2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-3. Punishment for Misdemeanors Generally

1. Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows:
   1. By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both;
   2. By confinement under the jurisdiction of the Board of Corrections in a state probation detention center pursuant to Code Section 42-8-35.4 for a determinate term of months which shall not exceed a total term of 12 months; or
   3. If the crime was committed by an inmate within the confines of a state correctional institution, by confinement under the jurisdiction of the Board of Corrections in a state correctional institution or such other institution as the Department of Corrections may direct for a term which shall not exceed 12 months.
2. Either the punishment provided in paragraph (1) or (2) of subsection (a) of this Code section, but not both, may be imposed in the discretion of the sentencing judge. Misdemeanor punishment imposed under either paragraph may be subject to suspension or probation. The sentencing courts shall retain jurisdiction to amend, modify, alter, suspend, or probate sentences under paragraph (1) of subsection (a) of this Code section at any time, but in no instance shall any sentence under the paragraph be modified in a manner to place a county inmate under the jurisdiction of the Board of Corrections, except as provided in paragraph (2) of subsection (a) of this Code section.
3. In all misdemeanor cases in which, upon conviction, a six-month sentence or less is imposed, it is within the authority and discretion of the sentencing judge to allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant. A weekend shall commence and shall end in the discretion of the sentencing judge, and the nonworking hours of the defendant shall be determined in the discretion of the sentencing judge; provided, however, that the judge shall retain plenary control of the defendant at all times during the sentence period. A weekend term shall be counted as serving two days of the full sentence. Confinement during the nonworking hours of a defendant during any day may be counted as serving a full day of the sentence.
4. In addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, or punishment of a municipal ordinance involving a traffic offense, with the exception of habitual offenders sentenced under Code Section 17-10-7, a judge may impose any one or more of the following sentences:
   1. Reexamination by the Department of Driver Services when the judge has good cause to believe that the convicted licensed driver is incompetent or otherwise not qualified to be licensed;
   2. Satisfactory completion of a defensive driving course or defensive driving program approved by the Department of Driver Services;
   3. Within the limits of the authority of the charter powers of a municipality or the punishment prescribed by law in other courts, imprisonment at times specified by the court or release from imprisonment upon such conditions and at such times as may be specified; or
   4. Probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge. The conditions may include driving with no further motor vehicle violations during a specified time unless the driving privileges have been or will be otherwise suspended or revoked by law; reporting periodically to the court or a specified agency; and performing, or refraining from performing, such acts as may be ordered by the judge.
5. Any sentence imposed under subsection (d) of this Code section shall be reported to the Department of Driver Services as prescribed by law.
6. The Department of Community Supervision shall lack jurisdiction to supervise misdemeanor offenders, except when the sentence is made concurrent to a probated felony sentence or as provided in Code Section 42-8-109.5. Except as provided in this subsection, the Department of Corrections shall lack jurisdiction to confine misdemeanor offenders.
7. This Code section will have no effect upon any offender convicted of a misdemeanor offense prior January 1, 2001, and sentenced to confinement under the jurisdiction of the Board of Corrections or to the supervision of the Department of Corrections.

(Orig. Code 1863, § 4209; Ga. L. 1865-66, p. 233, § 2; Code 1868, §§ 4245, 4608; Code 1873, §§ 4310, 4705; Ga. L. 1878-79, p. 54, § 1; Code 1882, §§ 4310, 4705; Ga. L. 1895, p. 63, § 2; Penal Code 1895, § 1039; Ga. L. 1908, p. 1119, § 1; Penal Code 1910, § 1065; Code 1933, § 27-2506; Ga. L. 1956, p. 161, § 4; Ga. L. 1957, p. 477, § 5; Ga. L. 1964, p. 485, § 1; Ga. L. 1970, p. 236, § 10; Ga. L. 1972, p. 600, § 1; Ga. L. 1974, p. 361, § 1; Ga. L. 1974, p. 631, § 1; Ga. L. 1976, p. 210, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1992, p. 3221, § 2; Ga. L. 1997, p. 1526, § 1; Ga. L. 2000, p. 1643, § 1; Ga. L. 2001, p. 1030, § 2; Ga. L. 2002, p. 415, § 17; Ga. L. 2005, p. 334, § 7-4/HB 501; Ga. L. 2014, p. 710, § 1-3/SB 298; Ga. L. 2015, p. 422, § 5-32/HB 310; Ga. L. 2016, p. 443, § 13-5/SB 367.)

