2021 Georgia Code
Title 42 - Penal Institutions
Chapter 5 - Correctional Institutions of State and Counties
Article 5 - Awarding Earned-Time Allowances
§ 42-5-100. Termination of Board's Power to Award Earned-Time Allowances

The earned-time allowances, which could have been awarded by the board to inmates based upon the performance of the inmate, in effect on December 31, 1983, shall not apply to:

1. Those persons who commit crimes on or after January 1, 1984, and who are subsequently convicted and sentenced to the custody of the board;
2. Those persons who have committed a crime prior to January 1, 1984, but who have not been convicted and sentenced as of December 31, 1983, and who are subsequently sentenced to the custody of the board, including those whose sentences have been probated or suspended, on or after January 1, 1984; however, such persons shall receive the full benefit of the earned-time allowances, in effect on December 31, 1983, and shall receive a release or discharge date computed as if they had been sentenced to the custody of the board, prior to December 31, 1983; or
3. Those persons previously sentenced to the custody of the board, including those whose sentences have been probated or suspended, as of December 31, 1983; however, such persons shall receive the full benefit of the earned-time allowances in effect on December 31, 1983, and shall receive a release or discharge date the same as reflected in the records of such person on December 31, 1983, less any creditable earned time that such person could have earned as a result of forfeited earned time.

(Code 1981, §42-5-100, enacted by Ga. L. 1983, p. 1340, § 2; Ga. L. 1984, p. 22, § 42.)

- Earned time allowance for persons sentenced for a misdemeanor of a high and aggravated nature, § 17-10-4.

- Ga. L. 1983, p. 1340, § 2, repealed former Code Section 42-5-100, pertaining to the enumeration of powers of the board regarding granting of earned-time allowances, and enacted the present Code section. The former Code section was based on Ga. L. 1976, p. 949, § 2; Ga. L. 1978, p. 985, §§ 2-4; and Ga. L. 1980, p. 2002, § 1.

- For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Penal Code 1910, § 1221, former Code 1933, §§ 77-320 and 77-320.1, and under Ga. L. 1956, p. 161, as it read prior to revision by Ga. L. 1976, p. 949, § 1 are included in the annotations for this Code section.

When an inmate's good-time is forfeited, the following constitutionally minimum procedures are required: (1) a hearing; (2) written notice of the charges served at least 24 hours in advance of the hearing; and (3) a written report of the hearing setting out the reasons for the action taken and the evidence relied on. The prisoner may be permitted to call witnesses and present evidence consistent with the needs of the institution. There is no constitutional right to confrontation, cross-examination, or counsel. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under former Code 1933, § 77-320).

When disciplinary actions are taken against a prisoner, the Constitution requires only that the hearing be held before final disciplinary action is taken and final forfeiture occurs. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under former Code 1933, § 77-320).

- Ga. L. 1978, p. 985 did not repeal by implication Ga. L. 1970, p. 236 (see now O.C.G.A. § 17-10-4) (relating to punishment for misdemeanors of a high and aggravated nature). Sutton v. Garmon, 245 Ga. 685, 266 S.E.2d 497 (1980) (decided under Ga. L. 1978, p. 985).

- Sentence of confinement for a period of two years is fully served at the time the executive department releases the prisoner, and any attempt by a court to impose the court's will over the executive department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the executive department. Johns v. State, 160 Ga. App. 535, 287 S.E.2d 617 (1981) (decided under former Code 1933, § 77-320.1)

- Defendant's service under the federal system, during which time the defendant was serving a four-year probated sentence imposed by the state superior court, did not enable the defendant to earn statutory good-time and extra good-time allowances toward the defendant's probated state sentence. Wellons v. State, 164 Ga. App. 100, 296 S.E.2d 397 (1982) (decided under former Code 1933, § 77-320).

- Even though a prisoner is not tried for the statutory offense of escape in the courts, the defendant may be found guilty by the Department of Corrections. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under former Code 1933, § 77-320).

- When a person was convicted of two felonies, and served the person's sentences concurrently, so that the person was entitled to be released upon termination of the longer sentence, the person could not have such term reduced on account of good conduct by calculating an allowance for good conduct on each of the two sentences, and deducting the aggregate time from the longer sentence. Chattahoochee Brick Co. v. Goings, 135 Ga. 529, 69 S.E. 865, 1912A Ann. Cas. 263 (1910) (decided under former Penal Code 1910, § 1221).

