2021 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-34. Sentencing Hearings and Determinations; Presentence Investigations; Payment of Fees, Fines, and Costs; Post-Conviction, Presentence Bond; Continuing Jurisdiction; Transferal of Probation Supervision

1. Any court of this state which has original jurisdiction of criminal actions, except municipal courts and probate courts, in which the defendant in a criminal case has been found guilty upon verdict or plea or has been sentenced upon a plea of nolo contendere, except for an offense punishable by death or life imprisonment, may, at a time to be determined by the court, hear and determine the question of the probation of such defendant.
2. Prior to the sentencing hearing, the court may refer the case to an officer of the circuit in which the court is located for investigation and recommendation. The court, upon such reference, shall direct an officer to make an investigation and to report to the court, in writing at a specified time, upon the circumstances of the offense and the criminal record, social history, and present condition of the defendant, together with the officer's recommendation; and it shall be the duty of such officer to carry out the directive of the court.
3. Subject to the provisions of subsection (a) of Code Section 17-10-1 and subsection (f) of Code Section 17-10-3, if it appears to the court upon a hearing of the matter that the defendant is not likely to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court in its discretion shall impose sentence upon the defendant but may stay and suspend the execution of the sentence or any portion thereof or may place him or her on probation under the supervision and control of the officer for the duration of the sentence. The period of probation or suspension shall not exceed the maximum sentence of confinement which could be imposed on the defendant.
4. 1. In every case that a court of this state or any other state sentences a defendant to probation or any pretrial release or diversion program under the supervision of DCS, in addition to any fine or order of restitution imposed by the court, there shall be imposed a probation fee as a condition of probation, release, or diversion in the amount equivalent to $23.00 per each month under supervision, and in addition, a one-time fee of $50.00 if such defendant was convicted of any felony. The probation fee may be waived or amended after administrative process by DCS and approval of the court, or upon determination by the court, as to the undue hardship, inability to pay, or any other extenuating factors which prohibit collection of the fee; provided, however, that the imposition of sanctions for failure to pay fees shall be within the discretion of the court through judicial process or hearings. Probation fees shall be waived on probationers incarcerated or detained in a Department of Corrections or other confinement facility which prohibits employment for wages. All probation fees collected by DCS shall be paid into the general fund of the state treasury, except as provided in subsection (f) of Code Section 17-15-13, relating to sums to be paid into the Georgia Crime Victims Emergency Fund. Any fees collected by the court under this paragraph shall be remitted not later than the last day of the month after such fee is collected to the Georgia Superior Court Clerks' Cooperative Authority for deposit into the general fund of the state treasury.
   2. In addition to any other provision of law, any person convicted of a violation of Code Section 40-6-391 or subsection (b) of Code Section 16-13-2 who is sentenced to probation or a suspended sentence by a municipal, magistrate, probate, recorder's, mayor's, state, or superior court shall also be required by the court to pay a one-time fee of $25.00. The clerk of court, or if there is no clerk the person designated to collect fines, fees, and forfeitures for such court, shall collect such fee and remit the same not later than the last day of the month after such fee is collected to the Georgia Superior Court Clerks' Cooperative Authority for deposit into the general fund of the state treasury.
   3. In addition to any fine, fee, restitution, or other amount ordered, the sentencing court may also impose as a condition of probation for felony criminal defendants sentenced to a day reporting center an additional charge, not to exceed $10.00 per day for each day such defendant is required to report to a day reporting center; provided, however, that no fee shall be imposed or collected if the defendant is unemployed or has been found indigent by the sentencing court. The charges required by this paragraph shall be paid by the probationer directly to DCS. Funds collected by DCS pursuant to this subsection shall only be used by DCS in the maintenance and operation of the day reporting center program.
5. 1. The court may, in its discretion, require the payment of a fine, fees, or restitution as a condition of probation. Chapter 14 of Title 17 shall control when determining the amount of restitution. When probation supervision is required, the court may require the payment of a probation supervision fee as a condition of probation. In determining the financial obligations, other than restitution, to impose on the defendant, the court may consider:
      1. The defendant's financial resources and other assets, including whether any such asset is jointly controlled;
      2. The defendant's earnings and other income;
      3. The defendant's financial obligations, including obligations to dependents;
      4. The period of time during which the probation order will be in effect;
      5. The goal of the punishment being imposed; and
      6. Any other factor the court deems appropriate.
   2. The court may convert fines, statutory surcharges, and probation supervision fees to community service or educational advancement on the same basis as it allows a defendant to pay a fine through community service or educational advancement as set forth in subsection (d) of Code Section 17-10-1.
   3. 1. As used in this subsection, the term:
         1. "Developmental disability" shall have the same meaning as set forth in Code Section 37-1-1.
         2. "Indigent" means an individual who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without undue hardship for such individual or his or her dependents.
         3. "Significant financial hardship" means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months.
         4. "Totally and permanently disabled" shall have the same meaning as set forth in Code Section 49-4-80.
      2. The court shall waive, modify, or convert fines, statutory surcharges, probation supervision fees, and any other moneys assessed by the court or a provider of probation services upon a determination by the court prior to or subsequent to sentencing that a defendant has a significant financial hardship or inability to pay or that there are any other extenuating factors which prohibit payment or collection; provided, however, that the imposition of sanctions for failure to pay such sums shall be within the discretion of the court through judicial process or hearings.
      3. Unless rebutted by a preponderance of the evidence that a defendant will be able to satisfy his or her financial obligations without undue hardship to the defendant or his or her dependents, a defendant shall be presumed to have a significant financial hardship if he or she:
         1. Has a developmental disability;
         2. Is totally and permanently disabled;
         3. Is indigent; or
         4. Has been released from confinement within the preceding 12 months and was incarcerated for more than 30 days before his or her release.
6. During the interval between the conviction or plea and the hearing to determine the question of probation, the court may, in its discretion, either order the confinement of the defendant without bond or may permit his or her release on bond, which bond shall be conditioned on his appearance at the hearing and shall be subject to the same rules as govern appearance bonds. Any time served in confinement shall be considered a part of the sentence of the defendant.
7. The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of the person's probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, modify or change the probated sentence, including ordering the probationer into the sentencing options system, as provided in Article 6 of Chapter 3 of this title, at any time during the period of time prescribed for the probated sentence to run. In addition, when the judge is considering revoking a probated sentence in order to require the defendant to enter a drug court division, mental health court division, family treatment court division, or veterans court division and the length of the original sentence is insufficient to authorize such revocation, the defendant may voluntarily agree to an extension of his or her original sentence within the maximum sentence allowed by law, notwithstanding subsection (f) of Code Section 17-10-1. Such extension shall be for a period not to exceed three years, and upon completion of such specific court division program, the court may modify the terms of probation in accordance with subparagraph (a)(5)(A) of Code Section 17-10-1.
8. If a defendant is placed on probation in a county of a judicial circuit other than the one in which such defendant resides for committing any misdemeanor offense, such defendant may, when specifically ordered by the court, have probation supervision transferred to the judicial circuit of the county in which the defendant resides.