- Time limitation on prosecutions for misdemeanors, § 17-3-1.

Additional penalties for violations of municipal ordinances, § 36-30-8.

Sentences for misdemeanor traffic offenses, § 40-13-26.

Jurisdiction of Department of Offender Rehabilitation over misdemeanor offenders generally, § 42-5-51.

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

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

- Pursuant to Code Section 28-9-5, in 2013, "or when the sentence is accepted pursuant to Code Section 42-9-71" was deleted following "felony sentence" at the end of the first sentence of subsection (f).

- 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.

- Offender administration, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Departmental Operations, Chapter 125-2-4.

- 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 article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). 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 note, "Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors' Prison System," see 48 Ga. L. Rev. 227 (2013).

ANALYSIS

• General Consideration
• Multiple Offenses
• Probation
• Sentence Improper
• Sentence Proper
• Review

Effect of this section was not merely confined to the misdemeanors enumerated in the Code, but had a prospective force. Anderson v. State, 2 Ga. App. 1, 58 S.E. 401 (1907).

- If a statute makes penal certain acts which do not otherwise constitute a crime and prescribes the manner of punishment for such acts, the special statute and not the general law is controlling as to the limits of such punishment. Curtis v. State, 102 Ga. App. 790, 118 S.E.2d 264 (1960).

- Punishment schemes contemplated by O.C.G.A. § 40-6-1 are: (1) punishment for violations of sections that have not "otherwise declared" their own penalties will be as provided for in O.C.G.A. § 17-10-3; and (2) punishment for violations of sections that have criminalized certain acts and prescribed particular punishments will be controlled by the specific penalties imposed by such sections. Chastain v. State, 231 Ga. App. 225, 498 S.E.2d 792 (1998).

- Court, having the power to both pass upon a defendant a sentence of 12 months and to impose a fine of not exceeding $1,000.00, can do less than both, and can do so without giving a defendant any election as to paying or refusing to pay the fine. Dickson v. Officers of Court, 36 Ga. App. 341, 136 S.E. 537, cert. denied, 36 Ga. App. 825, S.E. (1927).

- Sentence imposed upon a prisoner convicted of a misdemeanor should express the full punishment which the trial judge may, in a wise exercise of the discretion vested in the judge by this section, deem merited by the prisoner because of the offense committed by the prisoner, without regard to what the prisoner's future conduct may be and independently of any contingency which may arise after sentence has been pronounced and the court has lost the power to impose punishment on the prisoner. A penalty to be inflicted upon the prisoner in the event the prisoner shall subsequently apply for relief from sentence to jail imprisonment cannot legally be imposed; nor, if the prisoner be sentenced to a term in jail, can the court legally impose as an additional alternative punishment, in the event the prisoner fails to pay a fine, another definite term of imprisonment in jail. Wallace v. State, 126 Ga. 749, 55 S.E. 1042 (1906).

- Under the terms of this section, the court had authority to impose a sentence confining the defendant in the chain gang for a period of 12 months. The fact that the court divided the sentence into two periods of six months each did not make the total sentence to the chain gang exceed the period fixed by the statute. Scott v. McClelland, 162 Ga. 443, 133 S.E. 923 (1926); Henry v. State, 77 Ga. App. 735, 49 S.E.2d 681 (1948).

- See Roper v. Mallard, 193 Ga. 684, 19 S.E.2d 525 (1942).

- If the defendant was adjudicated guilty on all counts, the trial court retained authority to correct the court's oversight in failing to impose sentence on one count in the court's initial sentencing order by imposing that sentence after denial of a motion for new trial. Hirjee v. State, 226 Ga. App. 573, 487 S.E.2d 40 (1997).

Once defendant serves defendant's sentence, jurisdiction over the defendant ceases. State v. Mohamed, 203 Ga. App. 21, 416 S.E.2d 358 (1992).

