2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-37. Effect of Termination of Probated Portion of Sentence; Review of Cases of Persons Receiving Probated Sentence; Reports

1. Upon the termination of the probated portion of a sentence, the probationer shall be released from probation and shall not be liable to sentence for the crime for which probation was allowed; provided, however, that the foregoing shall not be construed to prohibit the conviction and sentencing of the probationer for the subsequent commission of the same or a similar offense or for the subsequent continuation of the offense for which he or she was previously sentenced.
2. The court may at any time cause the probationer to appear before it to be admonished or commended and, when satisfied that its action would be for the best interest of justice and the welfare of society, may discharge the probationer from further supervision.
3. 1. The case of each person receiving a probated sentence of three years or more shall be reviewed by the officer responsible for such case after service of three years on probation, and a written report of the probationer's progress shall be submitted to the sentencing court along with the officer's recommendation as to early termination. The report shall specifically state whether the probationer has been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37, whether the probationer has been compliant with the general and special conditions of probation imposed, and the status of the probationer's payments toward restitution or any fines and fees imposed. Each such case shall be reviewed and a written report submitted annually thereafter until the termination, expiration, or other disposition of the case.
   2. This subsection is intended to be retroactive and applied to any case when a person received a probated sentence of three years or more.
4. 1. When a probationer is on probation for a qualified offense, DCS shall file a petition to terminate his or her probation if, after serving three years on probation, the probationer has:
      1. Paid all restitution owed;
      2. Not had his or her probation revoked during such period; and
      3. Not been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37.
   2. When the court is presented with such petition, it shall take whatever action it determines would be for the best interest of justice and the welfare of society. When such petition is unopposed, the court shall issue an order as soon as possible or otherwise set the matter for a hearing within 90 days of receiving such petition.
   3. This subsection is intended to be retroactive and applied to any probationer under the supervision of DCS.

(Ga. L. 1956, p. 27, § 11; Ga. L. 1972, p. 604, § 9; Ga. L. 1985, p. 516, § 1; Ga. L. 2012, p. 899, § 7-10/HB 1176; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2017, p. 585, § 2-8/SB 174; Ga. L. 2018, p. 550, § 2-13/SB 407.)

The 2012 amendment, effective July 1, 2012, in subsection (a), substituted "probated portion of a sentence" for "period of probation", inserted "that" near the middle, and inserted "or she" near the end; designated the former second sentence of subsection (a) as present subsection (b); redesignated former subsection (b) as present subsection (c), and, in subsection (c), substituted "The" for "Upon the request of the chief judge of the court from which said person was sentenced, the" in the first sentence, in the second sentence, substituted "Each" for "Upon the request of the chief judge of the court from which said person was sentenced, each", and deleted ", or more often if required," following "thereafter". See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, substituted "interest" for "interests" in subsection (b); in subsection (c), in the first sentence, substituted "officer responsible for such case" for "probation supervisor responsible for that case" and substituted "officer's" for "supervisor's" near the end. See Editor's notes for applicability.

The 2017 amendment, effective July 1, 2017, designated the existing provisions of subsection (c) as paragraph (c)(1); in paragraph (c)(1), in the first sentence, substituted "three years or more" for "more than two years" near the beginning and substituted "three years" for "two years" near the middle, and added the last sentence; added paragraph (c)(2); and added subsection (d).

The 2018 amendment, effective July 1, 2018, added the second sentence of paragraph (d)(2).

- 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). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).

JUDICIAL DECISIONS

Formalization of "discharge" unnecessary.

- "Discharge" of a non-first-offender probationer is automatic upon the successful completion of the terms of the sentence and is not dependent upon the subsequent formalization of that successful completion. State v. Mills, 268 Ga. 873, 495 S.E.2d 1 (1998).

- Because the defendant had completed a three-year first-offender probationary sentence and had been discharged without court adjudication of guilt pursuant to O.C.G.A. § 42-8-62 at the time the probationer allegedly violated O.C.G.A. § 16-11-131, the trial court properly dismissed the charge. State v. Mills, 268 Ga. 873, 495 S.E.2d 1 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

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

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

- Governor's authority to remit forfeited bail bond, 77 A.L.R.2d 988.