2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-35. Terms and Conditions of Probation; Supervision

1. The court shall determine the terms and conditions of probation and may provide that the probationer shall:
   1. Avoid injurious and vicious habits;
   2. Avoid persons or places of disreputable or harmful character;
   3. Report to the officer as directed;
   4. Permit the officer to visit the probationer at the probationer's home or elsewhere;
   5. Work faithfully at suitable employment insofar as may be possible;
   6. Remain within a specified location; provided, however, that the court shall not banish a probationer to any area within this state:
      1. That does not consist of at least one entire judicial circuit as described by Code Section 15-6-1; or
      2. In which any service or program in which the probationer must participate as a condition of probation is not available;
   7. Make reparation or restitution to any aggrieved person for the damage or loss caused by the probationer's offense, in an amount to be determined by the court. Unless otherwise provided by law, no reparation or restitution to any aggrieved person for the damage or loss caused by the probationer's offense shall be made if the amount is in dispute unless the same has been adjudicated;
   8. Make reparation or restitution as reimbursement to a municipality or county for the payment for medical care furnished the person while incarcerated pursuant to the provisions of Article 3 of Chapter 4 of this title. No reparation or restitution to a local governmental unit for the provision of medical care shall be made if the amount is in dispute unless the same has been adjudicated;
   9. Repay the costs incurred by any municipality or county for wrongful actions by an inmate covered under the provisions of paragraph (1) of subsection (a) of Code Section 42-4-71;
   10. Support the probationer's legal dependents to the best of the probationer's ability;
   11. Violate no local, state, or federal laws and be of general good behavior;
   12. If permitted to move or travel to another state, agree to waive extradition from any jurisdiction where the probationer may be found and not contest any effort by any jurisdiction to return the probationer to this state;
   13. Submit to evaluations and testing relating to rehabilitation and participate in and successfully complete rehabilitative programming as directed by DCS;
   14. Wear a device capable of tracking the location of the probationer by means including electronic surveillance or global positioning satellite systems. DCS shall assess and collect fees from the probationer for such monitoring at levels set by regulation of the Board of Community Supervision;
   15. Complete a residential or nonresidential program for substance abuse or mental health treatment as indicated by a risk and needs assessment;
   16. Agree to the imposition of graduated sanctions when, in the discretion of the officer, the probationer's behavior warrants a graduated sanction; and
   17. Pay for the cost of drug screening. DCS shall assess and collect fees from the probationer for such screening at levels set by regulation of the Board of Community Supervision.
2. In determining the terms and conditions of probation for a probationer who has been convicted of a criminal offense against a victim who is a minor or dangerous sexual offense as those terms are defined in Code Section 42-1-12, the court may provide that the probationer shall be:
   1. Prohibited from entering or remaining present at a victim's school, place of employment, place of residence, or other specified place at times when a victim is present or from loitering in areas where minors congregate, child care facilities, churches, or schools as those terms are defined in Code Section 42-1-12;
   2. Required, either in person or through remote monitoring, to allow viewing and recording of the probationer's incoming and outgoing e-mail, history of websites visited and content accessed, and other Internet based communication;
   3. Required to have periodic unannounced inspections of the contents of the probationer's computer or any other device with Internet access, including the retrieval and copying of all data from the computer or device and any internal or external storage or portable media and the removal of such information, computer, device, or medium; and
   4. Prohibited from seeking election to a local board of education.
3. The supervision provided for under subsection (b) of this Code section shall be conducted by an officer, law enforcement officer, or computer information technology specialist working under the supervision of an officer or law enforcement agency.

(Ga. L. 1956, p. 27, § 10; Ga. L. 1958, p. 15, § 11A; Ga. L. 1965, p. 413, § 3; Ga. L. 1992, p. 2125, § 4; Ga. L. 1992, p. 2942, § 2; Ga. L. 2004, p. 761, § 3; Ga. L. 2004, p. 775, § 4; Ga. L. 2006, p. 379, § 25/HB 1059; Ga. L. 2006, p. 425, § 1/HB 692; Ga. L. 2008, p. 810, § 5/SB 474; Ga. L. 2012, p. 899, § 7-8/HB 1176; Ga. L. 2013, p. 222, § 18/HB 349; Ga. L. 2015, p. 422, § 4-1/HB 310.)