- Under the express terms of this section, the sentencing court's continuing jurisdiction does not apply when a defendant has been sentenced to serve a misdemeanor sentence in a place under the jurisdiction of the State Board of Corrections (now Board of Offender Rehabilitation). Mauldin v. State, 139 Ga. App. 13, 227 S.E.2d 862 (1976).

- Trial court's power to rescind, modify, or change a sentence "at any time" is limited by its terms to the sentence itself or its conditions and the court may not go behind the sentence to readdress the merits of a plea which was ruled on in a preceding term. State v. James, 211 Ga. App. 149, 438 S.E.2d 399 (1993).

- Trial court retained the discretionary authority to grant the defendant's motion to modify any misdemeanor sentences imposed under the statute even after expiration of the term in which the sentences were imposed. Patel v. State, 247 Ga. App. 815, 545 S.E.2d 383 (2001).

- City Court of Savannah, having jurisdiction to try certain misdemeanors, and upon conviction of the accused to impose any one or all of the penalties specified in this section, within the discretion of the trial judge, the superior court has no power, under the writ of certiorari, to modify a sentence which imposes a punishment not exceeding the maximum punishment prescribed by that law. Brown v. State, 149 Ga. 816, 102 S.E. 449 (1920).

- If habeas corpus is brought, the respondent being a person who holds the applicant in custody under an illegal contract with the sheriff of the county, there is no error in ordering that the applicant be remanded to the custody of the jailer of the county in which the conviction took place, there to be held until discharged by law. Russell v. Tatum, 104 Ga. 332, 30 S.E. 812 (1898).

- It is absurd to hold that the mere appointment by the county of guards, without more, is such an assertion of control, management, and authority by the county as to save the hiring of the county's misdemeanor convicts to private persons. Daniel v. State, 114 Ga. 533, 40 S.E. 805 (1902).

Corporation may be fined but not imprisoned. Southern Ry. v. State, 125 Ga. 287, 54 S.E. 160, 114 Am. St. R. 203, 5 Ann. Cas. 411 (1906).

- Trial court, having instructed the jury that if the jury find the defendant guilty of the felony charged the jury has the right to recommend misdemeanor punishment, and that thereupon the trial court in the court's discretion might punish the defendant as for a misdemeanor, was not required to charge the provisions of this section. Allison v. State, 110 Ga. App. 266, 138 S.E.2d 335 (1964).

- Georgia law does not require courts to treat both drivers cited for an accident equally. McLeod v. State, 251 Ga. App. 371, 554 S.E.2d 507 (2001).

