2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-9. Specification by Judge Imposing Sentence of Time From Which Penal Sentence to Run; Effect of Appeal

1. In the imposition of sentence for violation of the penal laws, it shall be the duty of the judge to specify that the term of service under the sentence shall be computed from the date of sentence if the defendant is confined in jail or otherwise incarcerated and has no appeal or motion for new trial pending.
2. In cases which are appealed to the Georgia Court of Appeals or the Georgia Supreme Court for reversal of the conviction, the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond but is incarcerated or in custody of the sheriff of the county where convicted. If the defendant was at liberty under bond during the pendency of the appeal, once the remittitur of the appellate court is made the judgment of the court in which the conviction is had, the prosecuting attorney shall have the burden of notifying the defendant of the commencement of the sentence within 90 days of such remittitur. When the prosecuting attorney fails to provide such notice, the sentence shall be computed from the date of such remittitur.
3. If a defendant has been convicted and sentenced but, because of his or her failure or inability to post bond or bail for any reason, he or she has been incarcerated pending the prosecution of an appeal to any court, the time of the original imposition of his or her sentence until the time when the remittitur of the appellate court is made the judgment of the court in which the conviction is had shall be counted as time spent under sentence for all purposes.

(Ga. L. 1931, p. 165, § 1; Code 1933, § 27-2505; Ga. L. 1965, p. 230, § 1; Ga. L. 2020, p. 361, § 2/HB 984.)

The 2020 amendment, effective January 1, 2021, designated the existing provisions as subsections (a) - (c); added the last two sentences in subsection (b); and, in subsection (c), inserted "or her" twice and "or she".

- 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).

JUDICIAL DECISIONS

Intent.

- Before enactment of former Code 1933, § 27-2505 (see O.C.G.A. § 17-10-9), sentences did not begin to run until the defendant was actually delivered to the penitentiary or chain gang and no credit was received for the time which may have been previously spent by such defendant in jail. It was this evil which that section sought to remedy. Aldredge v. Potts, 187 Ga. 290, 200 S.E. 113 (1938).

Under a rational construction of former Code 1933, § 27-2505 (see O.C.G.A. § 17-10-9), the statute's sole purpose was to give a defendant credit for time involuntarily spent in jail after sentence. Goble v. Reese, 214 Ga. 697, 107 S.E.2d 175 (1959).

- Defendant was entitled to credit for time already served, notwithstanding the trial court's statement that no credit would be given since credit is computed and applied by the pre-sentence and post-sentence custodians, and a trial court cannot take the credit away. Johnson v. State, 248 Ga. App. 454, 546 S.E.2d 562 (2001).

Defendant's claim for credit for time served was cognizable only in a mandamus or injunction action because the defendant did not contest the validity of the entry of the defendant's guilty plea and it was well beyond time to appeal any such claim. Beasley v. State, 255 Ga. App. 522, 566 S.E.2d 333 (2002).

Trial court erred in sentencing the defendant by specifying that the defendant's credit for time served would not begin until December 5, 2008, the date probation for another offense expired because a trial judge has no authority to interfere with the administrative duties of the correctional custodians and the Georgia Department of Corrections to determine and award credit for time served. Watts v. State, 321 Ga. App. 289, 739 S.E.2d 129 (2013).

- Only reasonable construction of the term "Supreme Court" in this section meant the Georgia Supreme Court and not the United States Supreme Court. Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978).

- Provision in O.C.G.A. §§ 17-10-9 and17-10-11 for crediting prison sentences with the time spent in confinement applies only to persons who would not be confined but for their charges which give rise to the sentence for which credit is sought. Spann v. Whitworth, 262 Ga. 21, 413 S.E.2d 713 (1992); Wilson v. State, 273 Ga. 97, 538 S.E.2d 429 (2000).

- Since the defendant was not in jail or otherwise incarcerated at the time of the defendant's trial under the indictment, this section, relating to the time from which a sentence shall be computed, was inapplicable. Crosby v. Courson, 181 Ga. 475, 182 S.E. 590 (1935).

This section, which provided that it was the duty of judges to specify that the term of sentence shall be computed from the date of sentence in all cases when the defendant was incarcerated or had an appeal pending, did not apply since the defendant was not incarcerated and had no appeal pending. Norman v. State, 87 Ga. App. 442, 74 S.E.2d 131 (1953).

- Obvious intent of this section was that a sentence shall not begin when the remittitur from the appellate court is made the judgment of the trial court for the defendants who are then still at large. Those defendants at large shall not receive credit for any time before entering upon the defendants' incarceration or other penalty. Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978); Serpentfoot v. State, 241 Ga. App. 35, 524 S.E.2d 516 (1999).

Sentence continues to run while being served on probation. Goble v. Reese, 214 Ga. 697, 107 S.E.2d 175 (1959).

- Sentence is not voided because of the state's delay in attempting to enforce the sentence. Of course, there is some point at which the state's unreasonable delay will be deemed to prevent later enforcement of the sentence. Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978).

