2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-3. Punishment for Misdemeanors Generally

1. Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows:
   1. By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both;
   2. By confinement under the jurisdiction of the Board of Corrections in a state probation detention center pursuant to Code Section 42-8-35.4 for a determinate term of months which shall not exceed a total term of 12 months; or
   3. If the crime was committed by an inmate within the confines of a state correctional institution, by confinement under the jurisdiction of the Board of Corrections in a state correctional institution or such other institution as the Department of Corrections may direct for a term which shall not exceed 12 months.
2. Either the punishment provided in paragraph (1) or (2) of subsection (a) of this Code section, but not both, may be imposed in the discretion of the sentencing judge. Misdemeanor punishment imposed under either paragraph may be subject to suspension or probation. The sentencing courts shall retain jurisdiction to amend, modify, alter, suspend, or probate sentences under paragraph (1) of subsection (a) of this Code section at any time, but in no instance shall any sentence under the paragraph be modified in a manner to place a county inmate under the jurisdiction of the Board of Corrections, except as provided in paragraph (2) of subsection (a) of this Code section.
3. In all misdemeanor cases in which, upon conviction, a six-month sentence or less is imposed, it is within the authority and discretion of the sentencing judge to allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant. A weekend shall commence and shall end in the discretion of the sentencing judge, and the nonworking hours of the defendant shall be determined in the discretion of the sentencing judge; provided, however, that the judge shall retain plenary control of the defendant at all times during the sentence period. A weekend term shall be counted as serving two days of the full sentence. Confinement during the nonworking hours of a defendant during any day may be counted as serving a full day of the sentence.
4. In addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, or punishment of a municipal ordinance involving a traffic offense, with the exception of habitual offenders sentenced under Code Section 17-10-7, a judge may impose any one or more of the following sentences:
   1. Reexamination by the Department of Driver Services when the judge has good cause to believe that the convicted licensed driver is incompetent or otherwise not qualified to be licensed;
   2. Satisfactory completion of a defensive driving course or defensive driving program approved by the Department of Driver Services;
   3. Within the limits of the authority of the charter powers of a municipality or the punishment prescribed by law in other courts, imprisonment at times specified by the court or release from imprisonment upon such conditions and at such times as may be specified; or
   4. Probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge. The conditions may include driving with no further motor vehicle violations during a specified time unless the driving privileges have been or will be otherwise suspended or revoked by law; reporting periodically to the court or a specified agency; and performing, or refraining from performing, such acts as may be ordered by the judge.
5. Any sentence imposed under subsection (d) of this Code section shall be reported to the Department of Driver Services as prescribed by law.
6. The Department of Community Supervision shall lack jurisdiction to supervise misdemeanor offenders, except when the sentence is made concurrent to a probated felony sentence or as provided in Code Section 42-8-109.5. Except as provided in this subsection, the Department of Corrections shall lack jurisdiction to confine misdemeanor offenders.
7. This Code section will have no effect upon any offender convicted of a misdemeanor offense prior January 1, 2001, and sentenced to confinement under the jurisdiction of the Board of Corrections or to the supervision of the Department of Corrections.

(Orig. Code 1863, § 4209; Ga. L. 1865-66, p. 233, § 2; Code 1868, §§ 4245, 4608; Code 1873, §§ 4310, 4705; Ga. L. 1878-79, p. 54, § 1; Code 1882, §§ 4310, 4705; Ga. L. 1895, p. 63, § 2; Penal Code 1895, § 1039; Ga. L. 1908, p. 1119, § 1; Penal Code 1910, § 1065; Code 1933, § 27-2506; Ga. L. 1956, p. 161, § 4; Ga. L. 1957, p. 477, § 5; Ga. L. 1964, p. 485, § 1; Ga. L. 1970, p. 236, § 10; Ga. L. 1972, p. 600, § 1; Ga. L. 1974, p. 361, § 1; Ga. L. 1974, p. 631, § 1; Ga. L. 1976, p. 210, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1992, p. 3221, § 2; Ga. L. 1997, p. 1526, § 1; Ga. L. 2000, p. 1643, § 1; Ga. L. 2001, p. 1030, § 2; Ga. L. 2002, p. 415, § 17; Ga. L. 2005, p. 334, § 7-4/HB 501; Ga. L. 2014, p. 710, § 1-3/SB 298; Ga. L. 2015, p. 422, § 5-32/HB 310; Ga. L. 2016, p. 443, § 13-5/SB 367.)