Cited in McDonald v. State, 6 Ga. App. 339, 64 S.E. 1108 (1909); Harris v. State, 18 Ga. App. 502, 89 S.E. 589 (1916); King v. State, 37 Ga. App. 140, 140 S.E. 513 (1927); Swanson v. State, 38 Ga. App. 386, 144 S.E. 49 (1928); Davis v. State, 53 Ga. App. 325, 185 S.E. 400 (1936); Williams v. City of Atlanta, 61 Ga. App. 606, 7 S.E.2d 82 (1940); Taylor v. Georgia, 315 U.S. 25, 62 S. Ct. 415, 86 L. Ed. 615 (1942); Martin v. State, 75 Ga. App. 807, 44 S.E.2d 562 (1947); Alred v. Celanese Corp. of Am., 205 Ga. 371, 54 S.E.2d 240 (1949); Pedigo v. Celanese Corp. of Am., 205 Ga. 392, 54 S.E.2d 252 (1949); Lancaster v. State, 83 Ga. App. 746, 64 S.E.2d 902 (1951); Jenkins v. Jones, 209 Ga. 758, 75 S.E.2d 815 (1953); Bennett v. State, 101 Ga. App. 99, 112 S.E.2d 796 (1960); Sawyer v. State, 112 Ga. App. 885, 147 S.E.2d 60 (1966); Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968); Morris v. State, 119 Ga. App. 157, 166 S.E.2d 382 (1969); Parks v. State, 230 Ga. 157, 195 S.E.2d 911 (1973); Tischmak v. State, 133 Ga. App. 534, 211 S.E.2d 587 (1974); King v. State, 134 Ga. App. 636, 215 S.E.2d 532 (1975); Heard v. State, 135 Ga. App. 685, 218 S.E.2d 866 (1975); Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976); Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978); Dorsey v. State, 145 Ga. App. 750, 245 S.E.2d 31 (1978); Taylor v. State, 149 Ga. App. 362, 254 S.E.2d 432 (1979); Sutton v. Garmon, 245 Ga. 685, 266 S.E.2d 497 (1980); Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981); State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151 (1981); Collins v. State, 160 Ga. App. 680, 288 S.E.2d 43 (1981); Tillman v. State, 249 Ga. 792, 294 S.E.2d 516 (1982); Monroe v. State, 250 Ga. 30, 295 S.E.2d 512 (1982); Littlejohn v. State, 165 Ga. App. 562, 301 S.E.2d 917 (1983); Bowles v. State, 168 Ga. App. 763, 310 S.E.2d 250 (1983); Smith v. State, 174 Ga. App. 238, 329 S.E.2d 507 (1985); Billingslea v. State, 177 Ga. App. 775, 341 S.E.2d 305 (1986); Williams v. State, 178 Ga. App. 216, 342 S.E.2d 703 (1986); Branch v. State, 182 Ga. App. 818, 357 S.E.2d 136 (1987); Dover v. State, 195 Ga. App. 507, 393 S.E.2d 760 (1990); Wilburn v. State, 223 Ga. App. 476, 477 S.E.2d 909 (1996); Brison v. State, 248 Ga. App. 168, 545 S.E.2d 345 (2001); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Hirjee v. State, 263 Ga. App. 185, 587 S.E.2d 144 (2003); Cole v. State, 262 Ga. App. 856, 586 S.E.2d 745 (2003); Smith v. State, 270 Ga. App. 759, 608 S.E.2d 35 (2004); Putman v. State, 270 Ga. App. 45, 606 S.E.2d 50 (2004); English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006); State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012); Anderson v. Sentinel Offender Servs., LLC, 298 Ga. 854, 784 S.E.2d 791 (2016).

Multiple Offenses

Separate penalties for separate occurrences of same crime.

- Same crime which occurred at different times but on the same day constitute separate crimes authorizing a separate penalty as to each. As long as the respective sentences are not greater than the maximum sentence provided by law, the sentences are not excessive. Rucker v. State, 133 Ga. App. 180, 210 S.E.2d 365 (1974).

There may be a cumulative sentence for different misdemeanors charged in one indictment. Bishop v. State, 21 Ga. App. 236, 94 S.E. 49 (1917); Davis v. State, 213 Ga. App. 212, 444 S.E.2d 142 (1994).

- If a verdict of guilty is rendered on a number of counts, a sentence which does not exceed that which may legally be imposed on any one count is supported by the indictment, if any count is good. Brannon v. State, 21 Ga. App. 328, 94 S.E. 259 (1917).

Probation

Court cannot reserve right to revoke probation without notice or hearing.

- If a probation sentence is given, the trial judge is without authority to reserve therein the right to revoke the probation sentence without notice or hearing. Balkcom v. Gunn, 206 Ga. 167, 56 S.E.2d 482 (1949).

- One serving a sentence on probation is fulfilling that person's sentence as effectually as if confined in jail or on the chain gang and, accordingly, if after a hearing the order granting such probation is revoked, the time served by the defendant before the revocation must be counted in the defendant's favor and deducted from the period of service imposed. Roper v. Mallard, 193 Ga. 684, 19 S.E.2d 525 (1942).

Suspension of defendant's driver's license after conviction of a traffic-related offense was a reasonable condition of probation. Brock v. State, 165 Ga. App. 150, 299 S.E.2d 71 (1983).

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).

- When a repeat offender was convicted on two counts of misdemeanor theft and the trial court imposed probated confinement for a period of five years when the maximum period of confinement which could be imposed was for a term of one year, this error was not harmless as both sentences ran consecutively and one of the conditions of the probation was, that in the event probation was revoked, the trial court could order the execution of the sentence originally imposed. Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990).