The 2012 amendment, effective July 1, 2012, in subsection (a), deleted "and" at the end of paragraph (a)(12), substituted a semicolon for a period at the end of paragraph (a)(13), and added paragraphs (a)(14) through (a)(16); and, in subsection (b), deleted former paragraph (b)(2), which read: "Required to wear a device capable of tracking the location of the probationer by means including electronic surveillance or global positioning systems. The department shall assess and collect fees from the probationer for such monitoring at levels set by regulation by the department;", redesignated former paragraphs (b)(3) through (b)(5) as present paragraphs (b)(2) through (b)(4), respectively, and inserted a comma following "Internet access" in paragraph (b)(3). See Editor's notes for applicability.

The 2013 amendment, effective July 1, 2013, deleted "and" at the end of paragraph (a)(15); substituted "; and" for a period at the end of paragraph (a)(16); and added paragraph (a)(17). See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, substituted "officer" for "probation supervisor" in paragraphs (a)(3) and (a)(16); substituted "officer" for "supervisor" in paragraph (a)(4); substituted "this state" for "the state" in the introductory paragraph of (a)(6); substituted "DCS" for "the department" and "The department" in paragraphs (a)(13) and (a)(14); substituted "of the Board of Community Supervision" for "by the department" in paragraph (a)(14); in paragraph (a)(17), in the second sentence, substituted "DCS" for "The Department of Corrections" and substituted "Board of Community Supervision" for "Department of Corrections"; and substituted "an officer" for "a probation officer" twice in subsection (c). See Editor's notes for applicability.

- Prohibition against possession of firearms by convicted felons, § 16-11-131.

Payment of fine as condition to probation for felony conviction, § 17-10-8.

- Pursuant to Code Section 28-9-5, in 1992, paragraph (8), as added by Ga. L. 1992, p. 2942, was redesignated as paragraph (b)(9) and the following paragraphs were redesignated accordingly, and "42-4-71" was substituted for "42-4-51" in present paragraph (b)(9).

- Ga. L. 2004, p. 761, § 1, not codified by the General Assembly, provides that: "The General Assembly finds that the safety of the public is a paramount concern and that prison and jail overcrowding and the high cost of incarceration demand a cost effective and innovative approach to protecting communities from dangerous offenders while at the same time providing alternatives to, or bridges to and from incarceration. Under appropriate conditions and limitations, electronic monitoring devices provide the criminal justice system with a tool that should be considered under proper circumstances. Electronic monitoring devices offer effective means to track individuals and may reduce criminal recidivism as well as provide the state with monetary savings since the cost of an electronic monitoring device is far less than the cost of incarcerating an individual and an individual may be able to pay for the device. The criminal penalties provided by this Act are designed to encourage the use of electronic monitoring devices while at the same time discourage interference with these devices."

Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides, in part, 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. 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 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). 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 note, "Limitations Upon Trial Court Discretion in Imposing Conditions of Probation," see 8 Ga. L. Rev. 466 (1974). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 310 (1992). 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).

ANALYSIS

• General Consideration
• Probation Terms and Conditions
• Revocation of Probation

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, §§ 27-2702 and 27-2705 are included in the annotations for this Code section.

- 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).

- Trial court erred in holding that the imposition of electronic monitoring on misdemeanor defendants supervised by private probation servicing companies was prohibited. Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

Cited in Reynolds v. State, 101 Ga. App. 715, 115 S.E.2d 214 (1960); O'Quinn v. State, 121 Ga. App. 231, 173 S.E.2d 409 (1970); Raines v. State, 130 Ga. App. 1, 202 S.E.2d 253 (1973); State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974); P.R. v. State, 133 Ga. App. 346, 210 S.E.2d 839 (1974); Gilbert v. State, 137 Ga. App. 754, 225 S.E.2d 86 (1976); Bennett v. State, 141 Ga. App. 795, 234 S.E.2d 327 (1977); Eubanks v. State, 144 Ga. App. 152, 241 S.E.2d 6 (1977); Smith v. State, 148 Ga. App. 634, 252 S.E.2d 62 (1979); Allen v. State, 150 Ga. App. 109, 257 S.E.2d 5 (1979); Stephens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980); Cannon v. State, 246 Ga. 754, 272 S.E.2d 709 (1980); Johnson v. State, 162 Ga. App. 226, 291 S.E.2d 94 (1982); Malcom v. State, 162 Ga. App. 587, 291 S.E.2d 756 (1982); In re J.C., 163 Ga. App. 822, 296 S.E.2d 117 (1982); Shaw v. State, 164 Ga. App. 208, 296 S.E.2d 765 (1982); Smith v. State, 164 Ga. App. 384, 297 S.E.2d 738 (1982); Davis v. State, 172 Ga. App. 787, 324 S.E.2d 767 (1984); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Wilson v. State, 188 Ga. App. 731, 374 S.E.2d 345 (1988); Burke v. State, 201 Ga. App. 50, 410 S.E.2d 164 (1991); Anderson v. State, 226 Ga. App. 286, 486 S.E.2d 410 (1997); Staley v. State, 233 Ga. App. 597, 505 S.E.2d 491 (1998); Sanchez v. State, 234 Ga. App. 809, 508 S.E.2d 185 (1998).

