O.C.G.A. § 17-10-11 (2019)

Annotations

JUDICIAL DECISIONS This section contemplates credit only for time served during proceedings for which sentence received. Tucker v. Stynchcombe, 239 Ga. 356, 236 S.E.2d 623 (1977). Applicability. - Provision in O.C.G.A. §§ 17-10-9 and 17-10-11 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). Trial court cannot modify a sentence to reflect credit for time served prior to sentence being imposed; the responsibility for computing credit for time served awaiting trial not being upon the trial court. Casario v. State, 169 Ga. App. 515, 313 S.E.2d 772 (1984); Warren v.

State, 246 Ga. App. 894, 543 S.E.2d 38 (2000). Procedure for claiming credit. - Defendant’s claim was cognizable only in a mandamus or injunction action because the defendant did not contest the validity of the entry of the 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). Defendant’s claim that the trial court did not give the defendant credit for time the defendant spent in pretrial confinement when the court sentenced the defendant after the defendant pled guilty to charges of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute was cognizable only in a mandamus or injunction action against the Commissioner of the Georgia Department of Corrections, or in a petition for habeas corpus, not in a

motion to modify the defendant’s sentence, and the trial court properly dismissed the defendant’s motion to modify the defendant’s sentence. Maldonado v. State, 260 Ga. App. 580, 580 S.E.2d 330 (2003). Trial court’s order denying the defendant’s motion for credit for time served in pretrial confinement was vacated as the defendant’s remedy lied solely with the Department of Corrections and not the courts, and then if the defendant remained aggrieved thereafter, a mandamus or injunction action could be pursued. Edwards v. State, 283 Ga. App. 305, 641 S.E.2d 193 (2007). Because the defendant raised the issues of sentencing credit in a motion for jail-credit time and not in a petition for mandamus, the motion was a nullity and should have been dismissed by the trial court and because it was a nullity there was nothing left to appeal. Warbington v. State, 303 Ga. 649, 814 S.E.2d 351 (2018). Sentencing order need not reflect consideration of confinement pending trial. - A fair reading of the provisions of Ga. L. 1972, p. 742, § 1 (see O.C.G.A. § 17-10-11) and Ga. L. 1972, p. 742, §§ 2 and 3 (see O.C.G.A. § 17-10-12) indicates that while a trial court should give consideration for time spent in confinement pending trial, these sections do not require the trial court affirmatively to reflect that consideration in the language of the sentence imposed. Turner v. State, 151 Ga. App. 631, 260 S.E.2d 756 (1979). Trial court did not exceed the court’s authority in sentencing the defendant to 48 hours confinement without credit for time served because the amount of credit given for time served is computed by the pre-sentence custodian, is awarded by the post-sentence custodian, and the trial court was, therefore, not involved in this matter. Diaz v. State, 245 Ga. App. 380, 537 S.E.2d 784 (2000). Board of Offender Rehabilitation has duty to award credit day for day. - Even if the trial court considers the time spent in pretrial confinement, and gives a defendant favorable treatment therefor, Ga. L. 1972, p. 742, §§ 2 and 3 (see O.C.G.A. § 17-10-12) affirmatively places the duty upon the Board of Of-

fender Rehabilitation to award the defendant day for day credit for time served prior to trial. Turner v. State, 151 Ga. App. 631, 260 S.E.2d 756 (1979). Amount of credit for time served prior to sentencing is to be computed by the convict’s presentence custodian, and the duty to award the credit for time served prior to trial is upon the Department of Offender Rehabilitation (now Department of Corrections). Casario v. State, 169 Ga. App. 515, 313 S.E.2d 772 (1984); Warren v. State, 246 Ga. App. 894, 543 S.E.2d 38 (2000). Credit for time spent in drug court program. - Credit towards the defendant’s sentence for time spent in the drug court program was not warranted because such credit was not part of the plea agreement, which provided that the defendant would be sentenced to ten years, with four to serve and six on probation if the defendant failed to complete the drug program, and the defendant was neither under a sentence nor in confinement while the defendant participated in the drug program. Fleming v. State, 297 Ga. 606, 774 S.E.2d 594 (2015). Credit improperly denied. - Judgment, denying the defendant credit for 16 months the defendant served in jail while awaiting trial, was in conflict with the statute and it was ordered the judgment be modified to comply with requirements of law. Addo v. State, 212 Ga. App. 163, 441 S.E.2d 486 (1994). Trial court erred in refusing to give the defendant credit for the number of days that the defendant served in custody from the date of arrest on a bench warrant for failure to appear at a scheduled court hearing until the date of trial. Allen v. State, 244 Ga. App. 377, 535 S.E.2d 347 (2000). Because O.C.G.A. § 17-10-11(a) provided that the defendant was entitled to credit for the full time served prior to sentencing in connection with the charges, because the Department of Corrections apparently relied upon the trial court’s handwritten notation in calculating the defendant’s sentencing credit, and as the notation was a gratuitous misdirection that had the effect of improperly taking credit away from the defendant,

