Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1913, p. 112 and 113 are included in the annotations for this Code section.

Ga. L. 1913, p. 113 had no reference to habeas corpus. Cook v. Jenkins, 146 Ga. 704, 92 S.E. 212 (1917) (decided under former Ga. L. 1913, p. 113).

Term "sentencing judge" in O.C.G.A. § 42-8-34(g) refers to the office and not the person. Smith v. State, 250 Ga. App. 128, 550 S.E.2d 683 (2001), overruled on other grounds, Lewis v. McDougal, 276 Ga. 861, 583 S.E.2d 859 (2003).

Refusal to release prisoner.

- While original sentence and order revoking probation are still in force, it is not error to refuse to release prisoner upon habeas corpus although the evidence upon such hearing showed no violation of the conditions of probation. Troup v. Carter, 154 Ga. 481, 114 S.E. 577 (1922) (decided under former Ga. L. 1913, p. 112).

Sentencing error.

- Trial court erred in sentencing person convicted of murder to life imprisonment plus probation to be served under the supervision of the sentencing court. Brown v. State, 246 Ga. 251, 271 S.E.2d 163 (1980).

Sentence of 10 days in jail followed by 12 months probation for conviction of driving under the influence was improper. Kovacs v. State, 227 Ga. App. 870, 490 S.E.2d 539 (1997).

Crime lab fee of $25 should not have been imposed under O.C.G.A. § 42-8-34(d)(2) in the driving under the influence case under O.C.G.A. § 40-6-391 because the defendant was not sentenced to probation on the driving under the influence count. Johnson v. State, 282 Ga. App. 258, 638 S.E.2d 406 (2006).

Sentencing court could consider defendant's illegal alien status.

- Trial court did not violate the defendant's constitutional rights by considering the defendant's illegal alien status a relevant factor in formulating an appropriate sentence within the statutory range for burglary under O.C.G.A. § 16-7-1(a); the trial court properly considered that the court could not order the defendant to work as a condition of probation. Trujillo v. State, 304 Ga. App. 849, 698 S.E.2d 350 (2010).

Cited in Streetman v. State, 70 Ga. App. 192, 27 S.E.2d 704 (1943); Buice v. Bryan, 212 Ga. 508, 93 S.E.2d 676 (1956); Daniel v. Whitlock, 222 Ga. 192, 149 S.E.2d 79 (1966); Woodall v. State, 122 Ga. App. 653, 178 S.E.2d 337 (1970); Garrett v. State, 125 Ga. App. 743, 188 S.E.2d 920 (1972); Calhoun v. Couch, 232 Ga. 467, 207 S.E.2d 455 (1974); Barnett v. Hopper, 234 Ga. 694, 217 S.E.2d 280 (1975); Dailey v. State, 136 Ga. App. 866, 222 S.E.2d 682 (1975); Patton v. Ricketts, 236 Ga. 293, 223 S.E.2d 635 (1976); Van Voltenburg v. State, 138 Ga. App. 628, 227 S.E.2d 451 (1976); Decker v. State, 139 Ga. App. 707, 229 S.E.2d 520 (1976); McKisic v. State, 238 Ga. 644, 234 S.E.2d 908 (1977); Patat v. State, 142 Ga. App. 398, 236 S.E.2d 143 (1977); Warner v. Jones, 241 Ga. 467, 246 S.E.2d 320 (1978); Handsford v. State, 147 Ga. App. 665, 249 S.E.2d 768 (1978); Stallworth v. State, 150 Ga. App. 766, 258 S.E.2d 611 (1979); Cofer v. Hawthorne, 154 Ga. App. 875, 270 S.E.2d 84 (1980); Johnson v. State, 156 Ga. App. 511, 274 S.E.2d 669 (1980); Parkerson v. State, 156 Ga. App. 440, 274 S.E.2d 799 (1980); Turnipseed v. State, 158 Ga. App. 266, 279 S.E.2d 725 (1981); State v. Hasty, 158 Ga. App. 464, 280 S.E.2d 873 (1981); Dilas v. State, 159 Ga. App. 39, 282 S.E.2d 690 (1981); Fowler v. State, 159 Ga. App. 496, 283 S.E.2d 710 (1981); Jackson v. State, 248 Ga. 480, 284 S.E.2d 267 (1981); Johns v. State, 160 Ga. App. 535, 287 S.E.2d 617 (1981); Stillwell v. State, 161 Ga. App. 230, 288 S.E.2d 295 (1982); Howard v. State, 161 Ga. App. 743, 289 S.E.2d 815 (1982); Jones v. State, 165 Ga. App. 180, 300 S.E.2d 534 (1983); Strickland v. State, 165 Ga. App. 197, 300 S.E.2d 537 (1983); Pooler v. Taylor, 173 Ga. App. 859, 328 S.E.2d 749 (1985); Taylor v. State, 181 Ga. App. 199, 351 S.E.2d 723 (1986); Acker v. State, 184 Ga. App. 321, 361 S.E.2d 509 (1987); Harrison v. State, 201 Ga. App. 577, 411 S.E.2d 738 (1991); Cauldwell v. State, 211 Ga. App. 417, 439 S.E.2d 90 (1993); Hermann v. State, 249 Ga. App. 535, 548 S.E.2d 666 (2001); Huzzie v. State, 253 Ga. App. 225, 558 S.E.2d 767 (2002); Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010).

