O.C.G.A. § 42-8-29 (2019)

Annotations

Cross references. Applicability of this state’s correction laws to probationers’ found in other states, T. 42, C. 11. Code Commission notes. Pursuant to Code Section 28-9-5, in 2015, “the” was deleted following “It shall be the duty of” at the beginning of subsection (a).

Editor’s notes. 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.” Law reviews. 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).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PRESENTENCE INVESTIGATION AND REPORT 1. USE 2. REVEALING CONTENTS TO COUNSEL 3. PRESENTENCE AND POST-SENTENCE PROBATIONERS’ CERTIFIED COPY OF SENTENCE General Consideration Pre-sentence report not required. - Under O.C.G.A. § 42-8-29, the trial court was not required, but was permitted, to order the preparation of a presentence investigation report prior to imposing a sentence. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637, 2004 Ga. App. LEXIS 702 (2004). Defendant’s claim of not knowingly and intelligently waiving the right to a presentence investigation report conducted by the county probation department was without merit because under O.C.G.A. § 42-8-29 the defendant did not have such a right. Walker v. State, 296 Ga. App. 763, 675 S.E.2d 496, 2009 Ga. App. LEXIS 226 (2009), overruled in part, Collier v. State, 307 Ga. 363, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (2019). Presentence Investigation and Report 1. Use Use of report under § 42-8-34 in fixing sentence. - Presentence investigation report of former Code 1933, § 272702 (see now O.C.G.A. § 42-8-34) cannot be used in aggravation in fixing the length of the sentence. Mills v. State, 244 Ga. 186, 259 S.E.2d 445, 1979 Ga. LEXIS 1171 (1979). Probation report cannot be offered in aggravation of sentence, regardless of whether it lists prior offenses. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601, 1981 Ga. LEXIS 1049 (1981), superseded by statute as stated in Parker v. Abernathy, 253 Ga. 673, 324 S.E.2d 191, 1985 Ga. LEXIS 514 (1985), overruled, West v. Waters, 272 Ga. 591, 533 S.E.2d 88, 2000 Ga. LEXIS 545 (2000). Information in the report filed under former Code 1933, § 27-2702 (see now

O.C.G.A. § 42-8-34) cannot be regarded as “evidence” either in aggravation or in mitigation. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). Trial court is authorized under O.C.G.A. §§ 42-8-29 and 42-8-34 to consider investigative reports prepared by probation officers for the purpose of deciding whether to suspend or probate all or part of the defendant’s sentence, but the court cannot use the reports to determine the length of the sentence. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908, 1983 Ga. App. LEXIS 1945 (1983). Use of report under § 17-10-2 in fixing sentence. - Presentence report under § 17-10-2 may be used as evidence in aggravation, thereby affecting the length of sentence, only if the report had been made known to the defendant prior to the defendant’s trial. However, under former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) a presentence report was also authorized before pronouncing sentence for the purpose of deciding whether to suspend or probate all or part of the sentence to be imposed in a case. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). If the presentence report was used to determine length of sentence, the procedure set forth in § 17-10-2 must be followed; but if the report was used only to determine whether to probate or suspend all or a portion of the sentence, the report could be used. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). Probation report cannot be offered in aggravation of sentence, regardless of whether it lists prior offenses. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601, 1981 Ga. LEXIS 1049 (1981), superseded by