Probation Terms and Conditions

1. In General

- This section is not exclusive in its provisions, but places upon the court authority to set terms of probation and thereafter lists certain conditions which the court may impose if the court sees fit. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959); Gay v. State, 101 Ga. App. 225, 113 S.E.2d 223 (1960); Falkenhainer v. State, 122 Ga. App. 478, 177 S.E.2d 380 (1970); Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469 (1972); Geiger v. State, 140 Ga. App. 800, 232 S.E.2d 109 (1976).

Trial judge is not limited to imposition of only those restrictions enumerated in this section. Clackler v. State, 130 Ga. App. 738, 204 S.E.2d 472 (1974); Giddens v. State, 156 Ga. App. 258, 274 S.E.2d 595 (1980); Parkerson v. State, 156 Ga. App. 440, 274 S.E.2d 799 (1980).

This section permits the court to determine the terms and conditions of probation, and lists ten conditions of probation. Parkerson v. State, 156 Ga. App. 440, 274 S.E.2d 799 (1980).

Absent inclusion of a record and an express authority to the contrary, the trial judge was authorized to impose attendance at the Chatham County DUI court treatment program as a condition of the defendant's probation; further, imposition was not a denial of the defendant's equal protection rights in that nonresidents were not required to attend, especially and in light of the fact that the defendant failed to show any evidence to show the genesis, nature, or content of the program of which the defendant complained. Kellam v. State, 271 Ga. App. 125, 608 S.E.2d 729 (2004).

While the Court of Appeals agreed with the defendant that the cited probation conditions were peculiar to a DUI conviction, because the defendant failed to cite any authority showing that a court abused the court's discretion in imposing the condition's upon a probated sentence for serious injury by vehicle, when DUI was the predicate offense, and the defendant failed to show that any such condition was unreasonable or failed to serve the main goals of probation, the appeals court saw no reason why the cited conditions could not be imposed upon a probated sentence for serious injury by vehicle. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).

In overruling the defendant's objection to the probation imposed, the trial court erroneously deferred to the probation department in stating that any invalid conditions could be removed by the probation department; the appeals court disapproved of such a practice as O.C.G.A. § 42-8-35(a) provided that only the court was to determine the terms and conditions of probation. Grovenstein v. State, 282 Ga. App. 109, 637 S.E.2d 821 (2006).

Special probation conditions, requiring that the defendant complete a driving under the influence risk reduction course under O.C.G.A. § 40-6-391(c), perform 40 hours of community service under O.C.G.A. § 40-6-391(c), and pay a $25 photograph fee under O.C.G.A. § 40-6-391(j)(1), (2), were not an abuse of discretion despite the fact that the conditions of probation were not imposed upon the defendant's driving under the influence conviction, for which probation was not imposed, but were instead imposed on the defendant's sentence of probation on the related convictions; while the defendant claimed that the conditions were peculiar to a driving under the influence conviction, the conditions were reasonably related to the nature of the offenses and the rehabilitative goals of probation pursuant to O.C.G.A. § 42-8-35. Johnson v. State, 282 Ga. App. 258, 638 S.E.2d 406 (2006).

- Condition requiring probationer to submit to polygraph tests does not violate the defendants' Fifth Amendment rights, and the condition may be imposed, in the discretion of the trial judge, with no more than a general finding of the court that it is reasonably necessary to accomplish the purpose of probation. Mann v. State, 154 Ga. App. 677, 269 S.E.2d 863 (1980).

- Sentence of 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 defendant's house under intensive supervision, was authorized and did 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).

- Imposition as a condition of probation that the defendant who was convicted of aggravated child molestation have no direct or indirect contact with the defendant's seven-year-old daughter until she reached the age of majority was within the discretion of the court, and was not a violation of the defendant's constitutional rights. Tuttle v. State, 215 Ga. App. 396, 450 S.E.2d 863 (1994).

Condition of probation that defendant live with parents during course of probated sentences implicitly imposes restriction on defendant's parents, i.e., that the parents maintain a domicile for the defendant, and is unenforceable. Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981).

