2021 Georgia Code
Title 42 - Penal Institutions
Chapter 8 - Probation
Article 2 - State-Wide Probation System
§ 42-8-38. Arrest or Graduated Sanctions for Probationers Violating Terms; Hearing; Disposition of Charge; Procedure When Probation Revoked in County Other Than That of Conviction

1. Whenever, within the period of probation, an officer believes that a probationer under his or her supervision has violated the terms of probation in a material respect, if graduated sanctions have been made a condition of probation by the court, the officer may impose graduated sanctions as set forth in Code Section 42-8-23 to address the specific conduct leading to such violation or, if the circumstances warrant, may arrest the probationer without warrant, wherever found, and return the probationer to the court granting the probation or, if under supervision in a county or judicial circuit other than that of conviction, to a court of equivalent original criminal jurisdiction within the county wherein the probationer resides for purposes of supervision. Any officer authorized by law to issue warrants may issue a warrant for the arrest of the probationer upon the affidavit of one having knowledge of the alleged violation, returnable forthwith before the court in which revocation proceedings are being brought.
2. The court, upon the probationer being brought before it, may commit the probationer or release the probationer with or without bail to await further hearing, or it may dismiss the charge. If the charge is not dismissed at this time, the court shall give the probationer an opportunity to be heard fully at the earliest possible date on his or her own behalf, in person or by counsel, provided that, if the revocation proceeding is in a court other than the court of the original criminal conviction, the sentencing court shall be given ten days' written notice prior to a hearing on the merits.
3. After the hearing, the court may revoke, modify, or continue the probation. If the probation is revoked, the court may order the execution of the sentence originally imposed or of any portion thereof. In such event, the time that the defendant has served under probation shall be considered as time served and shall be deducted from and considered a part of the time he or she was originally sentenced to serve.
4. In cases where the probation is revoked in a county other than the county of original conviction, the clerk of court in the county revoking probation may record the order of revocation in the minutes of the court, which recordation shall constitute sufficient permanent record of the proceedings in such court. The clerk shall send copies of the order revoking probation to DCS and the Department of Corrections to serve as a temporary commitment and shall send the original order revoking probation and all other papers pertaining thereto to the county of original conviction to be filed with the original records. The clerk of court of the county of original conviction shall then issue a formal commitment to the Department of Corrections.

(Ga. L. 1956, p. 27, § 12; Ga. L. 1960, p. 857, § 1; Ga. L. 1966, p. 440, § 1; Ga. L. 2012, p. 899, § 7-11/HB 1176; Ga. L. 2015, p. 422, § 4-1/HB 310.)

The 2012 amendment, effective July 1, 2012, in the first sentence of subsection (a), twice inserted "or her" near the beginning, substituted "respect, if graduated sanctions have been made a condition of probation by the court, the probation supervisor may impose graduated sanctions as set forth in Code Section 42-8-23 to address the specific conduct leading to such violation or, if the circumstances warrant, may" for "respect, he may", and substituted "return the probationer" for "return him". See Editor's notes for applicability.

The 2015 amendment, effective July 1, 2015, in subsection (a), in the first sentence, substituted "an officer" for "a probation supervisor" near the beginning, substituted "violated the terms of probation" for "violated his or her probation" near the middle, substituted "officer" for "probation supervisor" in the middle; in subsection (b), in the first sentence, substituted "the probationer" for "him" twice, and added a comma following "hearing", inserted "or her" in the second sentence; inserted "or she" in the last sentence of subsection (c); and in subsection (d), in the first sentence, substituted "minutes of the court" for "judge's minute docket" in the middle, and substituted "such court" for "that court" near the end, substituted "DCS and the Department of Corrections" for "the department" in the second sentence, and substituted "Department of Corrections" for "department" in the last sentence. See Editor's notes for applicability.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this 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 article, "A Review of Georgia's Probation Laws," see 6 Ga. St. B.J. 255 (1970). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For comment criticizing Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975), see 27 Mercer L. Rev. 325 (1975).

ANALYSIS

• General Consideration
• Probation Revocation Procedure
• A. In General
• B. Notice
• C. Hearing
• D. Right to Counsel
• E. Trial by Jury
• F. Search and Seizures
• G. Use of Habeas Corpus
• Quantum of Proof Needed
• Evidence Sufficient for Revocation
• Evidence Insufficient for Revocation
• Computation of and Credit for Time Served
• Decisions Under Prior Law

OPINIONS OF THE ATTORNEY GENERAL

Affidavit required for arrest of probation violator.