- Time limitation on prosecutions for misdemeanors, § 17-3-1.

Additional penalties for violations of municipal ordinances, § 36-30-8.

Sentences for misdemeanor traffic offenses, § 40-13-26.

Jurisdiction of Department of Offender Rehabilitation over misdemeanor offenders generally, § 42-5-51.

Alternative provisions for sentencing of offenders between ages 17 and 25, § 42-7-3 et seq.

Probation of first offenders, § 42-8-60 et seq.

- Pursuant to Code Section 28-9-5, in 2013, "or when the sentence is accepted pursuant to Code Section 42-9-71" was deleted following "felony sentence" at the end of the first sentence of subsection (f).

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that this Act shall apply to sentences entered on or after July 1, 2015.

- Offender administration, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Departmental Operations, Chapter 125-2-4.

- For article discussing the constitutionality of imposing harsher sentences upon defendants found guilty in new trial after appeal, see 6 Ga. St. B.J. 183 (1969). For article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). 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 Georgia St. U.L. Rev. 139 (2016). For note, "Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors' Prison System," see 48 Ga. L. Rev. 227 (2013).

ANALYSIS

• General Consideration
• Multiple Offenses
• Probation
• Sentence Improper
• Sentence Proper
• Review

OPINIONS OF THE ATTORNEY GENERAL

Purpose.

- One of the evils sought to be remedied by this section was the placing of individuals in prisons who are not of the same caliber as felons or misdemeanants who warrant maximum periods of confinement. A second and equally important purpose of that section was to prevent our prison system from being crowded by minor offenders, thereby prohibiting effective rehabilitative treatment for either the misdemeanants or the felons. 1963-65 Op. Att'y Gen. p. 512.

- Misdemeanant must be sentenced to a term of seven months (now twelve months) in actual imprisonment before a sentence could be construed as placing such individual under state jurisdiction. This would preclude state jurisdiction when a misdemeanant is given a sentence of 12 months, to serve one month, with the balance probated. However, a sentence of 12 months, seven months to be served, with the balance probated, would be a state sentence as it fulfills the minimum requirement of seven months in confinement. 1963-65 Op. Att'y Gen. p. 512.

- Conviction controls the question of whether the specific punishment is to be computed on the basis of its being a felony or a misdemeanor sentence. A prisoner is either a misdemeanant or a felon, depending on the crime for which the prisoner was convicted. 1970 Op. Att'y Gen. No. 70-49.

- Sentence does not have a shifting quality, allowing the sentence to vacillate between misdemeanor and felony status at different times or for different purposes. 1970 Op. Att'y Gen. No. 70-49.

When the sentence itself contains a reduction of an offense from a felony to a misdemeanor, the sentence should be computed as a misdemeanor because those authorized to fix the sentence have elected to so treat it. 1970 Op. Att'y Gen. No. 70-49.

- It was evident from this section that sentence alternatives within bounds are permissible. 1948-49 Op. Att'y Gen. p. 81.

- Court may alter a misdemeanor sentence after the passage of approximately two months so as to change the sentence from a county sentence to a state sentence to be served under the jurisdiction of the Board of Offender Rehabilitation. 1965-66 Op. Att'y Gen. No. 66-53.

Any modification of a sentence after term of court in which sentence was rendered is void with the exception of sentences for misdemeanors under paragraph (a)(1) of this section or unless the court bases the court's modification of an existing sentence on the premise that a clerical error was made or that a motion to modify the sentence was made during the term of court in which the sentence was filed. 1980 Op. Att'y Gen. No. 80-43.

- Original sentence imposed pursuant to this section, regardless of whether the sentence contained a probation provision, may not be altered after the term at which the sentence was imposed so as to include the payment of a fine. 1967 Op. Att'y Gen. No. 67-185.

- Trial court has no authority to alter a sentence at a term of court other than the term in which the sentence was imposed, except in those instances in which the General Assembly has expressly provided for such modification. 1967 Op. Att'y Gen. No. 67-185.

Trial court cannot correct an erroneous sentence. 1967 Op. Att'y Gen. No. 67-185.

Court may impose a sentence of a certain number of days or a term of months plus an odd number of days under this section. 1963-65 Op. Att'y Gen. p. 512.