- One is only entitled to extra good time if one is a "deserving and exemplary" prisoner, and only then in accordance with the rules and regulations of the Board of Corrections. Balkcom v. Sellers, 219 Ga. 662, 135 S.E.2d 414 (1964) (decided under Ga. L. 1956, p. 161).

- The action is upon sentences then being served and does not relate to the imposition of a sentence after conviction. Potts v. State, 134 Ga. App. 512, 215 S.E.2d 276 (1975) (decided under Ga. L. 1956, p. 161).

- Judge has no authority to say what good-time or extra good-time allowance a prisoner shall be given as the law vests that authority in the Board of Corrections for prisoners under its jurisdiction. Grimes v. Stewart, 222 Ga. 713, 152 S.E.2d 369 (1966) (decided under Ga. L. 1956, p. 161).

When an inmate's good time is forfeited the following constitutionally minimum procedures are required: (1) a hearing; (2) written notice of the charges served at least 24 hours in advance of the hearing; and (3) a written report of the hearing setting out the reasons for the action taken and the evidence relied on. The prisoner may be permitted to call witnesses and present evidence consistent with the needs of the institution. There is no constitutional right to confrontation, cross-examination, or counsel. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under Ga. L. 1956, p. 161).

When disciplinary actions are taken against a prisoner, the Constitution requires only that the hearing be held before final disciplinary action is taken and final forfeiture occurs. Story v. Ault, 238 Ga. 69, 230 S.E.2d 875 (1976) (decided under Ga. L. 1956, p. 161).

- Punishment by forfeiture of good-time allowances for escape is executive punishment and does not prevent prosecution for the same offense in a court of law. Mincey v. Hopper, 233 Ga. 378, 211 S.E.2d 283 (1974) (decided under Ga. L. 1956, p. 161).

There is no merit in the contention that an appellant's good-time allowance could not be forfeited because of the appellant's escape without the appellant's trial in a court of law for the crime of escape. Mincey v. Hopper, 233 Ga. 378, 211 S.E.2d 283 (1974) (decided under Ga. L. 1956, p. 161).

Probationer is not a prisoner within meaning of section and, therefore, one serving a sentence on probation is not entitled as a matter of law to statutory or extra good-time allowances. Balkcom v. Gaulding, 216 Ga. 410, 116 S.E.2d 545 (1960) (decided under Ga. L. 1956, p. 161).

Cited in Balkcom v. Heptinstall, 152 Ga. App. 539, 263 S.E.2d 275 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1956, p. 161, as it read prior to revision by Ga. L. 1976, p. 949, §§ 1, 2 are included in the annotations for this Code section.

Fundamental public policy underlying section is orderly administration of penitentiary service of prisoners, which is enhanced by a system of rewards in which the prisoner participates through a reduction of time served; the state also benefits through a lessening of ever constant discipline problems. The state receives no benefit by awarding statutory good time to an individual not "in any prison or county public works camp (now county correctional institution) operated under the jurisdiction of the board." This section was passed to benefit both the state and the prisoner. Since the state is not benefited directly when the prisoner is not under the jurisdiction of the board, the application of the provision dealing with statutory good time would be unauthorized. 1963-65 Op. Att'y Gen. p. 143 (decided under Ga. L. 1956, p. 161).

- O.C.G.A. § 42-5-100, which terminates the power of the Board of Offender Rehabilitation (Corrections) to provide for earned-time allowances for inmates under its supervision or custody, has no effect on the powers of the State Board of Pardons and Paroles to grant earned time to persons serving their sentences on parole or other conditional release, and further has no effect on the board's authority to withhold or to forfeit, in whole or in part, any such earned-time allowances. 1984 Op. Att'y Gen. No. 84-7.

- See 1986 Op. Att'y Gen. No. 86-7.

Legislative intent behind this section is to provide for the uniform computation of sentences; therefore, an inmate who is held by a county, pending the appeal of a felony conviction, should benefit from the earned-time provisions in the computation of his release date. 1978 Op. Att'y Gen. No. U78-46 (decided under Ga. L. 1976, p. 949, §§ 1 and 2).