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).

- List in O.C.G.A. § 42-8-35 of conditions which may be imposed is not exclusive and the court had authority to impose the requirement that the defendant wear a fluorescent pink plastic bracelet imprinted with the words "D.U.I. CONVICT." Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793 (1993).

- Condition requiring that the probationer make child support payments directly to his ex-wife was not unreasonable and served a legitimate purpose. Darby v. State, 230 Ga. App. 32, 495 S.E.2d 146 (1998).

- Probation condition stating that "Defendant will submit a schedule of weekly activities to the probation officer and will be subject to curfews at the officer's discretion" was not improper. Tyler v. State, 279 Ga. App. 809, 632 S.E.2d 716 (2006), cert. denied, No. S06C1818, 2006 Ga. LEXIS 810 (Ga. 2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

- Court would reverse a sentence which required the defendant, as a condition of probation, to wear a placard stating "BEWARE HIGH CRIME AREA" for a certain number of hours while walking through the area where the defendant committed the defendant's offense since the sign itself indicated that the defendant would be patrolling in a high crime area and, therefore, this would result in the defendant being placed in danger. Williams v. State, 234 Ga. App. 37, 505 S.E.2d 816 (1998).

- In the absence of express statutory authority recognizing continuous and uninterrupted incarceration in a jail or penitentiary as a viable condition of probation, the imposition of any term of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation is unauthorized by law. Pitts v. State, 206 Ga. App. 635, 426 S.E.2d 257 (1992).

- Trial court was authorized to conclude that the defendant's conduct of secretly videotaping the defendant's stepdaughter while she was in the nude was by its nature a sexual offense against a minor or criminal sexual conduct toward a minor. The court, therefore, did not err in exercising the court's broad discretion to impose upon the defendant special conditions of probation for sex offenders. Price v. State, 320 Ga. App. 85, 738 S.E.2d 289 (2013).

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).

- Trial court erred by finding that electronic monitoring fees imposed by the sentencing court and collected by a private probation service for monitoring services rendered during a probationer's original term of sentence were prohibited because only when electronic monitoring was unlawfully imposed by the court on a misdemeanor probationer after the expiration of the probationer's original sentence would such fees potentially be recoverable. Sentinel Offender Services, LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

2. Avoid Injurious and Vicious Habits

Prohibition against alcohol consumption.

- Prohibition against consumption of alcohol as condition of probation is authorized by paragraph (1) of this section. An alcoholic is not exempt from such a condition. Mock v. State, 156 Ga. App. 763, 275 S.E.2d 393 (1980).

- Condition that defendant not engage in practice of law for a period of one year was within the sound discretion of the court in probating the sentence, and was authorized under former Code 1933, § 27-2702 and Ga. L. 1965, p. 413, § 3 (see now O.C.G.A. §§ 42-8-34 and42-8-35). Yarbrough v. State, 119 Ga. App. 46, 166 S.E.2d 35 (1969).

3. Confinement to Specified Location

Diversion center.

- Probationer is not subject to prosecution for the felony offense of escape, after the probationer fails to return to a diversion center from which the probationer is given permission to leave. Chandler v. State, 257 Ga. 775, 364 S.E.2d 273 (1988).

- Banishment of one convicted of crime from county or counties may be a reasonable condition of probation. Parkerson v. State, 156 Ga. App. 440, 274 S.E.2d 799 (1980).

No section or other authority grants jurisdiction to trial court to banish a person other than the convicted criminal as a condition of the criminal's probation. Parkerson v. State, 156 Ga. App. 440, 274 S.E.2d 799 (1980).

Habeas court properly denied the defendant's petition for habeas relief based on the contention that a condition of probation banishing the defendant from every county in the State of Georgia but one was unconstitutional as the defendant failed to show that the probation condition to remain in Toombs County only was unreasonable or otherwise failed to bear a logical relationship to the rehabilitative scheme of the sentence pronounced. The Supreme Court of Georgia noted that the banishment was justified to protect the victim, the defendant's ex-spouse, from the defendant's propensity for violence toward the victim. Terry v. Hamrick, 284 Ga. 24, 663 S.E.2d 256 (2008), cert. denied, 129 S. Ct. 510, 172 L. Ed. 2d 375 (2008).