Misdemeanor prisoners confined in county installations are under the jurisdiction of the county and not the State Board of Corrections (now Board of Offender Rehabilitation). 1970 Op. Att'y Gen. No. U70-134.

- This section can be fairly interpreted to mean that for each misdemeanor of which a person is convicted, if the misdemeanor's sentence is greater than six months and no more than 12 months, then the misdemeanor's can be placed under the jurisdiction of the Board of Corrections (now Board of Offender Rehabilitation). 1971 Op. Att'y Gen. No. 71-95.

- If a fine is made part of a misdemeanor sentence, regardless of the length of incarceration prescribed by the sentence, the prisoner must serve under county jurisdiction. 1965-66 Op. Att'y Gen. No. 65-66.

- If a general sentence is ordered for two or more misdemeanor counts, then the Board of Corrections (now Board of Offender Rehabilitation) has no way of knowing how many months of the general sentence are attributable to any specific misdemeanor. Any action the board would take under such a circumstance would be but speculation. Since any ambiguity in a sentence has to be interpreted in favor of the prisoner, the prisoner could not be placed under the jurisdiction of the Board of Corrections (now Board of Offender Rehabilitation) on the basis of speculation as to the composition of the prisoner's general sentence. 1971 Op. Att'y Gen. No. 71-95.

- As a general rule, the General Assembly has designated the Board of Offender Rehabilitation as the sole agency for the reception and assignment of all convicted misdemeanants and felons. Notable exceptions to this general provision concern individuals convicted of misdemeanors who, under certain conditions, must be placed in a county institution and, under other conditions, may be placed in such facilities in the discretion of the trial court. The final notable exception provides that the Division for Children and Youth (now Department of Offender Rehabilitation) is designated the exclusive state agency for the acceptance and incarceration of all misdemeanants and felons under the age of 17 years; provided, however, those felons convicted of a capital felony shall only be sentenced into the custody of the Department of Offender Rehabilitation. 1972 Op. Att'y Gen. No. 72-3.

- All felons and misdemeanants, other than those misdemeanants committed directly to a county correctional institution, must be committed directly and exclusively to the State Board of Corrections (now Board of Offender Rehabilitation). Only the commissioner of offender rehabilitation is authorized to prescribe the place of confinement. So much of the language of a sentence committing an inmate to a term of penal servitude in the state prison system as purports to commit the inmate to Central State Hospital is surplusage and should not be relied upon by the officials of the hospital or the Board of Corrections (now Board of Offender Rehabilitation) as authority for the retention of custody of the inmate at the hospital. 1970 Op. Att'y Gen. No. 70-133.

- One convicted of a misdemeanor may be sentenced to any authorized punishments, but any one punishment which exceeds the amount or time authorized is illegal with respect to such excess. 1948-49 Op. Att'y Gen. p. 81.

- State Board of Pardons and Paroles is not obligated to consider parole for those misdemeanor inmates sentenced under O.C.G.A. § 17-10-3(a)(1) to serve their confinement as county inmates, although the board may have an obligation to articulate some reason for refusing consideration of these individuals. 1984 Op. Att'y Gen. No. 84-25.

- Those individuals who are 18, 19, or 20 years of age may be confined in a county facility under O.C.G.A. § 17-10-3(a)(1) and (e)(3) even after their first adjudication of guilt. 1984 Op. Att'y Gen. No. U84-11.

- Those individuals who have been adjudicated guilty of a traffic misdemeanor for the first time, and who were 16 or 17 years old at the time the offense was committed, if sentenced to a term of confinement, must be confined under the jurisdiction of the Board of Offender Rehabilitation (now Department of Corrections), but if the individuals are sentenced to serve time upon a second or any succeeding adjudication of guilt, there is no requirement that confinement be under the jurisdiction of the Department of Offender Rehabilitation (now Department of Corrections), and in that instance, the sentence could be served in the county correctional institution, the county jail, or such other place as may be provided for the confinement of county inmates. 1984 Op. Att'y Gen. No. U84-11.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 706 et seq., 729 et seq. 21A Am. Jur. 2d, Criminal Law, §§ 843 et seq., 851 et seq.

- Habeas corpus in case of sentence which is excessive because of imposing both fine and imprisonment, 49 A.L.R. 494.

Power of court to impose sentence providing for intermittent incarceration, 39 A.L.R.2d 985.

Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.

Sentencing: permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine, 35 A.L.R.4th 192.