(Code 1933, § 27-2702; Ga. L. 1939, p. 285, § 4; Ga. L. 1941, p. 481, § 1; Ga. L. 1950, p. 352, §§ 1, 2; Ga. L. 1956, p. 27, § 8; Ga. L. 1958, p. 15, § 8; Ga. L. 1960, p. 1148, § 1; Ga. L. 1972, p. 604, § 7; Ga. L. 1980, p. 1136, § 1; Ga. L. 1988, p. 988, § 1; Ga. L. 1989, p. 381, §§ 2, 3; Ga. L. 1992, p. 3221, § 5; Ga. L. 1993, p. 426, § 1; Ga. L. 1998, p. 840, § 2; Ga. L. 1999, p. 1271, § 1; Ga. L. 2000, p. 1643, § 2; Ga. L. 2001, p. 4, § 42; Ga. L. 2001, p. 94, § 6; Ga. L. 2004, p. 775, § 3; Ga. L. 2004, Ex. Sess., p. ES3, § 26/HB1EX; Ga. L. 2005, p. 60, § 42/HB 95; Ga. L. 2009, p. 124, § 1/HB 344; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2016, p. 443, § 8-4/SB 367; Ga. L. 2017, p. 585, § 2-7/SB 174; Ga. L. 2018, p. 550, § 2-12/SB 407.)