Trial court did not err in modifying the probationary portion of the defendant's sentence by imposing a condition banishing the defendant from the subdivision in which the defendant committed burglaries because the trial court's original sentencing order included as a special condition of probation that the defendant was to avoid all contact with the burglary victims, each of whom lived in the subdivision at issue, and to the extent that the modified sentence simply clarified the scope of that special condition, it was contemplated within the terms of the original sentence pursuant to O.C.G.A. § 42-8-34(g); the banishment provision was reasonable, narrow in scope, and included only the subdivision in which the victims resided, and in the absence of a hearing transcript or any record evidence to the contrary, the court of appeals had to presume that the trial court properly considered the evidence before the court. Tyson v. State, 301 Ga. App. 295, 687 S.E.2d 284 (2009).

Although the legislature has expressly provided that banishment is a valid term and condition of probation, the trial court cannot banish a probationer to any area within the state that does not consist of at least one entire judicial circuit. Because Toombs County was part of the five-county Middle Judicial Circuit, which also included Emanuel, Jefferson, Washington, and Candler Counties, the trial court was not statutorily authorized to banish the defendant from the entire state, except for Toombs County. Regent v. State, 333 Ga. App. 350, 774 S.E.2d 213 (2015), vacated on other grounds, 339 Ga. App. 885, 795 S.E.2d 190 (Ga. Ct. App. 2016).

- When the trial court imposes 20 year sentence with ten years thereof to be probated, conditional upon banishment of the defendant from the judicial circuit, threats by the defendant not to abide by probational banishment authorize the judge to impose a sentence of 20 years. Garland v. State, 160 Ga. App. 97, 286 S.E.2d 330 (1981).

4. Reparation or Restitution

Constitutionality of restitution condition.

- Sentence on a conviction for a fraudulent disposition of crops subject to a landlord's lien under former Code 1933, § 61-9903 (see now O.C.G.A. § 44-14-348), which provided for probation in lieu of a prison sentence on the condition that the landlord was repaid, was a valid and legal sentence and was not violative of Ga. Const. 1945, Art. I, Sec. I, Para. XXI (see now Ga. Const. 1983, Art. I, Sec. I, Para. XXIII). Davis v. State, 53 Ga. App. 325, 185 S.E. 400 (1936) (decided under former law).

Probation may be conditioned upon payment of expenses in accordance with the conditions of probation. Giddens v. State, 156 Ga. App. 258, 274 S.E.2d 595 (1980), cert denied, 450 U.S. 1026, 101 S. Ct. 1733, 68 L. Ed. 2d 220 (1981).

- Court may probate sentence to permit convicted person to serve sentence outside confines of place of detention "on such conditions as it may see fit," and this vests a broad power in the trial court, and restitution to an injured person or the person's property cannot be said to be a condition in violation of that power. Henry v. State, 77 Ga. App. 735, 49 S.E.2d 681 (1948).

- Prior notice and an opportunity to be heard are prerequisite where restitution is ordered by court to be paid out of a probationer's weekly salary and the penalty for failure to pay is imprisonment. Morgan v. Wofford, 472 F.2d 822 (5th Cir. 1973).

Effect of fixing amount of restitution required to be paid under paragraph (a)(7) of this section, without notice to the probationer and without any opportunity for probationer to question or appeal amount, especially when criminal sanctions may be involved, violates the Fourteenth Amendment, since due process requires notice and an opportunity for a hearing appropriate to the nature of the case when the state seeks to deprive a person of property or liberty. Morgan v. Wofford, 472 F.2d 822 (5th Cir. 1973).

- Recourse for defendant who does not agree to amount of restitution ordered by trial court is to contest the issue at the time the condition is imposed. Johnson v. State, 156 Ga. App. 511, 274 S.E.2d 669 (1980); Johnson v. State, 157 Ga. App. 155, 276 S.E.2d 667 (1981).

Appellant's plea of guilty to accusation and execution of written acknowledgment of conditions of probation did not constitute an agreement to the value of stolen property for purposes of restitution. Johnson v. State, 156 Ga. App. 511, 274 S.E.2d 669 (1980).

When the appellant failed to dispute or contest amount of restitution ordered by the trial court, restitution was properly imposed without an adjudication. Cobb v. State, 162 Ga. App. 314, 291 S.E.2d 390 (1982); Patrick v. State, 184 Ga. App. 260, 361 S.E.2d 251 (1987).

Defendant is only entitled to adjudication of the restitutionary amount when that amount is in dispute. Johnston v. State, 165 Ga. App. 792, 302 S.E.2d 708 (1983); Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).

Since the defendant failed to dispute the amount of restitution ordered as a condition of probation for theft by taking, and the state failed to prove the amount at trial is of no consequence, because the state was only required to prove that the defendant stole in excess of $200.00 (now $500.00) under O.C.G.A. § 16-8-12(a)(1). Johnston v. State, 165 Ga. App. 792, 302 S.E.2d 708 (1983).