the trial court erred in denying the defendant’s motion to correct the error. Cochran v. State, 315 Ga. App. 488, 727 S.E.2d 125 (2012), cert. denied, No. S12C1384, 2013 Ga. LEXIS 82 (Ga. 2013). Reviewability on appeal. - Defendant’s claim on direct appeal that the defendant was not properly credited for time served while awaiting trial was not properly before the appellate court as issues regarding the amount of time credited were within the purview of the Georgia Department of Corrections, pursuant to O.C.G.A. §§ 17-10-11(a) and 17-10-12, and relief should have been sought from the department; as the trial court in the court’s written sentencing order did not give gratuitous misdirection to the correctional custodians, the issue was not reviewable. Cutter v. State, 275 Ga. App. 888, 622 S.E.2d 96 (2005).

Because the amount of credit the defendant was entitled to receive was to be computed by a pre-sentence custodian, and the duty to award the credit for time served prior to trial fell upon the Department of Corrections, an appeal from an order denying the defendant clarification of an imposed sentence was not properly before the appeals court; moreover, any dissatisfaction with that relief would not be part of the defendant’s direct appeal from the original conviction, but would be in a mandamus or injunction action against the Commissioner of the Department of Corrections. Smashey v. State, 282 Ga. App. 293, 638 S.E.2d 431 (2006). Cited in Noble v. State, 132 Ga. App. 755, 209 S.E.2d 30 (1974); Fong v. State, 149 Ga. App. 456, 254 S.E.2d 460 (1979).

OPINIONS OF THE ATTORNEY GENERAL Purpose. - Remedial change made by this section was to allow credit for jail time served before formal implementation of the sentence. 1973 Op. Att’y Gen. No. 73-1. This section was applicable to sentences imposed on and after July 1, 1970. 1970 Op. Att’y Gen. No. 70-85. This section was not retroactive and did not apply to jail time prior to sentences arising before July 1, 1970, the date the law became effective. 1973 Op. Att’y Gen. No. 73-1. Effect of fixed antecedent computation dates. - 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. Credit for time in confinement awaiting trial. - Provision for credit for time spent in confinement awaiting trial was intended to apply only to confinement resulting from the charges for which the sentence in question was ultimately imposed. 1975 Op. Att’y Gen. No. 75-3. Amount of credit for time spent in confinement awaiting trial provided for in this section was intended to be limited to credit for days spent in custody in connec-

tion with the offense or acts for which sentence was imposed. 1975 Op. Att’y Gen. No. 75-3. This section was not intended to allow credit on a sentence for time spent awaiting trial on a separate and unrelated charge, and a prisoner was not entitled to credit on the prisoner’s sentence for such time. 1975 Op. Att’y Gen. No. 75-3. Individual must be given credit for the time spent in jail while not serving any other sentence. In fact, not allowing credit for such time served would be in violation of O.C.G.A. § 17-10-11. 1987 Op. Att’y Gen. No. 87-19. When a sentence is imposed to run concurrently with one already being served, the subsequent sentence runs concurrently with the unexecuted portion of the previous sentence. 1975 Op. Att’y Gen. No. 75-3. Credit for time served against consecutive sentences. - Defendants serving consecutive sentences, who have earned credit for time served against the consecutive sentences, must be given credit for that time against the consecutive sentences. 1987 Op. Att’y Gen. No. 87-19. Credit for confinement when suspended sentence is revoked. - This section was intended to credit a defen-