The 2015 amendment, effective July 1, 2015, in subsection (a), deleted "juvenile courts," following "criminal actions, except" and deleted a comma following "municipal courts" near the middle; in subsection (b), in the first sentence, inserted "sentencing" near the beginning, and substituted "an officer" for "the probation supervisor", in the second sentence, substituted "an officer" for "the supervisor" near the middle, substituted "officer's recommendation" for "supervisor's recommendation", and substituted "such officer" for "the supervisor" near the end; inserted "or her" in the first sentence of subsections (c) and (f); in subsection (c), in the first sentence, substituted "officer" for "probation supervisor" near the end and substituted "the sentence" for "such probation" at the end; substituted "DCS" for "the department" throughout paragraph (d)(1); and, in paragraph (d)(1), substituted "if such defendant" for "where such defendant" near the end of the first sentence, and substituted "Department of Corrections" for "departmental" in the third sentence; substituted "condition of probation" for "condition precedent to probation" in subsection (e); in subsection (g), substituted "Article 6 of Chapter 3 of this title" for "Article 9 of this chapter" near the end of the second sentence and added the third and fourth sentences; in subsection (h), substituted "If a defendant" for "Notwithstanding any provision of this Code or any rule or regulation to the contrary, if a defendant" at the beginning, substituted "such defendant resides" for "he resides" in the middle, deleted "his" preceding "probation supervision", and substituted "the defendant" for "he" near the end. See Editor's notes for applicability.

The 2016 amendment, effective July 1, 2016, inserted "family treatment court division," near the middle of the third sentence of subsection (g).

The 2017 amendment, effective July 1, 2017, substituted the present provisions of subsection (e) for the former provisions, which read: "(e) The court may, in its discretion, require the payment of a fine or costs, or both, as a condition of probation."

The 2018 amendment, effective July 1, 2018, inserted "or educational advancement" twice in paragraph (e)(2).

- Sentence and punishment generally, T. 17, C. 10.

Abandonment of child generally, T. 19, C. 10.

Suspension of sentence in abandonment cases, § 19-10-1(j).

- Ga. L. 1999, p. 1271, § 2, not codified by the General Assembly, provides that the amendment by this Act shall apply with respect to sentences entered on or after that July 1, 1999.

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. 2009, p. 124, § 2/HB 344, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to persons convicted on or after July 1, 2009.

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 article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970). 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 article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 47 (2001).

ANALYSIS

• General Consideration
• Hearing and Determination
• Referral for Investigation and Recommendation
• Presentence Investigation and Report
• Condition Precedent to Probation
• Probation or Suspension of Sentence
• Continuing Jurisdiction of Sentencing Court

OPINIONS OF THE ATTORNEY GENERAL

Use of juveniles' psychological tests.

- If appropriate safeguards to protect the confidentiality of the records were undertaken, results of psychological tests administered to juveniles appearing in the juvenile court could be computerized and could be used in later court proceedings. 1983 Op. Att'y Gen. No. U83-25.

- Unless the judge expressly states in the judge's order that the judge is placing the defendant on probation, the defendant receives the sentence which is prescribed. 1968 Op. Att'y Gen. No. 68-398.

- Court originally passing sentence which includes placing the defendant on probation retains jurisdiction to revoke, rescind, or modify such probated sentence, notwithstanding that the original case was appealed when the decision of the appellate court was made the decision of trial court. 1962 Op. Att'y Gen. p. 134.

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

Inmate who actually serves three years incarceration of six-year sentence should receive only three years credit against concurrent ten-year probated sentence, and if the ten-year probated sentence is later revoked, all time served prior to revocation, including time served in prison pursuant to the separate sentence, should be considered only as probation time, meaning nonearning time under O.C.G.A. § 42-5-100. 1982 Op. Att'y Gen. No. 82-58.

- When the inmate receives a sentence of 15 years, ten years to be served in confinement and the remaining five years to be served on probation; after three years and seven months of confinement the inmate is paroled; one year of the probated portion of the sentence is revoked after parole for ten months; and parole is revoked one month later, the inmate would be entitled to full credit for the three years and seven months the inmate spent in incarceration and the ten-month period the inmate served on parole and would be required to serve the remaining five years and seven months on the original ten-year confinement sentence plus an additional one year of the probated portion of the sentence which was revoked. 1986 Op. Att'y Gen. No. 86-7.