When the amount of medical expenses of a juvenile assault victim is undisputed based on the uncontradicted testimony of the victim in the disposition hearing, there is no error in ordering restitution. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983).

When the defendant voiced no objection in the trial court to the interest charged as part of the amount of restitution, the defendant may not complain of it on appeal. Corbin v. State, 202 Ga. App. 464, 415 S.E.2d 14 (1992).

- While the defendant may not be sentenced to make restitution, the court may make restitution a condition of probation. Biddy v. State, 138 Ga. App. 4, 225 S.E.2d 448 (1976).

- Elements of O.C.G.A. T. 17, Ch. 14 may be used to discern nature of order of restitution made under O.C.G.A. § 42-8-35. This can be done since under § 42-8-35 "restitution" was an authorized condition of probation and the enactment of T. 17, Ch. 14 "is merely a more detailed enactment regarding restitution." Newton v. Fred Haley Poultry Farm, 15 Bankr. 708 (Bankr. N.D. Ga. 1981).

- Restitution of damages to other persons involved in an automobile accident may not be imposed as a condition for restoration of a driver's license in such cases when the amount is in dispute, unless the issue has been adjudicated because a party may be guilty of violating the traffic laws and be found not liable in a civil suit for damages. Payne v. State, 138 Ga. App. 358, 226 S.E.2d 152 (1976).

- Trial court is empowered to stipulate as a condition of probation that restitution shall be made to the aggrieved party despite the defendant having scheduled the obligation owing the creditor in bankruptcy proceedings. Marshall v. State, 127 Ga. App. 805, 195 S.E.2d 469 (1972).

- When there was no accusation or evidence relating to a particular theft, the trial court cannot order restitution for that theft as a condition of probation even if the court was aware of an untried charge relating to that theft. Robinson v. State, 169 Ga. App. 763, 315 S.E.2d 277 (1984).

- Trial court may, as a condition of probation, require repayment of the salary received by a county officer while the officer was suspended. LaPann v. State, 167 Ga. App. 288, 306 S.E.2d 373 (1983).

- Georgia Indigent Defense Act, in replacing former O.C.G.A. § 17-12-10(c), did not preclude a trial court from ordering restitution of attorney fees as part of the court's general power to impose reasonable conditions of probation under O.C.G.A. § 42-8-35; thus, a defendant was properly ordered to reimburse the costs of the defendant's legal representation, and that aspect of the defendant's sentence was not a nullity. State v. Pless, 282 Ga. 58, 646 S.E.2d 202 (2007).

- See Lee v. State, 166 Ga. App. 485, 304 S.E.2d 446 (1983).

Revocation of Probation

1. In General

- Sentences for criminal offenses should be certain, definite, and free from ambiguity, and, when the contrary is the case, the benefit of the doubt should be given to the accused. Hence, the trial court erred in revoking a purported probation sentence since construed as a whole, the sentence was an alternative one and the defendant was to be discharged upon payment of fines and costs. Favors v. State, 95 Ga. App. 318, 97 S.E.2d 613 (1957).

- Service of sentence on probation is conferred as privilege and cannot be demanded as a matter of right, but this does not mean that a defendant's liberty is something that can be the subject matter of whim or fancy of the trial judge. Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951) (decided under former Code 1933, §§ 27-2702 and 27-2705 prior to revision by Ga. L. 1956, p. 27, §§ 1, 21).

2. Procedural Requirements

Authority of judge to suspend or probate sentence.

- Judge imposing a sentence is granted power to suspend or probate the sentence under such rules and regulations as the judge thinks proper. Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951).

Judge has the right and authority to revoke the suspension or probation, after notice and a hearing, when the defendant violates any of the rules and regulations prescribed by the court. Simmons v. State, 96 Ga. App. 718, 101 S.E.2d 111 (1957) (decided under former Code 1933, §§ 27-2702 and 27-2705, prior to revision by Ga. L. 1956, p. 27, §§ 1, 21).

Notice or hearing required for sentence revocation. Balkcom v. Gunn, 206 Ga. 167, 56 S.E.2d 482 (1949) (decided under former Code 1933, T. 27, including §§ 27-2702 and 27-2705, prior to revision by Ga. L. 1956, p. 27, §§ 1, 21).