Stage of proceedings to determine probation.

- Language of this section seems to refer to probation as a part of the original sentence, and the provision for a hearing must, considering the language as a whole, refer to a hearing on the type of sentence to be imposed, and not authorize the court, at a subsequent term, to add to the sentence a provision for probation when the court made no provision relating thereto in the first instance. Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 707 (1957).

Consideration of conduct during trial.

- Trial court may properly consider the defendant's conduct during trial in considering whether to suspend or probate all of the sentence, and such a consideration does not come within the restrictions of O.C.G.A. § 17-10-2. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908 (1983).

Consideration of conduct prior to sentencing.

- Trial court did not err in considering information as to an altercation between the defendant and a deputy sheriff taking the defendant to the defendant's cell during the trial prior to sentencing when the sentence was already set and the information complained of was considered by the trial court merely to determine what portions would be served on probation or incarceration. Fields v. State, 167 Ga. App. 816, 307 S.E.2d 712 (1983).

Juvenile court adjudications considered.

- It is not unconstitutional to use juvenile court adjudications to determine whether subsequent felony conviction should be probated. Brawner v. State, 250 Ga. 125, 296 S.E.2d 551 (1982).

Omission of presentence hearing.

- It is error to omit the presentence hearing to decide on the defendant's punishment after the verdict. Howard v. State, 161 Ga. App. 743, 289 S.E.2d 815 (1982).

Evidentiary hearing not available.

- Probationer was not entitled to an evidentiary hearing on a motion to modify probation. Ardeneaux v. State, 225 Ga. App. 461, 484 S.E.2d 74 (1997).

Parole board may admit hearsay evidence.

- Hearsay evidence which the board admits like that which is admissible because it comes within an exception to the hearsay rule is not subject to the general principle that hearsay evidence has no probative value even if admitted without objection. Williams v. Lawrence, 273 Ga. 295, 540 S.E.2d 599 (2001).

Referral of case to probation officer not jurisdictional.

- Court sentencing the defendant has jurisdiction of the probation features of the case and may refer the case to a circuit probation officer (now probation supervisor) for investigation and recommendation prior to hearing, but the fact that the court has placed the defendant on probation without such referral does not mean either that the court is without jurisdiction to revoke the probation, or that the statutory provisions do not apply. Harrington v. State, 97 Ga. App. 315, 103 S.E.2d 126 (1958).

Authority of private probation officer.

- Probation officer who was an employee of a private corporation retained to provide probation supervision services in misdemeanor cases pursuant to O.C.G.A. § 42-8-100 was still an officer of the court and could file a petition to revoke the defendant's probation on a misdemeanor shoplifting charge; probation officer's action did not constitute the practice of law let alone the unauthorized practice of law. Huzzie v. State, 253 Ga. App. 225, 558 S.E.2d 767 (2002).

Use of juvenile court record in investigation report.

