2020 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-39. Suspension of Sentence Does Not Place Defendant on Probation
In all criminal cases in which the defendant is found guilty or in which a plea of guilty or of nolo contendere is entered and in which the court after imposing sentence further provides that the execution of the sentence shall be suspended, such provision shall not have the effect of placing the defendant on probation as provided in this article.
(Ga. L. 1956, p. 27, § 13; Ga. L. 1960, p. 1148, § 2; Ga. L. 1965, p. 413, § 4; Ga. L. 2015, p. 422, § 4-1/HB 310.)
The 2015 amendment, effective July 1, 2015, substituted "court" for "trial judge" in the middle of this Code section. See Editor's notes for applicability.
Editor's notes.- 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."
Law reviews.- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).
JUDICIAL DECISIONS
Comparison to other sections.
- Ga. L. 1965, p. 413, § 4 (see now O.C.G.A. § 42-8-39) dealt with the effect of suspended sentences while former Code 1933, §§ 27-2502 and 27-2506.1 (see now O.C.G.A. §§ 17-10-1 and17-10-4) dealt with authority to impose the sentences. Cross v. State, 128 Ga. App. 774, 197 S.E.2d 853 (1973).
Authorized conditions.
- 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).
Effect of amendment.
- This section was amended to specify that suspended sentences not come under this article, but it did not provide any change allowing the court to suspend sentences. Cross v. State, 128 Ga. App. 774, 197 S.E.2d 853 (1973).
Suspension upon condition did not amount to probation.
- Suspension of a convicted drunk driver's sentence upon condition that the driver not drive for 120 days did not have the effect of placing the driver on probation since the driver's driver's license was automatically suspended for 120 days. Williams v. State, 191 Ga. App. 217, 381 S.E.2d 399 (1989).
Distinguishing length of service for suspended and probated sentences.
- Court may, at the time of sentencing, specify the amount to be paid by the parent for the support of the minor child and may suspend the service of the sentence pending the minority of the child. When the child reaches majority, the sentence of course is at an end. However, service of any sentence so suspended in abandonment cases may be ordered at any time before the child reaches the age of 21. However, when a sentence is merely probated, the probationary feature of the sentence ends when the elapsed time equals the maximum sentence of confinement which could have been imposed. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978).
Abuse of discretion by court.
- Trial court abuses the court's discretion when the court places a case on the dead docket over the defendant's objection. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144 (1970).
Cited in Todd v. State, 107 Ga. App. 771, 131 S.E.2d 201 (1963); Rowland v. State, 120 Ga. App. 248, 170 S.E.2d 58 (1969); Falkenhainer v. State, 122 Ga. App. 478, 177 S.E.2d 380 (1970); Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980); United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).
OPINIONS OF THE ATTORNEY GENERAL
Running of suspended sentence conditioned on payment of fine.
- Suspended sentence conditioned on payment of fine does not begin to run if fine is not paid until state or defendant initiates action to have suspension revoked. 1981 Op. Att'y Gen. No. U81-42.
Effect of suspension of part of sentence.- In the imposition of a sentence, if the trial court suspends service of part of sentence, the provision for suspension shall not have the effect of placing the defendant on probation; thus, once a probated sentence is revoked and the probationer has been sentenced to a definite period of years of imprisonment and the remainder of the defendant's sentence has been suspended, this sentence does not have the effect of placing the defendant on probation and, therefore, such sentence cannot be revoked. 1968 Op. Att'y Gen. No. 68-165.
Modification of original sentence upon probation.- When a prisoner is placed on probation, the original sentence is subject to modification by the rendering court at any time during the period of probation; the judge imposing sentence is granted the power and authority to revoke suspension or probation when the defendant has violated any of the rules or regulations prescribed by the court. 1968 Op. Att'y Gen. No. 68-165.
Remanding offender to prison upon suspension of sentence.- State Board of Pardons and Paroles cannot remand offender to prison when sentence has been suspended by court. 1963-65 Op. Att'y Gen. p. 36.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 526-536.
C.J.S.- 24 C.J.S., Criminal Law, §§ 1975, 2144-2161.
ALR.- What constitutes "good behavior" within statute or judicial order expressly conditioning suspension of sentence thereon, 58 A.L.R.3d 1156.
Pretrial diversion: statute or court rule authorizing suspension or dismissal of criminal prosecution on defendant's consent to noncriminal alternative, 4 A.L.R.4th 147.
Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.
