2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-35.4. Confinement in Probation Detention Center

1. Notwithstanding any other terms and conditions of probation which may be imposed, a court may require that a defendant convicted of a felony and sentenced to a period of not less than one year on probation or a defendant who has been previously sentenced to probation for a forcible misdemeanor as defined in paragraph (7) of Code Section 16-1-3 or a misdemeanor of a high and aggravated nature and has violated probation or other probation alternatives and is subsequently sentenced to a period of not less than one year on probation shall complete satisfactorily, as a condition of such probation, a program of confinement, not to exceed 180 days, in a probation detention center. Probationers so sentenced shall be required to serve the period of confinement, not to exceed 180 days, specified in the court order.
2. The court shall determine that the defendant is at least 17 years of age at the time of sentencing.
3. During the period of confinement, the Department of Corrections may transfer the probationer to other facilities in order to provide needed physical and mental health care or for other reasons essential to the care and supervision of the probationer or as necessary for the effective administration and management of its facilities.

(Code 1981, §42-8-35.4, enacted by Ga. L. 1995, p. 627, § 1; Ga. L. 2009, p. 99, § 1/HB 226; Ga. L. 2012, p. 899, § 7-9/HB 1176; Ga. L. 2015, p. 422, § 4-1/HB 310.)

The 2012 amendment, effective July 1, 2012, in subsection (a), inserted ", not to exceed 180 days," in the first and second sentences and substituted "shall be required" for "will be required" in the second sentence. See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, in subsection (a), in the first sentence, substituted "Notwithstanding any other terms and conditions of probation which may be imposed, a court" for "In addition to any other terms and conditions of probation provided for in this article, the trial judge" at the beginning, and substituted "such probation" for "that probation" near the end; and substituted "Department of Corrections" for "department" in subsection (c). See Editor's notes for applicability.

- Ga. L. 2009, p. 99, § 2/HB 226, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to probationers sentenced on or after July 1, 2009.

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. 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 on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

JUDICIAL DECISIONS

Confinement of misdemeanants.

- Defendant was not eligible under O.C.G.A. § 17-10-3 for state probation detention center sentencing for misdemeanor battery since the defendant did not fit into one of the narrow categories set forth in O.C.G.A. § 42-8-35.4. Anderson v. State, 261 Ga. App. 716, 583 S.E.2d 549 (2003).

- O.C.G.A. § 42-8-35.4 allowed a court to order the confinement of a defendant in a probation detention center if the defendant was convicted of a felony and sentenced to a period of at least one year on probation. Defendant's sentence met these statutory requirements. Johnson v. State, 283 Ga. App. 425, 641 S.E.2d 655 (2007).

Construction with O.C.G.A. § 17-10-1. - Reading O.C.G.A. §§ 17-10-1(a)(3)(A) and42-8-35.4 together, a court can confine a probation violator in a probation detention center, but not if probation is revoked for any of the reasons enumerated in O.C.G.A. § 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).

- Trial court did not err in denying a probationer's motion to modify a sentence because the probationer's claim was cognizable only in a mandamus action against the Commissioner of the Department of Corrections or in a petition for habeas corpus since the probationer's sole complaint went to the Department's decision to transfer the probationer from a probation center to a state prison under O.C.G.A. § 42-8-35.4(c), and the probationer expressly agreed as a special condition of probation that the Department could transfer the probationer to other facilities if necessary; Code Section42-8-35.4 does not require the Department to transfer a probationer to a probation detention center nor does the statute prohibit the Department from transferring a probationer to a prison. Hillis v. State, 303 Ga. App. 201, 692 S.E.2d 793 (2010).

- Trial court did not err in denying the defendant's motion to correct an illegal sentence because, in accordance with the plain language of the First Offender Act, O.C.G.A. § 42-8-65(c), during the defendant's term of confinement, the defendant, who pled guilty to first degree cruelty to children, O.C.G.A. § 16-5-70, was deemed to be a convicted felon for purposes of the State-Wide Probation Act, O.C.G.A. § 42-8-35.4, and consequently, within a category of persons eligible to serve the ordered term of confinement at a probation detention center; the legislature is presumed to have had full knowledge of the First Offender Act when the legislature enacted the State-Wide Probation Act. Mason v. State, 310 Ga. App. 118, 712 S.E.2d 76 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Confinement of misdemeanants.

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