- As a natural concomitance of the duties imposed under former Code 1933, §§ 77-101, 77-110, 77-111, and Ga. L. 1976, p. 949, § 2 (see now O.C.G.A. §§ 42-4-1,42-4-4, and42-5-100), the sheriff would be responsible for calculating sentences of felony prisoners held in the county jail pending appeal, and would be the appropriate discharging authority should a sentence expire before a prisoner was transferred to the custody of state authorities. 1978 Op. Att'y Gen. No. U78-46.

- Inmate sentenced under Youthful Offender Act (O.C.G.A. Ch. 7, T. 42) may also be classified as a habitual offender under this section for purposes of sentence computation. Further, in the rare case when a youthful offender is also classified as a habitual offender, earned-time adjustment for habitual offenders should be used in computing the offender's unconditional release date. 1981 Op. Att'y Gen. No. 81-62.

There are two types of "earned time": "parole earned time" granted by the State Board of Pardons and Paroles pursuant to its rules and regulations, and "incarcerated earned time" granted by the Department of Offender Rehabilitation (Corrections) pursuant to its rules and regulations. 1980 Op. Att'y Gen. No. 80-113.

Awarding of earned time against probated sentence would frustrate intent of sentencing judge who has made a previous judicial determination under §§ 17-10-1 and42-8-34 that the particular individual should be subject to a specific period of supervision and control while he is being reintegrated into society. 1982 Op. Att'y Gen. No. 82-58.

- The crediting of earned time to misdemeanants confined to county correctional facilities under former subsection (d), applied in the situation where a felon was sentenced to confinement in a county jail as a condition of probation. 1982 Op. Att'y Gen. No. U82-47.

- With the limited exception of § 42-6-5 relating to temporary custody of convicted inmates in county facilities, good-time allowances and deductions therefrom can only be computed when inmates are under the jurisdiction and control of the institutions operated by the Department of Offender Rehabilitation (Corrections); moreover, with the limited exception of § 42-6-5, neither sheriffs nor the department can take jail credit away from inmates who have misbehaved in jails prior to their being sent to correctional institutions. 1972 Op. Att'y Gen. No. 72-61.

- The Board of Offender Rehabilitation (Corrections) has authority to adopt a policy under which the commissioner may designate penal systems other than those operated by the board as places of confinement for service of state sentences when concurrent sentences are imposed; this practice would enable a prisoner to earn all possible good time even though not actually serving his sentence in a state institution. 1963-65 Op. Att'y Gen. p. 240.

Where one has probated sentence to serve upon completion of in-prison time, probated sentence with its accompanying supervision begins upon discharge of inmate from confinement and continues to run through the period of time originally prescribed for the probated sentence; to allow the inmate to begin his probated sentence when he ordinarily would have been discharged from his in-prison sentence without the good-time allowances, is to allow the inmate to return to society without the benefit and guidance of supervision and without the help the court needs to become aware of violations by the probationer. 1971 Op. Att'y Gen. No. 71-48.

- Requests from a county probation department for the retention of custody of an inmate pending the arrival of a deputy sheriff or a probation officer must be disregarded by the wardens. 1969 Op. Att'y Gen. No. 69-151.

- Board of Corrections has the power to promulgate rules and regulations as to good-time allowances which are applicable to prisoners transferred to Central State Hospital due to mental illness. 1975 Op. Att'y Gen. No. 75-146.

Time spent by felon incarcerated under Department of Human Resources not to be considered when computing good-time allowances; rather, good time should be computed from the date the felon is received by an institution under the Board of Corrections' jurisdiction. 1975 Op. Att'y Gen. No. 75-78.

Because a sentence begins running from the time of incarceration under the Department of Human Resources, the prisoner must serve one-third of the time to which he has been sentenced, including the time he has spent in the custody of the Department of Human Resources before becoming eligible for parole. 1975 Op. Att'y Gen. No. 75-78.

- The fact that a prisoner was acquitted in a trial on a charge of escape has no legal effect on the authority of the Board of Offender Rehabilitation (Corrections) to deduct from prisoner's good-time allowance for such an escape. 1967 Op. Att'y Gen. No. 67-234.

- The word "only" in § 17-10-4 should be read as negating any implication that good-time allowances for persons sentenced under that section should be computed in the same manner as for persons convicted of ordinary misdemeanors under this section. 1972 Op. Att'y Gen. No. 72-138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 204-217.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 142-151.

- Withdrawal, forfeiture, modification, or denial of good-time allowance to prisoner, 95 A.L.R.2d 1265.