Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1937, p. 758 are included in the annotations for this Code section.

Section is mandatory.

- O.C.G.A. § 42-5-50 is mandatory in the statute's application; moreover, even if Whidden v. State, 160 Ga. App. 177, 287 S.E.2d 114 (1982), was applicable, the state failed to show that the defendant's removal to the state penitentiary while the defendant's appeal was pending was for the defendant's own safety, since the number of prisoners in the county jail was less than the jail's capacity. Helmeci v. State, 230 Ga. App. 866, 498 S.E.2d 326 (1998).

Trial court erred in granting summary judgment in favor of a former clerk and a deputy clerk in an inmate's action alleging that they breached their duty to notify the department of corrections of the inmate's amended sentence as required by O.C.G.A. § 42-5-50(a), because the court of appeals previously ruled in the case that the clerks were not entitled to official immunity in their individual capacities for failing to perform the ministerial act of communicating the inmate's sentence to the DOC, and nothing in the record following remand changed that ruling; Code Section42-5-50(a) is imperative, and its performance is neither discretionary nor dependent upon a direction from the parties at interest. McGee v. Hicks, 303 Ga. App. 130, 693 S.E.2d 130 (2010), aff'd, 289 Ga. 573, 713 S.E.2d 841 (2011).

Ministerial duties of clerk.

- Because the duties of a clerk of court to forward sentencing orders to the DOC as mandated by O.C.G.A. § 42-5-50 were ministerial rather than discretionary, and were unambiguously triggered by the filing of a sentencing order which the clerk neglected to send, the clerk was not entitled to official immunity in a prisoner's case seeking damages for remaining incarcerated 22 months longer than necessary. Hicks v. McGee, 289 Ga. 573, 713 S.E.2d 841 (2011).

Language in sentence designating place of incarceration surplusage but not void.

- When one guilty of a misdemeanor is sentenced to be "confined at labor at the State Penitentiary at Reidsville, Georgia (Georgia State Prison), or such other place as the proper authority may direct," such portion of the sentence as seeks to designate the place of confinement, when no effort so to confine the prisoner is shown and since the director of the department of corrections (now commissioner of corrections) designates where most sentences are served, is mere surplusage, and, though technically not in the right form, is not such an irregularity as is hurtful to any right of liberty, or such a defect as makes the sentence void. Mathis v. Scott, 199 Ga. 743, 35 S.E.2d 285 (1945) (decided under Ga. L. 1937, p. 758).

Application of continuous tort doctrine to alleged violation.

- O.C.G.A § 9-3-33, under the continuous tort doctrine, did not bar a former inmate's negligence claim against two court clerks, based on their alleged failure to communicate the inmate's sentence to the Department of Corrections as the clerks' violation of their continuing duty to communicate the inmate's sentence to the Department resulted in continuous injury in the form of an ever-increasing illegal confinement that was not eliminated until the inmate was released from prison; hence, the trial court erred in finding that the claim was time-barred. Hicks v. McGee, 283 Ga. App. 678, 642 S.E.2d 379 (2007), cert. denied, 2007 Ga. LEXIS 512 (Ga. 2007).

Reversal of conviction not remedy.

- Defendant could not obtain a reversal of defendant's conviction due to an alleged violation of O.C.G.A. § 42-5-50(c) by defendant's transfer to the state penitentiary after the defendant's conviction as: (1) defendant never obtained a ruling on the defendant's O.C.G.A. § 42-5-50(c) motion, which waived the defendant's allegation of error for appeal purposes; (2) O.C.G.A. § 42-5-50(c) did not provide for reversal of a conviction if a trial court refused to keep a convicted defendant in the county jail; and (3) the defendant failed to show that the results of the defendant's appeal would have been different had the defendant been held in the county jail. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

Effect of failing to keep defendant in jail.

- O.C.G.A. § 42-5-50(c) does not provide for reversal of a conviction if a trial court refuses to keep a convicted defendant in the county jail. Wilbanks v. State, 251 Ga. App. 248, 554 S.E.2d 248 (2001).

Section did not provide sufficient grounds to prevent extradition.

- Trial court properly denied a prisoner's petition for a writ of habeas corpus pursuant to O.C.G.A. § 17-13-30 seeking to block extradition; O.C.G.A. § 42-5-50 did not prevent the defendant from being extradited while defendant's motion for a new trial was pending. Instead O.C.G.A. § 42-5-50 addresses the situation in which defense counsel certifies to the court that it is required that the convicted person remain in the local jail or lockup rather than being transferred to the assigned correctional institution in order to properly prosecute an appeal of the conviction. Bradford v. Brown, 277 Ga. 92, 586 S.E.2d 631 (2003).

Custody of defendant pending appeal in extraordinary circumstances.

- Following the conviction of the defendant, a former sheriff, for murdering a successful electoral opponent, the trial court did not violate O.C.G.A. § 42-5-50(c) by denying the defense counsel's requests that the defendant remain housed in a county facility so as to give counsel access to the defendant for purposes of prosecuting an appeal because the defendant was a high security risk, and the defendant's status as a former law enforcement officer required rotating the defendant's placement in metropolitan jails. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).

Absent evidence of defendant's inducement guilty plea not void.

- Defendant's dissatisfaction as to the defendant's incarceration in an institution other than one recommended by the court does not render the defendant's guilty plea void when there is no evidence that it constituted a part of the inducement to enter the plea. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).

Finality of board's decisions.

