2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-36. Duty of Probationer to Inform Officer of Residence and Whereabouts; Violations; Tolling; Unpaid Moneys

1. 1. It shall be the duty of a probationer, as a condition of probation, to keep his or her officer informed as to his or her residence. Upon the recommendation of the officer, the court may also require, as a condition of probation and under such terms as the court deems advisable, that the probationer keep the officer informed as to his or her whereabouts.
   2. The running of a probated sentence shall be tolled upon:
      1. The failure of a probationer to report to his or her officer as directed or failure to appear in court for a probation revocation hearing; either of such failures may be evidenced by an affidavit from the officer setting forth such failure; or
      2. The filing of a return of non est inventus or other return to a warrant, for the violation of the terms and conditions of probation, that the probationer cannot be found in the county that appears from the records of the officer to be the probationer's county of residence. Any officer authorized by law to issue or serve warrants may return the warrant for the absconded probationer showing non est inventus.
   3. The effective date of the tolling of the sentence shall be the date the court enters a tolling order and shall continue until the probationer shall personally report to the officer, is taken into custody in this state, or is otherwise available to the court. The clerk of court shall transmit a copy of a tolling order to the Georgia Crime Information Center within 30 days of the filing of such order.
   4. Any tolled period of time shall not be included in computing creditable time served on probation or as any part of the time that the probationer was sentenced to serve.
2. Any unpaid fines, restitution, or any other moneys owed as a condition of probation shall be due when the probationer is arrested; but, if the entire balance of his or her probation is revoked, all the conditions of probation, including moneys owed, shall be negated by the probationer's imprisonment. If only part of the balance of the probation is revoked, the probationer shall still be responsible for the full amount of the unpaid fines, restitution, and other moneys upon his or her return to probation after release from imprisonment.

(Ga. L. 1958, p. 15, § 9; Ga. L. 1982, p. 3, § 42; Ga. L. 1984, p. 1317, § 1; Ga. L. 1986, p. 492, § 1; Ga. L. 1987, p. 455, § 1; Ga. L. 1989, p. 452, § 1; Ga. L. 1992, p. 6, § 42; Ga. L. 2010, p. 557, § 1/HB 859; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2016, p. 443, § 6B-8/SB 367.)

The 2015 amendment, effective July 1, 2015, substituted "officer" for "probation supervisor" throughout this Code section; in subsection (b), inserted "or her" twice, and substituted "the probationer's" for "his" in the first sentence. See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, added the last sentence in paragraph (a)(3).

- 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). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For note on 1989 amendment of this Code section, see 6 Ga. St. U.L. Rev. 287 (1989).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Penal Code 1910, § 1081(4) are included in the annotations for this Code section.

Construction with O.C.G.A. § 17-10-10. - Section17-10-10, relating to concurrent service of sentences, must yield to O.C.G.A. § 42-8-36 if there is any conflict between them. Downs v. State, 163 Ga. App. 485, 295 S.E.2d 152 (1982).

- State probation officer was entitled to qualified immunity as to a probationer's malicious prosecution claim based on the officer's sentence miscalculation because it was not clearly established that the officer's alleged conduct would subject the officer to liability since there were published decisions from the court granting absolute immunity to probation officers who were alleged to have made material misrepresentations that impacted the offender's sentence. Williams v. Morahan, F.3d (11th Cir. Sept. 11, 2013)(Unpublished).

- When a person is placed under a probation sentence, probation cannot be revoked without notice to probationer and an opportunity to be heard on the question as to whether the probationer violated its terms. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972).

Minimum requirements of due process for parole revocation are a written statement by the fact finders as to the evidence relied on and reasons for revoking parole. Reed v. State, 151 Ga. App. 224, 259 S.E.2d 209 (1979).

Hearing required need not meet the requisites of a jury trial; the proceedings may be informal or summary. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972).

Judge is the sole trier of fact and when there is even slight evidence the appellate court will not interfere with the revocation unless there has been an abuse of discretion. Rainwater v. State, 127 Ga. App. 406, 193 S.E.2d 889 (1972).

Order revoking probation must state the evidence relied upon and the reasons for revocation. Rey v. State, 156 Ga. App. 474, 274 S.E.2d 822 (1980).

- Discretion of the judge in revoking probation will not be interfered with unless grossly abused. Olsen v. State, 21 Ga. App. 795, 95 S.E. 269 (1918); Towns v. State, 25 Ga. App. 419, 103 S.E. 724, cert. denied, 25 Ga. App. 841, S.E. (1920).

Leaving jurisdiction of court is ground for revocation. Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520 (1918).

- Parole cannot lawfully be revoked as a mere matter of caprice. In such hearing the judge is the sole judge of the credibility of the witnesses, but the judge is not permitted to withdraw a parole unless there is sufficient evidence to authorize a finding that one or more of the conditions upon which the parole was granted has been violated. Williams v. State, 162 Ga. 327, 133 S.E. 843 (1926).

When it cannot be determined whether the criminal act charged against the probationer as in violation of the probationer's parole was committed prior to the imposition of the sentence or subsequent thereto, a finding revoking the parole would be contrary to law and would not be authorized. Williams v. State, 162 Ga. 327, 133 S.E. 843 (1926).