Trial court properly enforced the prison sentence imposed against the defendant, even though over six years had passed since the sentence's imposition, upon the state's motion for remand to the custody of the Department of Corrections, as the defendant did not offer to begin serving the sentence when the convictions entered were affirmed on appeal, but acquiesced in the delay of the execution of the sentence by continuing to report to the pretrial services department; hence, the defendant could not claim that the sentence began to run when the defendant should have, but failed to offer to serve the sentence. Cronan v. State, 282 Ga. App. 408, 638 S.E.2d 827 (2006), cert. denied, No. S07C0462, 2007 Ga. LEXIS 144 (Ga. 2007).

- If the state makes no move to initiate the sentence, the defendant must offer oneself up if the defendant wishes the term to begin to run. An offer which is premature because the sentence may not yet be put into effect is ineffective and may not be deemed continuing. The defendant's offer must come at a time when the sentence may lawfully be put into effect. Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978).

Cited in Crider v. Clark, 182 Ga. 371, 185 S.E. 326 (1936); Roberts v. Weeks, 182 Ga. 346, 185 S.E. 338 (1936); Dixon v. Beaty, 188 Ga. 689, 4 S.E.2d 633 (1939); Buice v. Bryan, 212 Ga. 508, 93 S.E.2d 676 (1956); James v. State, 120 Ga. App. 317, 170 S.E.2d 303 (1969); Smith v. Ault, 230 Ga. 433, 197 S.E.2d 348 (1973); Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980).

OPINIONS OF THE ATTORNEY GENERAL

What constitutes being "otherwise incarcerated."

- In order to be "otherwise incarcerated" under this section, one must be confined by competent public authority or under due legal process. 1968 Op. Att'y Gen. No. 68-93.

Confinement of a defendant in a state hospital would not come within the legal definition of the term "otherwise incarcerated." 1968 Op. Att'y Gen. No. 68-93.

This section did not relate to time spent in jail prior to trial. 1970 Op. Att'y Gen. No. 70-127.

While this section provides that a sentence may not commence prior to the date of imposition, the statute did not affect computation of credit for time spent in jail awaiting trial. 1975 Op. Att'y Gen. No. 75-3.

- When a sentence is imposed to run concurrently with a sentence already being served, the subsequent sentence runs concurrently with the unexecuted portion of the previous sentence. 1975 Op. Att'y Gen. No. 75-3.

- State sentence begins to run on day and date of sentence and is not tolled by an informal release to the federal marshal and subsequent trial, conviction, and imprisonment in the federal penitentiary. 1945-56 Op. Att'y Gen. p. 513.

State prison sentence of an individual currently in the custody of federal authorities does not begin to run until the individual is released from the federal authorities and returned to the state penal system. 1967 Op. Att'y Gen. No. 67-191.

State sentence should be computed from the date of rendition unless the sentence specifies that the sentence is to run consecutively to the federal sentence. 1967 Op. Att'y Gen. No. 67-121.

- While O.C.G.A. § 17-10-9 provides that a sentence may not commence prior to the date of imposition, the statute does not affect computation of credit for time spent in jail awaiting trial. 1987 Op. Att'y Gen. No. 87-19.

- When custody of a felon 16 years of age is transferred by court order from the Department of Human Resources to the Department of Offender Rehabilitation, the sentence begins to run when the youth is placed under the custody of the Department of Human Resources. 1975 Op. Att'y Gen. No. 75-78.

In computing parole consideration eligibility, those persons who are sentenced in superior court on felony charges and are committed to the Division for Children and Youth (now Department of Human Resources) until their seventeenth birthday, are entitled to "jail time" or other time in custody in the same manner as adult offenders as required by this section. 1980 Op. Att'y Gen. No. 80-142.

Hospitalization for physical or mental disorder does not interrupt the running of the sentence. 1954-56 Op. Att'y Gen. p. 515.

- Prisoner's sentence is credited with time intervening between the original sentence and granting of motion for new trial. 1948-49 Op. Att'y Gen. p. 287.

- If appellant is neither incarcerated nor placed under supervision pending the appeal, the time spent awaiting completion of the appeal is not credited toward service of the sentence. 1975 Op. Att'y Gen. No. 75-30.

- Board of Corrections (now Board of Offender Rehabilitation) should disregard fixed antecedent computation dates in those cases in which no appeal has been taken and in which sentence has been imposed on or after July 1, 1970. 1970 Op. Att'y Gen. No. 70-176.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 706 et seq., 736, 740.

- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2183 et seq.

- Power to change time for commencement of sentence, 3 A.L.R. 1572.

Effect of attempt by court to fix the beginning or end of period of imprisonment, 69 A.L.R. 1177.

What constitutes commencement of service of sentence, depriving court of power to change sentence, 159 A.L.R. 161.

Right to credit for time served under erroneous or void sentence or invalid judgment of conviction necessitating new trial, 35 A.L.R.2d 1283.

Effect of invalidation of sentence upon separate sentence which runs consecutively, 68 A.L.R.2d 712.

Right to credit on state sentence for time served under sentence of court of separate jurisdiction where state court fails to specify in that regard, 90 A.L.R.3d 408.

Power of state court, during same term, to increase severity of lawful sentence - modern status, 26 A.L.R.4th 905.

Power of court to increase severity of unlawful sentence - modern status, 28 A.L.R.4th 147.

Effect of delay in taking defendant into custody after conviction and sentence, 76 A.L.R.5th 485.