- Board controls prison system and the board's administrative decisions are final absent violation of rights enforceable in the courts; thus, enumeration of error is waived when the defendant admits that the trial court and the district attorney kept their part of the agreement. Overby v. State, 150 Ga. App. 319, 257 S.E.2d 386 (1979).

Cited in Ricketts v. Brantley, 239 Ga. 151, 236 S.E.2d 51 (1977); Wise v. Balkcom, 245 Ga. 126, 263 S.E.2d 158 (1980); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982); Welch v. State, 172 Ga. App. 654, 324 S.E.2d 488 (1984); Eubanks v. State, 229 Ga. App. 667, 494 S.E.2d 564 (1998); Giles v. State, 257 Ga. App. 65, 570 S.E.2d 375 (2002); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Walker v. State, 289 Ga. App. 879, 658 S.E.2d 375 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015).

Felons must serve sentence under department's custody.

- Since all convicted felons sentenced to a term of incarceration now serve their sentences under the jurisdiction of the department, judges of the superior courts lack the authority to sentence an inmate to the custody of any other person or entity. 1993 Op. Att'y Gen. No. 93-17.

Pending appeal, department cannot take custody of prisoner.

- Department cannot, without a valid request from the prisoner or the prisoner's attorney, take custody of a prisoner whose motion for new trial has been denied and whose attorney has stated that the attorney will file an appeal within the required 30 days, so long as this time has not expired. 1973 Op. Att'y Gen. No. 73-153.

Finality of convictions.

- During the 30-day period in which an appeal may be filed, a conviction is not final within the meaning of subsection (a) of this section; accordingly, unless there has been a valid request for transfer, the department cannot assume lawful custody of the prisoner. 1973 Op. Att'y Gen. No. 73-153.

Restrictions as to incarceration in board-operated institution.

- Individual awaiting disposition of a pending criminal charge and who is not serving a sentence in the state correctional system may not be incarcerated in an institution operated by the Board of Corrections. 1970 Op. Att'y Gen. No. 70-111.

Summons in lieu of indictment or accusation.

- When an inmate has been brought to trial and convicted upon a summons, rather than an indictment or an accusation, the clerk of the court in which the conviction was returned must furnish to the Department of Offender Rehabilitation (Corrections) a certified copy of that summons; in such cases, the certified copy of the summons stands in lieu of an indictment or accusation. 1969 Op. Att'y Gen. No. 69-517.

Lost indictment.

- Clerk's certification that indictment is lost is not sufficient replacement for a certified copy of the actual indictment. 1970 Op. Att'y Gen. No. 70-61.

Because the General Assembly contemplated receipt of the document specifying the charge of which the inmate had been found guilty, a clerk's certification that the indictment is lost is not sufficient replacement for a certified copy of the actual indictment. 1969 Op. Att'y Gen. No. 69-517.

Whether punishment computed on basis of felony or misdemeanor.

- Whether punishment is computed on the basis of a felony or a misdemeanor sentence is controlled by the conviction; a prisoner is either a misdemeanant or a felon, dependent on the crime for which the prisoner was convicted. 1970 Op. Att'y Gen. No. 70-49.

When sentence contains reduction of an offense from felony to misdemeanor, sentence should be computed as a misdemeanor because those authorized to fix the sentence have elected to so treat it. 1970 Op. Att'y Gen. No. 70-49.

Sentence does not have a shifting quality, allowing the sentence to vacillate between misdemeanor and felony status at different times or for different purposes. 1970 Op. Att'y Gen. No. 70-49.

Presumption of validity of sentence.

- When the director of corrections (now commissioner of corrections) receives the certificate of the clerk of the sentencing court, the presumption is that the sentence imposed is a valid sentence. 1977 Op. Att'y Gen. No. 77-71.

Board prescribes conditions of work required of prisoners.

- In view of the broad language found in subsection (e) of Ga. L. 1957, p. 477, § 4 (see now O.C.G.A. § 42-5-60) that prison labor could be required in public buildings in any such manner as deemed advisable by the Board of Offender Rehabilitation (Corrections), it is obvious that the legislature intended the board to prescribe the conditions of work required of the prisoners; and even though some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is nonetheless to the prison or public work camp (now county correctional institution) as determined by the commissioner; in turn the prison or camp has sole administrative responsibility and control of the prisoner even though the prisoner may be temporarily attached to the county jail to perform the required repair or maintenance services; such a temporary attachment is not an assignment which contravenes the language of Ga. L. 1956, p. 161, § 13 (see now O.C.G.A. § 42-5-50). 1963-65 Op. Att'y Gen. p. 72.

Data on inmates' jail time prior to trial.

- Director of corrections (now commissioner of corrections) is authorized to devise and distribute such forms as may be necessary to implement Ga. L. 1970, p. 692, §§ 1-4 (see now O.C.G.A. §§ 17-10-11 and17-10-12) (relating to time spent in confinement awaiting trial); the director may require that data concerning the number of days an inmate spent in jail prior to trial be transmitted to the Board of Corrections upon forms approved and distributed by the board. 1970 Op. Att'y Gen. No. 70-127.

Vehicles to transport prisoners.

- There are no specific requirements as to types of vehicles which may be used to transport prisoners. 1962 Op. Att'y Gen. p. 382.

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, § 134.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 17-25, 128, 129.

ALR.

- Validity of statute empowering administrative officials to transfer to penitentiary inmate of reformatory, 95 A.L.R. 1455.