- Valid warrant for arrest of probation violator must be accompanied by affidavit, and to be valid, the affidavit must be sworn to under oath and signed by affiant. 1981 Op. Att'y Gen. No. 81-99.

- If a probation violator is arrested without a warrant, it would be incumbent upon the probation supervisor or other arresting officer to procure a warrant within the 48-hour period of time specified in O.C.G.A. § 17-4-62. 1988 Op. Att'y Gen. No. U88-14.

- Affiant need not have personal knowledge of information to which the affiant swears when executing affidavit for arrest of probation violator. 1981 Op. Att'y Gen. No. 81-99.

- Probation violator may be returned to sentencing court for hearing or the violator may have hearing in court of equivalent original criminal jurisdiction within county wherein 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.

- This offense is one for which those charged with a violation are to be fingerprinted. 1996 Op. Att'y Gen. No. 96-17.

Offense under O.C.G.A. § 42-8-38 requires fingerprinting only in those instances in which an adverse action is taken against the probationer such that the adverse action actually alters the terms of his or her probation. 1998 Op. Att'y Gen. No. 98-20.

- Only the circuit imposing first offender probation may revoke that period of probation, even though supervision has been transferred to another judicial circuit. 1980 Op. Att'y Gen. No. 80-79.

- Probated sentence may be revoked if the sentence being revoked is in effect and being served at the time the order of revocation is made, even if the act constituting the violation was committed prior to the commencement of service of the probated sentence; provided that the violation was committed subsequent to the imposition of sentence. 1974 Op. Att'y Gen. No. U74-107.

- Once a court revokes probation and orders serving of sentence, the clerk sends notice to Board of Offender Rehabilitation (Corrections) and the state has an obligation to accept such persons into the state penal system. 1982 Op. Att'y Gen. No. 82-33.

- 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.

- Issuance of warrant against person serving probated sentence does not stop running of time of the probated sentence; if probated sentence is revoked pursuant to the provisions for a hearing and judicial determination as set forth by this section, then the length of time to be served on the original sentence shall be time of sentence remaining after deduction is made for time which the probationer served under probation. 1967 Op. Att'y Gen. No. 67-391.

- Upon revocation of probated sentence, offender cannot be returned to confinement for period of time in excess of original probationary period. 1974 Op. Att'y Gen. No. U74-107.

- This section does not mean that in every case when probation is revoked, without more, the prisoner is not to receive credit for the time served outside the confines of the jail or prison, but it was the intention of the General Assembly that the judge revoking probation have the power to either give or deny such credit; it, therefore, is necessary to refer to the language of the order revoking probation. 1957 Op. Att'y Gen. p. 201.

- After revocation of probated sentence, in determining remaining balance of the sentence, the defendant is credited with the time on probation; however, to prevent the defendant from receiving double credit for this time, jail time credit should not be awarded toward the period of confinement ordered after revocation of a probated sentence. 1973 Op. Att'y Gen. No. 73-1.

- When order revoking probation is ambiguous with respect to whether prisoner should or should not receive credit for time served outside prison, it would be necessary to give credit for such time, under the rulings that an order of probation, and the order revoking the probation, is a part of the sentence and in cases of ambiguity, a sentence is to be construed so as to give the benefit of the doubt to the accused. 1957 Op. Att'y Gen. p. 201.

- For discussion of the effect of Stephens v. State, 245 Ga. 835, 268 S.E.2d 330 (1980), which decided whether, upon revocation of probation entered under the terms of the First Offender Act, O.C.G.A. § 42-8-60, a criminal defendant was entitled to credit for time already spent on first offender probation, see 1983 Op. Att'y Gen. No. 83-6.

- Probated sentence preceded by term of imprisonment begins upon offender's fulfillment, including parole supervision, of the imprisonment obligation. 1974 Op. Att'y Gen. No. U74-107.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 526-536.

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

- Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.

Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.

Propriety of revocation of probation for subsequent criminal conviction which is subject to appeal, 76 A.L.R.3d 588.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 77 A.L.R.3d 636.

Admissibility, in state probation revocation proceedings, of incriminating statement obtained in violation of Miranda rule, 77 A.L.R.3d 669.

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.

Admissibility of hearsay evidence in probation revocation hearings, 11 A.L.R.4th 999.

Power of court, after expiration of probation term, to revoke or modify probation for violations committed during the probation term, 13 A.L.R.4th 1240.

Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 A.L.R.4th 755.

Defendant's right to credit for time spent in halfway house, rehabilitation center, or other restrictive environment as condition of probation, 24 A.L.R.4th 789.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.