dant, whose suspended sentence is revoked, with the time the defendant spent in jail prior to the defendant’s original trial and prior to the defendant’s revocation. 1973 Op. Att’y Gen. No. 73-1. When a suspension of jail sentence occurred before July 1, 1970, the effective date of this section, and a revocation occurred afterwards, credit was allowed for prerevocation jail time occurring after the effective date. 1973 Op. Att’y Gen. No. 73-1. Determination of credit when probation revoked. - After revocation of a probated sentence, in determining the remaining balance of the sentence, the defendant is credited with 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. Credit for time awaiting extradition. - Defendant is entitled to receive credit for time spent in confinement awaiting extradition. 1973 Op. Att’y Gen. No. 73-5. When good-time allowances and deductions may be computed. - With the limited exception of Ga. L. 1969, p. 606, § 1 (see O.C.G.A. § 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. 1972 Op. Att’y Gen. No. 72-61. When credit can be taken away for misbehavior. - With the limited exception of Ga. L. 1969, p. 606, § 1 (see O.C.G.A. § 42-6-5), neither sheriffs nor the Department of Offender Rehabilitation can take jail credit away from inmates who have misbehaved in jails prior to the inmates being sent to correctional institutions. 1972 Op. Att’y Gen. No. 72-61. Power to devise forms and to require submission of information. - Director of corrections (now commissioner of offender rehabilitation) is authorized to devise and distribute such forms as may

be necessary to implement Ga. L. 1972, p. 742, §§ 1 - 3 (see O.C.G.A. §§ 17-10-11 and 17-10-12). The director (now commissioner) may require that data concerning the number of days an inmate spent in jail prior to trial be transmitted to the Board of Corrections (now Board of Offender Rehabilitation) upon forms approved and distributed by the board. 1970 Op. Att’y Gen. No. 70-127. Credits for defendant sentenced in one county and loaned to second county for prosecution. - Individual who is sentenced in county A and then ‘‘loaned’’ to county B for prosecution is entitled to credit for jail time certified by the individual’s county B custodian against both sentences, if concurrent, but if the individual’s county B sentence is made consecutive, the individual will not receive credit against the county B sentence for the individual’s county B jail time. 1983 Op. Att’y Gen. No. 83-21. An inmate who is removed by court order to a county jail for prosecution or sentencing is entitled to credit against both the inmate’s previous sentence(s) and the inmate’s new sentence(s), if concurrent, for certified jail time the inmate serves in connection with the new sentence(s). 1983 Op. Att’y Gen. No. 83-21. Credit for time served in escape status. - Inmate is not entitled to credit for time served in a county jail while in escape status, even if the Department of Offender Rehabilitation (now Corrections) is made aware of the inmate’s whereabouts. 1983 Op. Att’y Gen. No. 83-21. Escapee captured and sentenced in another state. - Inmate who escapes from the custody of the Department of Offender Rehabilitation (now Department of Corrections) and, while on escape, is captured and sentenced in another state remains in escape status until returned to Georgia and is not entitled to credit against the inmate’s Georgia sentence(s) for time served in the other state. 1983 Op. Att’y Gen. No. 83-21. If jail time is certified pursuant to O.C.G.A. § 17-10-12 in connection with prosecution of an escapee prior to the escapee’s return to the custody of the Department of Offender Rehabilitation (now Department of Corrections), the

prisoner is entitled to jail time credit only against the new sentence(s). 1983 Op. Att’y Gen. No. 83-21. RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, §§ 490, 491. 59 Am. Jur. 2d, Pardon and Parole, § 77 et seq. C.J.S. - 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2359 et seq. 67A C.J.S. (Rev), Pardon and Parole, § 46 et seq. ALR. - Time which convict spends in hospital as credit on his sentence, 62 A.L.R. 246. Right of state or federal prisoner to credit for time served in another jurisdiction before delivery to state or federal authorities, 18 A.L.R.2d 511; 90 A.L.R.3d 408. Effect of delay in taking defendant into custody after conviction and sentence, 98 A.L.R.2d 687. Right to credit for time spent in custody prior to trial or sentence, 77 A.L.R.3d 182. 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. Computation of incarceration time under work-release or ‘‘hardship’’ sentences, 28 A.L.R.4th 1265. Defendant’s right to credit for time spent in halfway house, rehabilitation center, or similar restrictive environment as a condition of pretrial release, 29 A.L.R.4th 240. Liability of private operator of ‘‘halfway house’’ or group home housing convicted prisoners before final release for injury to third person caused by inmate, 9 A.L.R.5th 969. Effect of delay in taking defendant into custody after conviction and sentence, 76 A.L.R.5th 485.