- Notice must be sufficient to inform the defendant of the manner in which the defendant has violated the defendant's parole and give the defendant an opportunity to defend. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

- While the trial court has a wide discretion in revoking a probated sentence, and while only slight evidence will support a judgment of revocation, some evidence that the defendant violated the terms of the defendant's probated sentence as charged in the notice given the defendant of the revocation hearing is required. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959); Gay v. State, 101 Ga. App. 225, 113 S.E.2d 223 (1960).

- Evidence was insufficient when notice contained in special order of arrest charged the defendant with manufacturing illicit whiskey, but no evidence was introduced; mere fact that the defendant was operating a truck loaded with sugar, and the defendant refused to give the name of the purchaser or seller of the sugar and had no bill of lading or bill of sale for the sugar, which facts were perfectly consistent with the defendant's contention that the defendant was doing some hauling, was of itself not sufficient to authorize revocation of the probation order. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

When notice contained in order of arrest failed to charge the defendant with violation of the provision of the probation order prohibiting the defendant from leaving the state without permission, mere fact that the defendant was stopped in Alabama was not sufficient ground for revocation thereof. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

- Since the court cannot revoke a probated sentence unless the sentence has conditions sufficiently definite to be enforceable, and unless the conditions have not been complied with, and since the defendant is entitled to notice and an opportunity to be heard on the charge which is brought against the defendant, only those alleged violations which are terms of the original sentence, and notice of the violation of which has been given the probationer, may be considered by the court on the hearing to revoke the probated sentence. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

3. Violation of Rules or Regulations

Need for prescribed rules and regulations.

- When no rules or regulations are prescribed in the alleged suspended or probated sentence, and no violation of a prescribed rule or regulation is alleged, the court is without authority to order the defendant incarcerated upon the theory that the defendant has violated the terms and conditions of a probation sentence. Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583 (1952); Simmons v. State, 96 Ga. App. 718, 101 S.E.2d 111 (1957) (decided under former Code 1933, §§ 27-2702, 27-2705, and 27-2706, prior to revision by Ga. L. 1956, p. 27, §§ 1, 21).

Probated sentences must show rules and regulations prescribed so that a violation of such rules and regulations will revoke probation. Simmons v. State, 96 Ga. App. 718, 101 S.E.2d 111 (1957) (decided under former Code 1933, §§ 27-2702 and 27-2705, prior to revision by Ga. L. 1956, p. 27, §§ 1, 21); George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

- Court has authority to impose restrictions not specifically listed in this section, and among them the restriction that the defendant shall not violate the penal laws of the state. George v. State, 99 Ga. App. 892, 109 S.E.2d 883 (1959).

- Statutes providing for suspension of a sentence or probation of defendant must be strictly followed. Cross v. Huff, 208 Ga. 392, 67 S.E.2d 124 (1951) (decided under former Code 1933, §§ 27-2702 and 27-2705, prior to revision by Ga. L. 1956, p. 27, §§ 1, 21).

- Provision in a probation sentence that the "sentence is suspended on payment of fine and on the further condition that defendant not violate laws of this state, and until further order of this court," is not so vague, indefinite, ambiguous, and uncertain as to be unenforceable; the laws of this state being fixed by statute and presumed to be within the knowledge of every competent person. Bryant v. State, 89 Ga. App. 891, 81 S.E.2d 556 (1954) (decided under former Code 1933, § 27-2705).

- If the words, "maintain a correct life" are intended to impose any condition upon the defendant over and beyond compliance with the rules prescribed for the defendant's conduct by the court, the words are too vague, indefinite, and uncertain to be given any construction or application. Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583 (1952) (decided under former Code 1933, §§ 27-2705 and 27-2706, prior to revision by Ga. L. 1956, p. 27, § 21).

- Condition which would be authorized in the case of a probated sentence would be authorized in the case of a suspended sentence. Falkenhainer v. State, 122 Ga. App. 478, 177 S.E.2d 380 (1970).

- When no conditions or rules are prescribed by the court for the conduct of the defendant, the defendant's release at the direction of the court upon payment of a fine is not a suspended or probated sentence, but an unconditional discharge. The words, "until further order of the court," appearing in the sentence, are insufficient to constitute a suspended sentence or probation. Morgan v. Foster, 208 Ga. 630, 68 S.E.2d 583 (1952) (decided under former Code 1933, §§ 27-2705 and 27-2706 prior to revision by Ga. L. 1956, p. 27, § 21).

OPINIONS OF THE ATTORNEY GENERAL

Imposition of terms by board.

- Board or the board's agents may not place on a prisoner in connection with the prisoner's probation any terms or conditions not required of the prisoner by court order passed by the trial judge at the conclusion of the hearing held for the purpose of considering the prisoner's probation. 1958-59 Op. Att'y Gen. p. 223.