- O.C.G.A. § 17-10-3 does not extend the option of state probation detention center sentencing to all misdemeanors; a defendant must fit into one of the narrow categories set forth in O.C.G.A. §§ 42-8-35.4 and42-8-35.5 in order to be eligible to be sentenced in that manner. Anderson v. State, 261 Ga. App. 716, 583 S.E.2d 549 (2003).

O.C.G.A. § 17-10-3(a)(1) and (a)(2) are alternative; therefore, the defendant could not lawfully be sentenced to pay a fine and to confinement under the state's jurisdiction. Williams v. State, 221 Ga. App. 291, 470 S.E.2d 922 (1996).

- Trial court lacked authority to order that the defendant, who was given a 12-month misdemeanor sentence for reckless conduct, serve the term of imprisonment in a probation detention center. Brady v. State, 246 Ga. App. 412, 541 S.E.2d 396 (2000).

- Sentence in a misdemeanor case which provided that the person convicted shall be confined at hard labor for the space of one year at the state farm is not in conformity with this section. Screen v. State, 107 Ga. 715, 33 S.E. 393 (1899); Potter v. State, 35 Ga. App. 248, 132 S.E. 783 (1926).

Sentence of a defendant to hard labor on the chain gang was irregular since the defendant was convicted of a misdemeanor only. Under this section, punishment at hard labor is not provided for such an offense. Kent v. State, 18 Ga. App. 30, 88 S.E. 913 (1916).

- O.C.G.A. § 17-10-3(a)(2) does not give Georgia courts authority to confine a misdemeanant in a probation detention center and 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).

- Imposition of the maximum misdemeanor punishment upon conviction for criminal trespass exceeded constitutional bounds against cruel and unusual punishment since the trespass involved the defendant's trimming of a neighbor's hedge. Haygood v. State, 225 Ga. App. 81, 483 S.E.2d 302 (1997).

- Sentence in a misdemeanor case which requires that the person convicted shall, upon failure to pay a given fine and costs, "be imprisoned in the common jail [of a named county] for the space of 12 months, and that during said imprisonment [he] be put to work at hard labor on the chain gang of said county," was not in conformity with this section. If it was intended by this sentence to impose a penalty of imprisonment, the term of imprisonment specified exceeds the limit fixed by law. The law does not authorize in such cases a sentence to hard labor. Screen v. State, 107 Ga. 715, 33 S.E. 393 (1899).

- Legislative intent in reducing the punishment for failure of a licensee to have a driver's license in the licensee's possession when operating a vehicle to a fine of ten dollars precluded imposition of a sentence to a consecutive 12 months' probation. Crain v. State, 197 Ga. App. 729, 399 S.E.2d 289 (1990).

Sentence Proper

Imprisonment of female misdemeanant in state farm.

- If a female, under indictment for a misdemeanor, pleads guilty, the judge may in the judge's discretion sentence her to labor and confinement in the woman's prison on the state farm. Conley v. Pope, 161 Ga. 462, 131 S.E. 168 (1925).

- Sentence of six months in jail, six months on probation, and a fine of $1,000 for permitting an unlicensed person to drive a car did not constitute cruel and unusual punishment. Means v. State, 255 Ga. 537, 340 S.E.2d 612 (1986).

Sentence imposed was authorized by statute; thus, any remarks made by the court, claimed to be improper, were of no consequence and there was nothing in the record to support the contention that the judge made improper remarks. Addo v. State, 212 Ga. App. 163, 441 S.E.2d 486 (1994).

Defendant's sentence to three consecutive twelve month terms for three simple battery convictions, with eight months to serve in confinement and the rest on probation, did not constitute cruel and unusual punishment. Dudley v. State, 242 Ga. App. 53, 527 S.E.2d 912 (2000).

In light of the defendant's failure to demonstrate an increase in punishment or alteration of the defendant's situation to the defendant's disadvantage when the defendant was sentenced to confinement in a probation detention center for misdemeanor offenses, the defendant's sentence was not improper and did not violate the ex post facto clauses of the Georgia or United States Constitutions. Yates v. State, 263 Ga. App. 29, 587 S.E.2d 180 (2003).

