2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-29. Presentence Investigations; Supervision of Probationers; Maintenance of Records Relating to Probationers

1. It shall be the duty of each officer to investigate all cases referred to him or her by the court and to make findings and report thereon in writing to the court with a recommendation. The superior court may require, before imposition of sentence, a presentence investigation and written report in each felony case in which the defendant has entered a plea of guilty or nolo contendere or has been convicted.
2. An officer shall cause to be delivered to each person placed on probation under his or her supervision a copy of the terms of probation and any change or modification thereof and shall cause the person to be instructed regarding the same. An officer shall keep informed concerning the conduct, habits, associates, employment, recreation, and whereabouts of the probationer or parolee by visits, by requiring reports, or in other ways. An officer shall use all practicable and proper methods to aid and encourage persons on probation or parole and to bring about improvements in their conduct and condition.

(Ga. L. 1956, p. 27, § 9; Ga. L. 1972, p. 604, § 8; Ga. L. 2015, p. 422, § 4-1/HB 310.)

The 2015 amendment, effective July 1, 2015, designated the previously existing provisions as subsections (a) and (b); inserted "or her" in the first sentence of subsections (a) and (b); in subsection (a), in the first sentence, substituted "each officer" for "probation supervisor", deleted "his" preceding "findings" in the middle, and substituted "a recommendation" for "his recommendation" near the end; in subsection (b), substituted "An officer" for "He" throughout, substituted "An officer" for "The probation supervisor" at the beginning of the first sentence and deleted "certified" preceding "copy", inserted "or parolee" in the second sentence, deleted the former third sentence, which read: "He shall make such reports in writing or otherwise as the court may require.", inserted "or parole" in the fourth sentence, and deleted the last sentence, which read: "He shall keep records on each probationer referred to him." See Editor's notes for applicability.

- Applicability of this state's correction laws to probationers' found in other states, T. 42, C. 11.

- Pursuant to Code Section 28-9-5, in 2015, "the" was deleted following "It shall be the duty of" at the beginning of subsection (a).

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

- For article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

ANALYSIS

• General Consideration
• Presentence Investigation and Report
• Probationers' Certified Copy of Sentence

General Consideration

Pre-sentence report not required.

- Under O.C.G.A. § 42-8-29, the trial court was not required, but was permitted, to order the preparation of a pre-sentence investigation report prior to imposing a sentence. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Defendant's claim of not knowingly and intelligently waiving the right to a pre-sentence investigation report conducted by the county probation department was without merit because under O.C.G.A. § 42-8-29 the defendant did not have such a right. Walker v. State, 296 Ga. App. 763, 675 S.E.2d 496 (2009), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).

Cited in Van Voltenburg v. State, 138 Ga. App. 628, 227 S.E.2d 451 (1976); Palmer v. State, 144 Ga. App. 480, 241 S.E.2d 597 (1978); Martin v. State, 145 Ga. App. 880, 245 S.E.2d 70 (1978); Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978); Bennett v. State, 164 Ga. App. 239, 296 S.E.2d 787 (1982); Jones v. State, 165 Ga. App. 180, 300 S.E.2d 534 (1983); Thompson v. State, 276 Ga. 701, 583 S.E.2d 14 (2003).

Presentence Investigation and Report

1. Use

§ 42-8-34 in fixing sentence. - Presentence investigation report of former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) cannot be used in aggravation in fixing the length of the sentence. Mills v. State, 244 Ga. 186, 259 S.E.2d 445 (1979).

Probation report cannot be offered in aggravation of sentence, regardless of whether it lists prior offenses. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000).

Information in the report filed under former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) cannot be regarded as "evidence" either in aggravation or in mitigation. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

Trial court is authorized under O.C.G.A. §§ 42-8-29 and42-8-34 to consider investigative reports prepared by probation officers for the purpose of deciding whether to suspend or probate all or part of the defendant's sentence, but the court cannot use the reports to determine the length of the sentence. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908 (1983).

