2021 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-34.1. Revocation of Probated or Suspended Sentence; Alternative Sentencing; Burden of Proof; Length of Probation Supervision

1. For the purposes of this Code section, the term "special condition of probation or suspension of the sentence" means a condition of a probated or suspended sentence which:
   1. Is expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and
   2. Is identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and require the defendant to serve up to the balance of the sentence in confinement.
2. A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.
3. At any revocation hearing, upon proof that the defendant has violated any general provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for such alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.
4. If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant's admission is the commission of a felony offense, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense constituting the violation of the probation. For purposes of this Code section, the term "felony offense" means:
   1. A felony offense;
   2. A misdemeanor offense committed in another state on or after July 1, 2010, the elements of which are proven by a preponderance of evidence showing that such offense would constitute a felony if the act had been committed in this state; or
   3. A misdemeanor offense committed in another state on or after July 1, 2010, that is admitted to by the defendant who also admits that such offense would be a felony if the act had been committed in this state.
5. If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant's admission is the violation of a special condition of probation or suspension of the sentence, the court may revoke the probation or suspension of the sentence and require the defendant to serve the balance or portion of the balance of the original sentence in confinement.
6. The payment of restitution or reparation, costs, or fines ordered by the court may be payable in one lump sum or in periodic payments, as determined by the court after consideration of all the facts and circumstances of the case and of the defendant's ability to pay. Such payments shall, in the discretion of the sentencing judge, be made either to the clerk of the sentencing court or, if the sentencing court is a probate court, state court, or superior court, to the DCS office serving such court.
7. In no event shall an offender be supervised on probation for more than a total of two years for any one offense or series of offenses arising out of the same transaction, whether before or after confinement, except as provided by paragraph (2) of subsection (a) of Code Section 17-10-1 and subsection (g) of Code Section 42-8-34.

(Code 1981, §42-8-34.1, enacted by Ga. L. 1988, p. 1911, § 1; Ga. L. 1989, p. 855, § 1; Ga. L. 1992, p. 3221, § 6; Ga. L. 2001, p. 94, § 7; Ga. L. 2010, p. 318, § 1/HB 329; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2016, p. 443, § 8-5/SB 367.)

The 2015 amendment, effective July 1, 2015, in subsection (c), deleted "intensive probation," following "community service," in the first sentence, and substituted "such alternatives" for "said alternatives" in the second sentence; substituted "the DCS office serving such" for "the probation office serving said" near the end of the last sentence in subsection (f); and added "and subsection (g) of Code Section 42-8-34" at the end of subsection (g). See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, deleted "diversion centers," following "community service," in the middle of the first sentence of subsection (c).

- Ga. L. 2001, p. 94, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the '2001 Crime Prevention 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 annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). 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 Ga. St. U. L. Rev. 139 (2016). For note on 1989 amendment of this Code section, see 6 Ga. St. U.L. Rev. 287 (1989). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 47 (2001).

ANALYSIS

• General Considerations
• Evidence Sufficient for Revocation
• Evidence Insufficient for Revocation

OPINIONS OF THE ATTORNEY GENERAL

Violation of diversion center regulations.

- If the conditions of probation include a requirement that the probationer obey the rules and regulations of a diversion center, up to six months of probation time may be revoked under subsection (b) of O.C.G.A. § 42-8-34.1 if the probationer violates those rules and regulations. 1988 Op. Att'y Gen. No. U88-16.

"Two year" provision of subsection (b) of O.C.G.A. § 42-8-34.1 would not apply to probation violations committed by persons assigned to a diversion center as a part of a probated sentence. 1988 Op. Att'y Gen. No. U88-16.

- While misdemeanants may only be referred to probation centers upon initial sentencing pursuant to O.C.G.A. § 42-8-35.4, misdemanants may also be referred to such facilities pursuant to probation revocation proceedings under O.C.G.A. § 42-8-34.1 and after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A). 1999 Op. Att'y Gen. No. 99-14.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 488, 531, 535, 536.

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

- Who may institute proceedings to revoke probation, 21 A.L.R.5th 275.

Right and sufficiency of allocation in probation revocation proceeding, 70 A.L.R.5th 533.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 92 A.L.R.6th 1.