Defendant's sentence to ten years for false imprisonment, 12 months for sexual battery, and 12 months for simple battery, to run concurrently, provided that upon service of four years in custody, the defendant could serve the remaining six years on probation, was not void as the sentence fell within the allowable sentencing ranges of no less than one nor more than ten years for false imprisonment, and up to 12 months each for sexual battery and simple battery. Rehberger v. State, 267 Ga. App. 778, 600 S.E.2d 635 (2004).

It was not an abuse of discretion to deny the defendant's motion for a new trial, requested to facilitate the defendant's efforts to become a naturalized citizen, because the trial court considered that the defendant's sentence for giving a false name to an officer had long since been served, that six years had passed since sentencing, and that the sentence was within the statutory guidelines for misdemeanors; claims that the defendant's guilty plea was not voluntary were of no avail as the defendant failed to move to withdraw the plea or to appeal, and the times for doing so had expired. Elias v. State, 272 Ga. App. 506, 613 S.E.2d 157 (2005).

When the defendant was convicted of speeding and failure to maintain lane, defendant was properly sentenced to a fine of $650 plus court costs, 12 months of probation, 40 hours of community service, and the completion of a defensive driver course, despite the prosecutor's recommendation of fewer community service hours, because the sentence was authorized by O.C.G.A. § 17-10-3(a)(1), (d)(2), and (d)(4) as well as O.C.G.A. § 42-8-72(a)(1). Harris v. State, 272 Ga. App. 650, 613 S.E.2d 170 (2005).

As the defendant's sentence of 365 days, one day to serve and 364 on probation, did not exceed 12 months, it was a valid misdemeanor sentence. Stripling v. State, 279 Ga. App. 856, 632 S.E.2d 747 (2006).

Defendant's sentence was not excessive because the trial court orally sentenced the defendant to a combination of 100 days of confinement, 60 days of house arrest, and 12 months of probation for misdemeanor driving under the influence; an oral declaration of a sentence was not the sentence of the court and the sentence signed by the trial court properly sentenced the defendant to confinement for 12 months (to serve 100 days) and the remainder probated (60 days thereof in house arrest). Kimbrell v. State, 280 Ga. App. 867, 635 S.E.2d 237 (2006).

While a defendant provided no statutory or legal authority for a claim that the sentence for the defendant's conviction for harassing phone calls under O.C.G.A. § 16-11-39.1(a) was excessive and thus abandoned the claim under Ga. Ct. App. R. 25(c)(2), the defendant's sentence of 12 months probated, 240 hours of community service, completion of an anger management counseling program, no contact with the victim, and a $500 fine was within the range provided in O.C.G.A. § 17-10-3(a)(1). Williams v. State, 296 Ga. App. 707, 675 S.E.2d 596 (2009).

Defendant's sentence to serve 12 months for speeding in violation of O.C.G.A. § 40-6-181(b)(2) was within authorized limits; O.C.G.A. § 40-6-1(b) simply sets limits on fines that can be imposed as punishment for a first offense of speeding and the statute does not restrict the available punishment for speeding to a fine. Jones v. State, 308 Ga. App. 99, 706 S.E.2d 593 (2011).

Defendant's sentence for violating O.C.G.A. § 40-6-271 would not be set aside on the ground that the sentence was excessive and the punishment cruel and unusual because the sentence was within the limits of the law, O.C.G.A. § 17-10-3(a)(1) and (b). Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).

Defendant's challenge to the sentence imposed failed as the sentence was within the appropriate range of punishment for the misdemeanor at issue and the trial court did not abuse the court's discretion in imposing general conditions of probation, such as that the defendant violate no criminal laws, report to the defendant's probation officer, and not leave the state without permission. Oduok v. State, 347 Ga. App. 178, 817 S.E.2d 145 (2018), cert. dismissed, No. S19C0145, 2019 Ga. LEXIS 360 (Ga. 2019).

- Sentence, upon conviction of fornication, of the defendant to 12 months' confinement in a work camp of the state, without the privilege of paying a fine, is not excessive, cruel, and unjust punishment. Bowman v. State, 91 Ga. App. 52, 85 S.E.2d 66 (1954).