- When an arrest warrant alleging probation violations was returned non est inventus, the court did not err in tolling the probated sentence and in reinstating defendant's probation, even though the state could not prove any probation violations at the revocation hearing. Robson v. State, 226 Ga. App. 209, 485 S.E.2d 822 (1997).

- When a probation warrant was returned non est inventus, the tolling function initiated under paragraph (1) of subsection (a) was not interrupted by defendant's arrest on unrelated charges in another county. Cauldwell v. State, 211 Ga. App. 417, 439 S.E.2d 90 (1993).

Defendant's probation was properly tolled under O.C.G.A. § 42-8-36(a)(2) after the trial court found that the probation supervisor's affidavit set forth the factual averments required by O.C.G.A. § 42-8-36(a)(2), as it informed the court that the defendant had absconded from a known residence and that the defendant's current residence was unknown, a violation of the defendant's probation conditions; thus, the trial court did not err in revoking the defendant's first offender probation, adjudicating the defendant guilty, and imposing sentence on the defendant. Vincent v. State, 271 Ga. App. 138, 608 S.E.2d 748 (2004).

Because no language in a probation revocation affidavit indicated that the defendant had absconded and could not be found, and the warrant stated only that the defendant was in arrears in the payment of ordered restitution, a trial court erred in tolling the defendant's probation pursuant to O.C.G.A. § 42-8-36(a) and sentencing the defendant accordingly. Campbell v. State, 280 Ga. App. 561, 634 S.E.2d 512 (2006).

Trial court improperly denied a defendant's motion to terminate the defendant's probation by incorrectly ruling that the probation was properly tolled based on O.C.G.A. § 42-8-36 since the state alleged that the defendant absconded and could not be found. The warrant that was returned showing that the defendant could not be found contained no oath or attestation and, therefore, failed as an affidavit, which was a requirement of § 42-8-36. Wilson v. State, 292 Ga. App. 540, 664 S.E.2d 890 (2008).

Trial court did not err in holding that a probationer's probated sentence was tolled, under former O.C.G.A. § 42-8-36(a)(1), because the probationer pointed to evidence in the appellate record supporting the probationer's assertions that the probationer's arrest warrant, with the signed statement by a deputy of non est inventus, was not found in the clerk's file or otherwise returned to the court. Thompson v. State, 313 Ga. App. 294, 721 S.E.2d 106 (2011).

Under current Georgia statutes, the tolling of a misdemeanor probationer's sentence is not permitted and courts utilizing probation systems established pursuant to O.C.G.A. § 42-8-100(g)(1) are specifically precluded from applying the provisions of the State-wide Probation Act, O.C.G.A. § 42-8-20 et seq., including those pertaining to tolling, to the defendants the courts sentence. Sentinel Offender Services, LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

Georgia Supreme Court held that the private probation statutory framework did not allow for the tolling of misdemeanor probationers' sentences and to the extent Georgia courts have recognized O.C.G.A. § 42-8-36 as a basis for allowing courts utilizing probation systems established pursuant to O.C.G.A. § 42-8-100(g)(1) to toll a probationer's sentence, such analysis was in error and was disapproved. Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014).

Georgia Supreme Court answered two questions certified to it from a federal district court and concluded, as a matter of common law, that the mere passage of time does not extinguish an unserved sentence and that the common law principle has not been abrogated by the State-wide Probation Act, O.C.G.A. § 42-8-30. Anderson v. Sentinel Offender Servs., LLC, 298 Ga. 854, 784 S.E.2d 791 (2016).

Order revoking probationer's parole is not a final judgment as is subject to review. Antonopoulas v. State, 151 Ga. 466, 107 S.E. 156 (1921); Troup v. State, 27 Ga. App. 636, 109 S.E. 681 (1921); Jackson v. State, 27 Ga. App. 648, 110 S.E. 423 (1921).

- Because the defendant's fine was not assessed as a condition of probation, but as a part of the defendant's DUI sentence, the trial court did not err in denying the defendant's motion to negate or suspend the fine when defendant's probation was revoked. Rouse v. State, 256 Ga. App. 579, 569 S.E.2d 261 (2002).

Cited in Dilas v. State, 159 Ga. App. 39, 282 S.E.2d 690 (1981); Cooper v. State, 160 Ga. App. 287, 287 S.E.2d 284 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Tolling of probated sentence.

- This section provides for the tolling of a probated sentence when the specified returns to a warrant have been made; the mere issuance of an arrest warrant does not toll the probated sentence; however, a probated sentence is suspended automatically upon an entry of one of the specified returns to such warrant. 1968 Op. Att'y Gen. No. 68-303.

RESEARCH REFERENCES

Am. Jur. 2d.

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

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

- Imposition or enforcement of sentence which has been suspended without authority, 141 A.L.R. 1225.

Right of defendant sentenced after revocation of probation to credit for jail time served as a condition of probation, 99 A.L.R.3d 781.

Admissibility of hearsay evidence in probation revocation hearings, 11 A.L.R.4th 999.