statute as stated in Parker v. Abernathy, 253 Ga. 673, 324 S.E.2d 191, 1985 Ga. LEXIS 514 (1985), overruled, West v. Waters, 272 Ga. 591, 533 S.E.2d 88, 2000 Ga. LEXIS 545 (2000). Use of previously undisclosed report. - Although use of a previously undisclosed probation report to aid the trial judge in determining whether to suspend or probate a sentence does not invalidate the sentence which is imposed, it cannot be used in fixing the length of the sentence. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601, 1981 Ga. LEXIS 1049 (1981), superseded by statute as stated in Parker v. Abernathy, 253 Ga. 673, 324 S.E.2d 191, 1985 Ga. LEXIS 514 (1985), overruled, West v. Waters, 272 Ga. 591, 533 S.E.2d 88, 2000 Ga. LEXIS 545 (2000). 2. Revealing Contents to Counsel Judge’s discretion to reveal content of report to counsel. - Since this section does not require the content of a presentence probation report to be shared with counsel, it is in the sound discretion of the trial judge whether to reveal the content of the report to counsel for the accused and for the state. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89, 1976 Ga. App. LEXIS 1615 (1976); Watts v. State, 141 Ga. App. 127, 232 S.E.2d 590, 1977 Ga. App. LEXIS 1796 (1977), cert. denied, 434 U.S. 925, 98 S. Ct. 405, 54 L. Ed. 2d 283, 1977 U.S. LEXIS 3796 (1977), overruled, Graham v. State, 153 Ga. App. 658, 266 S.E.2d 316, 1980 Ga. App. LEXIS 1938 (1980); Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28, 1978 Ga. LEXIS 1188 (1978); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772, 1979 Ga. App. LEXIS 2716 (1979), cert. denied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 2d 263, 1980 U.S. LEXIS 2179 (1980). Disclosure of report containing adverse matters. - When a presentence report contains any matter adverse to the defendant and likely to influence decision to suspend or probate the sentence, it should be revealed to defense counsel by the trial judge in advance of the presentence hearing to give the accused an opportunity for explanation or rebuttal. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d

28, 1978 Ga. LEXIS 1188 (1978); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772, 1979 Ga. App. LEXIS 2716 (1979), cert. denied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 2d 263, 1980 U.S. LEXIS 2179 (1980). 3. Presentence and Post-sentence Utility of labeling report as postsentence or presentence. - Labeling an investigative report of the probation department as a “post-sentence” report, as distinguished from a “presentence” report, will not change the report’s legal effect when the content, purpose, and function of the report are the same. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). Trial court may not do indirectly - with a “post-sentence”’ report, that which Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) proscribes directly - using a “presentence” report to determine length of sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). Utilizing later report to determine final length of sentence. - Trial court erred in imposing the maximum sentence with the intent of utilizing a later report to determine the final length of sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). “Presentence” and “post-sentence” reports. - There is no discernible difference between a “presentence” and “postsentence” report, except as to time of submission, and this is of no import when each is used for the same purpose. Thus, it is permissible to use a “presentence” or “post-sentence” report for the purpose of deciding whether to suspend or probate all or some part of a sentence. For the same reason it is impermissible to use a “presentence” or “post-sentence” report in fixing the length of the sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). Use of “post-sentence” report to determine sentence. - Since the trial court intended to use the “post-sentence” report to determine the final length of the sentence, it was implicit that the trial court imposed the original sentence with

Presentence and Post-sentence (Cont’d) the intent of determining a final length of sentence only after viewing the “post-sentence” investigative report. In such instance, Munford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) and Mills v. State, 244 Ga. 186, 259 S.E.2d 445 (1979) proscribed the use of the reports to determine “length” of sentence without compliance with the provisions of former Code 1933, § 27-2503 (see now O.C.G.A. § 17-10-2). Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734, 1980 Ga. App. LEXIS 2974 (1980). Probationers’ Certified Copy of Sentence Purpose of giving probationers certified copy of sentence. - Purpose of

the provision of this section which requires the circuit probation officers to give the probationers a certified copy of the sentence is to ensure that each probationer is familiar with the terms of the probationer’s sentence. Poss v. State, 114 Ga. App. 609, 152 S.E.2d 695, 1966 Ga. App. LEXIS 869 (1966). When failure to furnish certified copy not violative of sentence. - If the defendant is admittedly familiar with the terms of the defendant’s sentence, the failure of the circuit probation officer to furnish the defendant with a certified copy of the defendant’s sentence as required by this section does not violate the terms of the sentence. Poss v. State, 114 Ga. App. 609, 152 S.E.2d 695, 1966 Ga. App. LEXIS 869 (1966).

RESEARCH REFERENCES Am. Jur. 2d. 21A Am. Jur. 2d, Criminal Law, § 843 et seq. C.J.S. 24 C.J.S., Criminal Law, §§ 121442161.

ALR. Right of convicted defendant or prosecution to receive updated resentence report at sentencing proceedings, 22 A.L.R.5th 660.