- State and county statutorily mandated assessments calculated based on the amount of the fine may be added to the maximum allowable fine under O.C.G.A. § 17-10-3 and no offer of proof is necessary. Williams v. State, 221 Ga. App. 291, 470 S.E.2d 922 (1996).

Review

Hearing of further evidence after verdict for punishment purposes.

- Action of a trial judge in a criminal case, after a verdict of guilty is returned, in hearing further evidence in order to determine the character of punishment to be imposed can never be made the subject matter of review in the Court of Appeals. Gaskins v. State, 12 Ga. App. 97, 76 S.E. 777 (1912); Cason v. State, 16 Ga. App. 820, 86 S.E. 644 (1914); Elzie v. State, 21 Ga. App. 501, 94 S.E. 627 (1917).

- Judgment of conviction will not be reversed and a new trial granted because of an error or irregularity in the manner of sentencing under former Code 1933, § 27-2506 (see O.C.G.A. § 17-10-3). The remedy was for the court to recall the defendant and sentence the defendant as provided by law. Sherman v. State, 142 Ga. App. 691, 237 S.E.2d 5 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Purpose.

- One of the evils sought to be remedied by this section was the placing of individuals in prisons who are not of the same caliber as felons or misdemeanants who warrant maximum periods of confinement. A second and equally important purpose of that section was to prevent our prison system from being crowded by minor offenders, thereby prohibiting effective rehabilitative treatment for either the misdemeanants or the felons. 1963-65 Op. Att'y Gen. p. 512.

- Misdemeanant must be sentenced to a term of seven months (now twelve months) in actual imprisonment before a sentence could be construed as placing such individual under state jurisdiction. This would preclude state jurisdiction when a misdemeanant is given a sentence of 12 months, to serve one month, with the balance probated. However, a sentence of 12 months, seven months to be served, with the balance probated, would be a state sentence as it fulfills the minimum requirement of seven months in confinement. 1963-65 Op. Att'y Gen. p. 512.

- Conviction controls the question of whether the specific punishment is to be computed on the basis of its being a felony or a misdemeanor sentence. A prisoner is either a misdemeanant or a felon, depending on the crime for which the prisoner was convicted. 1970 Op. Att'y Gen. No. 70-49.

- Sentence does not have a shifting quality, allowing the sentence to vacillate between misdemeanor and felony status at different times or for different purposes. 1970 Op. Att'y Gen. No. 70-49.

When the sentence itself contains a reduction of an offense from a felony to a misdemeanor, the sentence should be computed as a misdemeanor because those authorized to fix the sentence have elected to so treat it. 1970 Op. Att'y Gen. No. 70-49.

- It was evident from this section that sentence alternatives within bounds are permissible. 1948-49 Op. Att'y Gen. p. 81.

- Court may alter a misdemeanor sentence after the passage of approximately two months so as to change the sentence from a county sentence to a state sentence to be served under the jurisdiction of the Board of Offender Rehabilitation. 1965-66 Op. Att'y Gen. No. 66-53.

Any modification of a sentence after term of court in which sentence was rendered is void with the exception of sentences for misdemeanors under paragraph (a)(1) of this section 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.

- Original sentence imposed pursuant to this section, regardless of whether the sentence contained a probation provision, may not be altered after the term at which the sentence was imposed so as to include the payment of a fine. 1967 Op. Att'y Gen. No. 67-185.

- Trial court has no authority to alter a sentence at a term of court other than the term in which the sentence was imposed, except in those instances in which the General Assembly has expressly provided for such modification. 1967 Op. Att'y Gen. No. 67-185.

Trial court cannot correct an erroneous sentence. 1967 Op. Att'y Gen. No. 67-185.

Court may impose a sentence of a certain number of days or a term of months plus an odd number of days under this section. 1963-65 Op. Att'y Gen. p. 512.

Misdemeanor prisoners confined in county installations are under the jurisdiction of the county and not the State Board of Corrections (now Board of Offender Rehabilitation). 1970 Op. Att'y Gen. No. U70-134.

