error because the test result lacked probative value since no expert testimony was offered by the state to prove the scientific reliability of the ontrack system as used for the purpose of drug detection. Bowen v. State, 242 Ga. App. 631, 531 S.E.2d 104 (2000).

- Use of the amended version of O.C.G.A. § 42-8-34.1 when an appellant's probation was revoked due, in part, to the appellant's failure to abide by a special condition of the probation, did not implicate ex post facto concerns inasmuch as the imposition of a probated sentence is within the discretion of the sentencing court and the appellant did not have a substantial right to receive probation, much less to receive probation that could not be revoked in its entirety upon violation of a special condition of probation. Walker v. Brown, 281 Ga. 468, 639 S.E.2d 470 (2007).

- Trial court erred in revoking defendant's probation on a basis that was not alleged in the state's revocation petition as the state's petition to revoke sought to do so on the ground that the defendant committed a new offense of misdemeanor stalking, but the trial court's order provided that it was revoking probation on the ground that the defendant committed a new felony offense, presumably the offense of aggravated stalking mentioned by the state during the revocation hearing. Ponder v. State, 341 Ga. App. 276, 800 S.E.2d 19 (2017).

Defendant's probation may not be revoked when there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there was evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given; thus, if a judgment was based upon an offense not charged in the petition for revocation, it must be reversed. Ponder v. State, 341 Ga. App. 276, 800 S.E.2d 19 (2017).

ANALYSIS

• General Consideration
• Correction of Sentencing Errors
• Modification of Sentence

General Consideration

Probation supervision fee.

- Trial courts are authorized under O.C.G.A. § 17-10-1(a) to require, as a condition of probation, the payment of a monthly $10 probation supervision fee. 1985 Op. Att'y Gen. No. U85-4.

- Unless the judge expressly states in the order that the judge is placing the defendant on probation, the defendant receives the sentence which is prescribed. 1968 Op. Att'y Gen. No. 68-398.

- All convicted felons sentenced to a term of incarceration serve the felons' sentences under the jurisdiction of the Georgia Department of Corrections. Judges of the superior courts lack the authority to sentence the inmate to the custody of any other person or entity. 1993 Op. Att'y Gen. No. 93-17.

- All felons and misdemeanants, other than those misdemeanants committed directly to a county public works camp (now county correctional institute), must be committed directly and exclusively to the State Board of Corrections (now Board of Offender Rehabilitation). Only the director of corrections (now commissioner of offender rehabilitation) is authorized to prescribe the place of confinement; so the portion of a sentence committing an inmate to a term of penal servitude in the state prison system which commits the inmate to an institution of the Department of Human Resources is surplusage and should not be relied upon by the officials of the hospital or the Board of Corrections (now Board of Offender Rehabilitation) as authority for the retention of custody of the inmate at the hospital. 1970 Op. Att'y Gen. No. 70-133.

- Employment Security Act, O.C.G.A. § 34-8-1 et seq., does not authorize the imposition of a criminal sentence for unemployment fraud that permits community service in lieu of restitution of overpaid benefits to the Department of Labor. 1993 Op. Att'y Gen. No. 93-15.

- Sentencing court may not require an offender to make restitution on those counts of a multi-count indictment which are dismissed pursuant to a negotiated plea agreement; however, if an offender voluntarily agrees to make restitution in a certain amount, even if such amount exceeds the victim's "damages," the sentencing court may incorporate that agreement into the court's restitution order. 1995 Op. Att'y Gen. No. 95-19.

- While misdemeanants may only be referred to probation centers upon initial sentencing pursuant to O.C.G.A. § 42-8-35.4, misdemeanants may also be referred to such facilities pursuant to probation revocation proceedings under O.C.G.A. § 42-8-34.1 and after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A). 1999 Op. Att'y Gen. No. 99-14.

Correction of Sentencing Errors

Judge may correct void sentence or clerical errors.

- Although a judge is prohibited from modifying a sentence, the court possesses the inherent power to change or correct a judgment or sentence handed down if there are clerical errors appearing on the face of the judgment or the original sentence was void. 1979 Op. Att'y Gen. No. 79-42.

- Court, after the term of court in which the judgment was rendered has expired, may change the judgment rendered if clerical errors appear in the sentence or the initial sentence was void. 1979 Op. Att'y Gen. No. 79-42.

Any modification of a sentence after a term of court in which the sentence was rendered is void with the exception of sentences for misdemeanors under former Code 1933, 27-2506 (see O.C.G.A. § 17-10-3(a)(1)), or unless the court bases the court's modification of an existing sentence on the premise that a clerical error was made or that a motion to modify the sentence was made during the term of court in which the sentence was filed. 1980 Op. Att'y Gen. No. 80-43.

- After the term of court in which the judgment was rendered, a court may only change or modify the judgment imposed to the extent necessary to correct clerical errors appearing on the face of the judgment. Such modifications may be made even though the judgment imposed has already been satisfied by the defendant. 1979 Op. Att'y Gen. No. 79-42.

- District attorney represents the state in the prosecution of cases and is the most appropriate party, not the State Board of Pardons and Paroles, to question the validity of amended sentences. 1980 Op. Att'y Gen. No. 80-43.

- Whether the sentence has been served or the fine has been paid does not affect the ability of a court to modify or change a sentence of the court if such change is beneficial to the defendant. 1979 Op. Att'y Gen. No. 79-42.

- Execution of a probated sentence, involving payment of fines and restitution as conditions of probation, is suspended during the pendency of an appeal. 1975 Op. Att'y Gen. No. 75-30.