§ 17-10-2 in fixing sentence. - Presentence report under § 17-10-2 may be used as evidence in aggravation, thereby affecting the length of sentence, only if the report had been made known to the defendant prior to the defendant's trial. However, under former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) a presentence report was also authorized before pronouncing sentence for the purpose of deciding whether to suspend or probate all or part of the sentence to be imposed in a case. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

If the presentence report was used to determine length of sentence, the procedure set forth in § 17-10-2 must be followed; but if the report was used only to determine whether to probate or suspend all or a portion of the sentence, the report could be used. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

Probation report cannot be offered in aggravation of sentence, regardless of whether it lists prior offenses. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000).

- Although use of a previously undisclosed probation report to aid the trial judge in determining whether to suspend or probate a sentence does not invalidate the sentence which is imposed, it cannot be used in fixing the length of the sentence. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000).

2. Revealing Contents to Counsel

Judge's discretion to reveal content of report to counsel.

- Since this section does not require the content of a presentence probation report to be shared with counsel, it is in the sound discretion of the trial judge whether to reveal the content of the report to counsel for the accused and for the state. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Watts v. State, 141 Ga. App. 127, 232 S.E.2d 590, cert. denied, 434 U.S. 925, 98 S. Ct. 405, 54 L. Ed. 2d 283 (1977); Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772 (1979), cert. denied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 2d 263 (1980).

- When a presentence report contains any matter adverse to the defendant and likely to influence decision to suspend or probate the sentence, it should be revealed to defense counsel by the trial judge in advance of the presentence hearing to give the accused an opportunity for explanation or rebuttal. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772 (1979), cert. denied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 2d 263 (1980).

3. Presentence and Post-sentence

Utility of labeling report as post-sentence or presentence.

- Labeling an investigative report of the probation department as a "post-sentence" report, as distinguished from a "presentence" report, will not change the report's legal effect when the content, purpose, and function of the report are the same. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

Trial court may not do indirectly - with a "post-sentence"' report, that which Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) proscribes directly - using a "presentence" report to determine length of sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

- Trial court erred in imposing the maximum sentence with the intent of utilizing a later report to determine the final length of sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

- There is no discernible difference between a "presentence" and "post-sentence" report, except as to time of submission, and this is of no import when each is used for the same purpose. Thus, it is permissible to use a "presentence" or "post-sentence" report for the purpose of deciding whether to suspend or probate all or some part of a sentence. For the same reason it is impermissible to use a "presentence" or "post-sentence" report in fixing the length of the sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

- Since the trial court intended to use the "post-sentence" report to determine the final length of the sentence, it was implicit that the trial court imposed the original sentence with the intent of determining a final length of sentence only after viewing the "post-sentence" investigative report. In such instance, Munford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) and Mills v. State, 244 Ga. 186, 259 S.E.2d 445 (1979) proscribed the use of the reports to determine "length" of sentence without compliance with the provisions of former Code 1933, § 27-2503 (see now O.C.G.A. § 17-10-2). Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

Probationers' Certified Copy of Sentence

Purpose of giving probationers certified copy of sentence.

- Purpose of the provision of this section which requires the circuit probation officers to give the probationers a certified copy of the sentence is to ensure that each probationer is familiar with the terms of the probationer's sentence. Poss v. State, 114 Ga. App. 609, 152 S.E.2d 695 (1966).

- If the defendant is admittedly familiar with the terms of the defendant's sentence, the failure of the circuit probation officer to furnish the defendant with a certified copy of the defendant's sentence as required by this section does not violate the terms of the sentence. Poss v. State, 114 Ga. App. 609, 152 S.E.2d 695 (1966).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 488, 526-536.

- 24 C.J.S., Criminal Law, §§ 12144-2161.

- Right of convicted defendant or prosecution to receive updated resentence report at sentencing proceedings, 22 A.L.R.5th 660.