- This section can be fairly interpreted to mean that for each misdemeanor of which a person is convicted, if the misdemeanor's sentence is greater than six months and no more than 12 months, then the misdemeanor's can be placed under the jurisdiction of the Board of Corrections (now Board of Offender Rehabilitation). 1971 Op. Att'y Gen. No. 71-95.

- If a fine is made part of a misdemeanor sentence, regardless of the length of incarceration prescribed by the sentence, the prisoner must serve under county jurisdiction. 1965-66 Op. Att'y Gen. No. 65-66.

- If a general sentence is ordered for two or more misdemeanor counts, then the Board of Corrections (now Board of Offender Rehabilitation) has no way of knowing how many months of the general sentence are attributable to any specific misdemeanor. Any action the board would take under such a circumstance would be but speculation. Since any ambiguity in a sentence has to be interpreted in favor of the prisoner, the prisoner could not be placed under the jurisdiction of the Board of Corrections (now Board of Offender Rehabilitation) on the basis of speculation as to the composition of the prisoner's general sentence. 1971 Op. Att'y Gen. No. 71-95.

- As a general rule, the General Assembly has designated the Board of Offender Rehabilitation as the sole agency for the reception and assignment of all convicted misdemeanants and felons. Notable exceptions to this general provision concern individuals convicted of misdemeanors who, under certain conditions, must be placed in a county institution and, under other conditions, may be placed in such facilities in the discretion of the trial court. The final notable exception provides that the Division for Children and Youth (now Department of Offender Rehabilitation) is designated the exclusive state agency for the acceptance and incarceration of all misdemeanants and felons under the age of 17 years; provided, however, those felons convicted of a capital felony shall only be sentenced into the custody of the Department of Offender Rehabilitation. 1972 Op. Att'y Gen. No. 72-3.

- All felons and misdemeanants, other than those misdemeanants committed directly to a county correctional institution, must be committed directly and exclusively to the State Board of Corrections (now Board of Offender Rehabilitation). Only the commissioner of offender rehabilitation is authorized to prescribe the place of confinement. So much of the language of a sentence committing an inmate to a term of penal servitude in the state prison system as purports to commit the inmate to Central State Hospital is surplusage and should not be relied upon by the officials of the hospital or the Board of Corrections (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.

- One convicted of a misdemeanor may be sentenced to any authorized punishments, but any one punishment which exceeds the amount or time authorized is illegal with respect to such excess. 1948-49 Op. Att'y Gen. p. 81.

- State Board of Pardons and Paroles is not obligated to consider parole for those misdemeanor inmates sentenced under O.C.G.A. § 17-10-3(a)(1) to serve their confinement as county inmates, although the board may have an obligation to articulate some reason for refusing consideration of these individuals. 1984 Op. Att'y Gen. No. 84-25.

- Those individuals who are 18, 19, or 20 years of age may be confined in a county facility under O.C.G.A. § 17-10-3(a)(1) and (e)(3) even after their first adjudication of guilt. 1984 Op. Att'y Gen. No. U84-11.

- Those individuals who have been adjudicated guilty of a traffic misdemeanor for the first time, and who were 16 or 17 years old at the time the offense was committed, if sentenced to a term of confinement, must be confined under the jurisdiction of the Board of Offender Rehabilitation (now Department of Corrections), but if the individuals are sentenced to serve time upon a second or any succeeding adjudication of guilt, there is no requirement that confinement be under the jurisdiction of the Department of Offender Rehabilitation (now Department of Corrections), and in that instance, the sentence could be served in the county correctional institution, the county jail, or such other place as may be provided for the confinement of county inmates. 1984 Op. Att'y Gen. No. U84-11.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 706 et seq., 729 et seq. 21A Am. Jur. 2d, Criminal Law, §§ 843 et seq., 851 et seq.

- Habeas corpus in case of sentence which is excessive because of imposing both fine and imprisonment, 49 A.L.R. 494.

Power of court to impose sentence providing for intermittent incarceration, 39 A.L.R.2d 985.

Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.

Sentencing: permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine, 35 A.L.R.4th 192.