Modification of Sentence

Judge may not reserve right to alter sentence after court term.

- Court may not reserve the right to change or modify a sentence after the expiration of the term at which the sentence was rendered. 1945-47 Op. Att'y Gen. p. 112.

- Sentencing judge may not alter a person's sentence to run concurrently rather than consecutively after the person has served a number of years on that sentence. 1963-65 Op. Att'y Gen. p. 309.

RESEARCH REFERENCES

C.J.S.

- 24 C.J.S., Criminal Procedure and Rights of the Accused, §§ 2183 et seq., 2282 et seq.

- Reduction by appellate court of punishment imposed by trial court, 29 A.L.R. 313; 89 A.L.R. 295.

Necessity and sufficiency of adjudication of guilt, or of recital of or reference to verdict in judgment pronouncing sentence in criminal case, 69 A.L.R. 792.

Sentence for new offense committed while accused was on parole or conditional release, as concurrent or consecutive, 116 A.L.R. 811.

What constitutes commencement of service of sentence, depriving court of power to change sentence, 159 A.L.R. 161.

Voluntary absence of accused when sentence is pronounced, 6 A.L.R.2d 997; 59 A.L.R.5th 135.

Validity, under indeterminate sentence law, of sentence fixing identical minimum and maximum terms of imprisonment, 29 A.L.R.2d 1344.

Court's right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant, 96 A.L.R.2d 768.

Necessity and sufficiency of question to defendant as to whether he has anything to say why sentence should not be pronounced against him, 96 A.L.R.2d 1292.

Propriety of increased punishment on new trial for same offense, 12 A.L.R.3d 978.

State court's power to place defendant on probation without imposition of sentence, 56 A.L.R.3d 932.

Court's presentence inquiry as to, or consideration of, accused's intention to appeal, as error, 64 A.L.R.3d 1226.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part, 73 A.L.R.3d 474.

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.

Power of state court, during same term, to increase severity of lawful sentence - modern status, 26 A.L.R.4th 905.

Power of court to increase severity of unlawful sentence - modern status, 28 A.L.R.4th 147.

Propriety of sentencing judge's consideration of defendant's perjury or lying in pleas or testimony in present trial, 34 A.L.R.4th 888.

Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069.

Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

When does delay in imposing sentence violate speedy trial provision, 86 A.L.R.4th 340.

Vulnerability of victim as aggravating factor under state sentencing guidelines, 73 A.L.R.5th 383.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 99 A.L.R.5th 557.

Downward departure under state sentencing guidelines based on extraordinary family circumstances, 106 A.L.R.5th 377.

Downward departure under state sentencing guidelines permitting downward departure for defendants with significantly reduced mental capacity, including alcohol or drug dependency, 113 A.L.R.5th 597.

Validity of condition of probation, supervised release, or parole restricting computer use or internet access, 4 A.L.R.6th 1.

Validity, construction, and application of conditions of probation or supervised release prohibiting contact with minors or frequenting places where minors congregate - state cases, 4 A.L.R.7th 3.

Propriety, in criminal case, of Federal District Court order restricting defendant's right to re-enter or stay in United States, 94 A.L.R. Fed. 619.

Downward departure from United States Sentencing Guidelines (USSG § 1A1.1 et seq.) based on extraordinary family circumstances, 145 A.L.R. Fed. 559.

Downward departure from United States Sentencing Guidelines (USSG § 1A1.1 et seq.) based on vulnerability to abuse in prison, 155 A.L.R. Fed. 327.

Downward departure from United States Sentencing Guidelines (U.S.S.G. § 1A1.1 et seq.) based on aberrant behavior, 164 A.L.R. Fed. 61.

Construction and application of United States sentencing guideline § 2a2.1(b)(1), 18 U.S.C.A., providing enhancement for attempted murder or assault with intent to commit murder dependent upon nature or degree of injury, 30 A.L.R. Fed. 2d 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.

Construction and application of "official victim" sentencing enhancement of U.S.S.G. § 3a1.2(c) concerning law enforcement officers and prison officials, 32 A.L.R. Fed. 2d 371.

Construction and application of U.S.S.G. § 3b1.1(s) providing sentencing enhancement for organizer or leader of criminal activity - fraud offenses, 32 A.L.R. Fed. 2d 445.

Downward adjustment for acceptance of responsibility under U.S.S.G. § 3e1.1, 18 USCS - fraud offenses, 33 A.L.R. Fed. 2d 477.

Construction and application of U.S.S.G. § 5h1.3, concerning mental and emotional conditions as ground for sentencing departure, 34 A.L.R. Fed. 2d 457.

Construction and application of U.S.S.G. § 3b1.1(b) providing sentencing enhancement for manager or supervisor of criminal activity - drug offenses - cocaine, 35 A.L.R. Fed. 2d 467.

Validity, construction, and application of U.S.S.G. § 5k2.8, providing for upward sentence departure for extreme conduct, 36 A.L.R. Fed. 2d 95.

Construction and application of U.S.S.G. § 2x1.1, providing sentencing guideline for conspiracy not covered by specific offense guideline, 37 A.L.R. Fed. 2d 449.

Construction and application of U.S.S.G., § 3b1.1(a), 18 USCS, providing sentencing enhancement for organizer or leader of criminal activity - drug offenses, 43 A.L.R. Fed. 2d 365.

Validity, construction, and application of conditions of probation or supervised release prohibiting contact with minors or frequenting places where minors congregate - federal cases, 83 A.L.R. Fed. 2d 51.

Representing Criminal Defendants at Sentencing Hearings, 44 Am. Jur. Trials 459.