Board, acting through the director of probation (now commissioner of corrections) and probation officers, is without authority to require of probationers under the board's supervision the execution of any waiver of any right of extradition or otherwise, or to impose upon the probationers any condition not placed upon the probationers by the trial judge in the judge's probation order. 1958-59 Op. Att'y Gen. p. 223.

- Confidential screening for the HTLV-III/LAV virus in convicted prostitutes may be required: (1) as a health measure by the Department of Human Resources; or (2) as a condition of probation by the sentencing court. 1986 Op. Att'y Gen. No. 86-19.

- Superior court judge may impose payment of a fine as a term and condition of probation for a defendant being treated under Ga. L. 1968, p. 324, § 1 (see now O.C.G.A. § 42-8-60 et seq.). 1975 Op. Att'y Gen. No. U75-42.

- Supreme Court of this state has upheld a trial court's authority to impose banishment as a condition of probation. 1979 Op. Att'y Gen. No. U79-8.

- List of conditions of probation in this section is not exclusive. 1979 Op. Att'y Gen. No. U79-8.

- Probated sentence providing for specified community service as a condition of probation is permissible. 1979 Op. Att'y Gen. No. U79-8.

- Probationer can be required to pay by court order, as a condition of his/her probation, a reasonable amount toward the cost of maintaining insurance to protect probation supervisors from personal liability should probationers be injured while performing court-ordered community service. 1983 Op. Att'y Gen. No. 83-18.

- Probationer may be required to enter into covenant not to sue probation supervisors personally. A sentencing court may, in the court's discretion, require a probationer to enter into, as a condition of probation, a covenant not to sue probation supervisors in their personal capacity if the probationer is injured while performing court-ordered community service work. 1983 Op. Att'y Gen. No. 83-18.

- Probationer's agreement to pay supervision fee should be obtained at time of sentencing and should be recorded. But, regardless of whether the probationer agrees, the probationer can be required to pay the reasonable supervision fee as a condition of probation. 1981 Op. Att'y Gen. No. 81-100.

Statutory conditions in O.C.G.A. § 42-8-35 are not exclusive, and trial courts may, as a condition of probation, impose a probation supervision fee. 1985 Op. Att'y Gen. No. U85-4.

- Department of Offender Rehabilitation (Corrections) may not on its own initiative collect a supervision fee from probationers. 1981 Op. Att'y Gen. No. 81-100.

- Probation supervision fee collected pursuant to probation order of sentencing court does not have a statutory premise. Therefore, such a fee does not have to be paid into state treasury but, if permitted by probation order, could be retained by the Department of Offender Rehabilitation (Corrections). 1981 Op. Att'y Gen. No. 81-100.

RESEARCH REFERENCES

Am. Jur. 2d.

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

- 24 C.J.S., Criminal Law, §§ 2144-2161.

- Power to impose sentence with direction that after defendant shall have served part of time he be placed on probation for the remainder of term, 147 A.L.R. 656.

Propriety of conditioning probation or suspended sentence on defendant's refraining from political activity, protest, or the like, 45 A.L.R.3d 1022.

What constitutes "good behavior" within statute or judicial order expressly conditioning suspension or sentence thereon, 58 A.L.R.3d 1156.

Propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim, 79 A.L.R.3d 976.

Validity of requirement that, as condition of probation, indigent defendant reimburse defense costs, 79 A.L.R.3d 1025.

Propriety of conditioning probation upon defendant's posting of bond guaranteeing compliance with terms of probation, 79 A.L.R.3d 1068.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Propriety of conditioning probation on defendant's not associating with particular person, 99 A.L.R.3d 967.

Propriety of conditioning probation on defendant's serving part of probationary period in jail or prison, 6 A.L.R.4th 446.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 19 A.L.R.4th 1251.

Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 A.L.R.4th 755.

Propriety of conditioning probation on defendant's not entering specified geographical area, 28 A.L.R.4th 725.

Propriety of conditioning probation on defendant's submission to polygraph or other lie detector testing, 86 A.L.R.4th 709.

Propriety of conditioning probation on defendant's submission to drug testing, 87 A.L.R.4th 929.

Propriety of conditioning parole on defendant's not entering specified geographical area, 54 A.L.R.5th 743.

Propriety of probation condition exposing defendant to public shame or ridicule, 65 A.L.R.5th 187.

Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 46 A.L.R.6th 241.

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.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 92 A.L.R.6th 1.