O.C.G.A. § 17-10-8 (2019)

Annotations

Cross references. - Probation generally, T. 42, C. 8. Law reviews. - For article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 45 (2018).

JUDICIAL DECISIONS Power of trial judge to sentence generally. - O.C.G.A. §§ 17-10-1 and 17-10-8, when read together, provide that the judge fixing sentence shall prescribe a determinate sentence for a specific number of years within the limits set by law, may probate a noncapital felony sentence upon such terms as the judge deems proper, and may impose a fine upon the convicted party not to exceed $10,000 (or the fine fixed by law, whichever is greater). State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981). Power to sentence corporation. - Pursuant to O.C.G.A. § 16-2-22(a), a cor-

poration can be prosecuted for violating the law and a court may sentence a corporation to serve a term for years (even though such sentence be incapable of enforcement) and may suspend that sentence and impose a fine. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981). Fine distinguished from reparations to injured party. - Since a fine is payable to the state and reparation to the injured party, the two are distinct and cannot be substituted for each other to void a sentence. Biddy v. State, 138 Ga. App. 4, 225 S.E.2d 448 (1976).

Showing of wilfullness or inadequacy of alternative punishments required. - When payment of a fine or restitution is made a condition precedent to probation, a defendant’s probation may not be revoked or withheld because of the defendant’s failure to pay the fine or restitution without a showing of wilfullness on the defendant’s part or inadequacy of alternative punishments. Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018). Fine not authorized in every case. - O.C.G.A. § 17-10-8 does not authorize the imposition of a fine in every case when probation might have been given. Hendrix v. State, 199 Ga. App. 599, 405 S.E.2d 576 (1991). Trial court may impose a fine when the trial court is authorized to and, in fact, does award ‘‘such probation.’’ If the trial court does not award probation, the imposition of a fine in addition to a prison sentence is outside the trial court’s discretion and not authorized. Hendrix v. State, 199 Ga. App. 599, 405 S.E.2d 576 (1991). If the trial court does not award probation, the imposition of a fine in addition to a prison sentence is outside the trial court’s discretion and not authorized. Wood v. State, 204 Ga. App. 467, 419 S.E.2d 534 (1992). Upon conviction of a defendant of possession of cocaine with intent to distribute, the trial court was without authority to impose a fine, penalty fee, and D.A.T.E. fee; the penalty for the offense does not include monetary fines. Rawls v. State, 210 Ga. App. 408, 436 S.E.2d 527 (1993). Unauthorized fines are void. - Since the defendants violated O.C.G.A. § 16-13-30(b) by possessing with intent to distribute a controlled substance and since O.C.G.A. § 16-13-30(h) does not authorize imposition of any fines, the trial court was without authority to impose a $5,000 fine on one defendant and $10,000 fines on each of the other defendants, thus, the fines imposed were void and stricken from the respective sentences. Castillo v. State, 166 Ga. App. 817, 305 S.E.2d 629 (1983). Though the section under which a defendant is convicted does not authorize a fine, O.C.G.A. § 17-10-8 allows

the imposition of a fine as a condition precedent to probation for a felony conviction. Todd v. State, 172 Ga. App. 231, 323 S.E.2d 6 (1984). Offense for which fine not otherwise authorized. - Although the authorized punishment for aggravated assault does not include a fine, O.C.G.A. § 17-10-8 authorizes a fine in any case in an amount up to $10,000.00 (1990 amendment increased maximum fine to $100,000.00) as a condition of probation. Shelton v. State, 161 Ga. App. 524, 289 S.E.2d 768 (1982). Imposition of a $100,000 fine as a condition of probation on a sentence for attempting to traffic in cocaine was invalid, illegal, and void for the reason that since the offense of attempted trafficking in cocaine is punishable by imprisonment but contains no provision for a fine, the maximum fine which could be imposed as a condition of probation was $10,000 (1990 amendment increased maximum fine to $100,000.00). Holbert v. State, 177 Ga. App. 461, 340 S.E.2d 25 (1986). Imposition of $5,000 fine proper for drug possession. - When a defendant was convicted of possession of cocaine with intent to distribute under O.C.G.A. § 16-13-30 and sentenced to the mandatory minimum of ten years’ imprisonment, plus 30 years on probation, the trial court did not err in imposing a $5,000 fine as a condition of probation. O.C.G.A. § 17-10-8 permitted a trial court to impose a fine as a condition of probation. Marshall v. State, 291 Ga. App. 284, 661 S.E.2d 662 (2008). Fine for Medicaid fraud deemed proper. - Defendant was properly fined $50,000 as a condition of defendant’s ten years’ probation for Medicaid fraud because, although the maximum statutory fine for the crime was $10,000, the trial court could impose a fine up to $100,000 as a probation condition pursuant to O.C.G.A. § 17-10-8. Kell v. State, 262 Ga. App. 489, 585 S.E.2d 915 (2003). Imposition of fine not authorized. - Since the defendant was not placed on probation, imposition of $2,000.00 fine was not authorized and the defendant had to be resentenced. Young v. State, 163 Ga. App. 507, 295 S.E.2d 175 (1982).

Order for defendant to pay fines during incarceration was void. - Defendant’s sentence for cocaine possession requiring the defendant to begin making monthly payments on fines, fees, and court costs during incarceration was a punishment that the law did not allow, and therefore was void. Pursuant to O.C.G.A. § 17-10-8, the defendant could only be ordered to make such payments as a condition of probation. Crane v. State, 302 Ga. App. 422, 691 S.E.2d 559 (2010). Defendant’s ability to pay to be determined. - Trial court was authorized to impose a $5,000 fine as a condition of probation in addition to incarceration; however, the court erred in imposing the fine without first determining the defendant’s ability to pay. Eason v. State, 215 Ga. App. 614, 451 S.E.2d 820 (1994), over-

ruled on other grounds, Turner v. State, 259 Ga. App. 902 (2003), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019). Cited in Payne v. State, 117 Ga. App. 92, 159 S.E.2d 459 (1968); Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977); Eubanks v. State, 144 Ga. App. 152, 241 S.E.2d 6 (1977); Dowdy v. State, 148 Ga. App. 498, 251 S.E.2d 571 (1978); Taylor v. State, 149 Ga. App. 362, 254 S.E.2d 432 (1979); Wright v. State, 154 Ga. App. 400, 268 S.E.2d 378 (1980); Printup v. State, 159 Ga. App. 574, 284 S.E.2d 82 (1981); Ray v. State, 181 Ga. App. 42, 351 S.E.2d 490 (1986); Lester v. State, 190 Ga. App. 59, 378 S.E.2d 364 (1989); Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).

RESEARCH REFERENCES ALR. - State court’s power to place defendant on probation without imposition of sentence, 56 A.L.R.3d 932. 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. Validity of requirement that, as condition of probation, indigent defendant reimburse defense costs, 79 A.L.R.3d 1025.

Power of state court, during same term, to increase severity of lawful sentence - modern status, 26 A.L.R.4th 905. Power of court to increase severity of unlawful sentence - modern status, 28 A.L.R.4th 147. Jurisdiction or power of juvenile court to order parent of juvenile to make restitution for juvenile’s offense, 66 A.L.R.4th 985.