- Probationer can be required to pay by court order, as a condition of his/her probation, a reasonable amount toward the cost of maintaining insurance to protect probation supervisors from personal liability should probationers be injured while performing court-ordered community service. 1983 Op. Att'y Gen. No. 83-18.

- Court retains jurisdiction over a probationer during the term of the probationary sentence for the purpose of changing or modifying the order placing a defendant on probation during the whole of the probationary term imposed, or until the court finds that the conditions of probation have been breached. 1945-47 Op. Att'y Gen. p. 107.

- Judge may require service of the entire sentence, even though the service of such sentence would run past the fourteenth or twenty-first birthday of the child; this conclusion is based on the fact that the age of the child designates only the length of jurisdiction to "revoke," rather than jurisdiction per se. 1963-65 Op. Att'y Gen. p. 514.

- Bastardy prosecution is not a bar to a subsequent child abandonment prosecution. 1969 Op. Att'y Gen. No. 69-323.

- Father is criminally liable, throughout the minority of his illegitimate child, for a failure to support that child. 1969 Op. Att'y Gen. No. 69-323.

Suspended sentence in abandonment and bastardy cases is permissible and the court may retain jurisdiction of the offender until the offender's child has reached the age designated by the statute. 1963-65 Op. Att'y Gen. p. 514.

- Probation violator may be returned to the sentencing court for a hearing or the violator may have a hearing in a court of equivalent original criminal jurisdiction within the county wherein the probationer resides for purposes of supervision upon the giving of ten days' written notice to the sentencing court prior to the hearing on the merits. 1965-66 Op. Att'y Gen. No. 66-257.

- Upon proper court order, the probation officers would be authorized to collect funds made payable in connection with suspended sentences. 1963-65 Op. Att'y Gen. p. 4.

- Board of Offender Rehabilitation (Corrections) does not have power to change the conditions of probation; these, including travel restrictions, could be changed only by order of the sentencing court. 1971 Op. Att'y Gen. No. U71-83.

- Board of Probation (now Board of Corrections) or its agents may not place on a prisoner, in connection with the prisoner's probation, any terms or conditions not required of the prisoner by court order passed by the trial judge at the conclusion of the hearing held for the purpose of considering the prisoner's probation. 1958-59 Op. Att'y Gen. p. 223.

- Board has jurisdiction to revoke "probation" or conditional release granted by the board; but during that period in which the inmate is serving a portion of the sentence on probation ordered by the court, the court has jurisdiction of revocation proceedings. 1970 Op. Att'y Gen. No. 70-201.

- Courts in which state offenses cannot be tried are excluded from working with the probation supervisors. 1979 Op. Att'y Gen. No. U79-27.

- County recorder's court does not have authority to place persons convicted of traffic offenses under the supervision of probation supervisors of the Department of Offender Rehabilitation (Corrections). 1979 Op. Att'y Gen. No. U79-27.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 526-536. 63A Am. Jur. 2d, Public Officers and Employees, § 460.

- 24 C.J.S., Criminal Law, §§ 1996, 1998, 2032, 2060, 2066, 2075-2078, 2144-2161.

- Power of trial court to change sentence after affirmance, 23 A.L.R. 536.

Constitutionality of statute conferring on court power to suspend sentence, 26 A.L.R. 399; 101 A.L.R. 402; 109 A.L.R. 1048; 132 A.L.R. 819; 158 A.L.R. 1315.

Imposition or enforcement of sentence which has been suspended without authority, 141 A.L.R. 1225.

Propriety and effect of court's indication to jury that court would suspend sentence, 8 A.L.R.2d 1001.

Consideration of accused's juvenile court record in sentencing for offense committed as adult, 64 A.L.R.3d 1291.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part, 73 A.L.R.3d 474.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim, 79 A.L.R.3d 976.

Propriety of conditioning probation upon defendant's posting of bond guaranteeing compliance with terms of probation, 79 A.L.R.3d 1068.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Right of defendant sentenced after revocation of probation to credit for jail time served as a condition of probation, 99 A.L.R.3d 781.

Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

Sufficiency of hearsay evidence in probation revocation hearings, 21 A.L.R.6th 771.

Defendant's right to credit for time spent in halfway house, rehabilitation center, or similar restrictive environment as condition of pretrial release, 46 A.L.R.6th 63.