- Former Juvenile Code clearly authorized the use of the juvenile court record in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report. Jones v. State, 129 Ga. App. 623, 200 S.E.2d 487 (1973).

Adjudications or dispositions under the former Juvenile Code and its predecessors did not constitute a "criminal record," but a juvenile court record would be included within the appellant's "social history". Jones v. State, 129 Ga. App. 623, 200 S.E.2d 487 (1973).

Ordering of probation report.

- It is in discretion of court whether or not to order probation report. Belcher v. State, 173 Ga. App. 509, 326 S.E.2d 857 (1985).

Whether or not to order a probation report to determine whether the defendant's sentence should be suspended or whether the defendant should be placed on probation is within the sound discretion of the trial judge. Hill v. State, 212 Ga. App. 386, 441 S.E.2d 863 (1994).

Statutory reports compared.

- Reports under O.C.G.A. § 42-8-34 are more diverse in the type of information the reports may contain since the reports are used only in determining the question of suspension or probation of sentence and need not be shown to counsel, whereas, reports under O.C.G.A. § 17-10-2 are more restrictive and must be shown to counsel before trial. Moss v. State, 159 Ga. App. 317, 283 S.E.2d 275 (1981).

Not to be regarded as evidence.

- Information in report filed cannot be regarded as "evidence" either in aggravation or in mitigation. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

Consideration for deciding whether to suspend or revoke sentence.

- O.C.G.A. § 42-8-34 authorizes the trial judge to consider investigation reports for the purpose of deciding whether to suspend or probate all or part of the sentence. Although authorized for consideration on the question of probation, in practice such reports may be considered by the trial judge in reducing the length of the sentence. Bentley v. Willis, 247 Ga. 461, 276 S.E.2d 639 (1981).

Trial court is authorized under O.C.G.A. §§ 42-8-29 and42-8-34 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).

Probation report cannot be offered in aggravation of sentence, regardless of whether the report lists prior offenses. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (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, the report cannot be used in fixing the length of the sentence. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000).

Use as evidence in aggravation.

- Presentence report under former Code 1933, § 27-2503 (see now O.C.G.A. § 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).

Use in determining length of sentence.

- If the presentence report was to be used to determine length of sentence, the procedure set forth in former Code 1933, § 27-2503 (see now O.C.G.A. § 17-10-2) must be followed; but, if the report was to be used only to determine whether to probate or suspend all or a portion of the sentence, the report could be used. The presentence investigation report cannot be used in aggravation in fixing the length of the sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (1980).

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. Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975); Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Watts v. State, 141 Ga. App. 127, 232 S.E.2d 590, cert. denied, 434 U.S. 925, 98 S. Ct. 405, 54 L. Ed. 2d 283 (1977); Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772 (1979), cert. denied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 2d 263 (1980).

Disclosure of presentence report containing adverse matters.

- If a presentence probation officer's report contains any matter adverse to the defendant and likely to influence the 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. Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975); Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772 (1979), cert. denied, 446 U.S. 910, 100 S. Ct. 1839, 64 L. Ed. 2d 263 (1980).

Notification by court of intent to use matters in aggravation.

- When the trial court intends to consider matters in aggravation that were ruled inadmissible during the guilt-innocence phase of the trial, the court must inform defense counsel and the prosecution of the court's plans in this regard before the presentence hearing. Absent such notice from the trial court judge, the defense and the prosecution cannot adequately prepare their cases or summon their witnesses for the presentence hearing. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978).

Effect of labeling report as post-sentence or presentence.

- Labeling an investigative report of the probation department as a "post-sentence" report, as contra-distinguished from a "presentence" report, will not change the report's legal effect where the content, the purpose, and function of the report are the same. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (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 the length of sentence. Threatt v. State, 156 Ga. App. 345, 274 S.E.2d 734 (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).

Difference between "presentence" and "post-sentence" reports.

- Because there is no discernible difference between a "presentence" and "post-sentence" report, except as to time of submission, 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).

When 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 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), proscribe 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).

Payment of fine as condition precedent.

- Condition of sentence to be served on probation may include the immediate payment of a fine. Such a sentence does not violate the due process and equal protection clause of U.S. Const., amend. 14. Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), cert. dismissed, 439 U.S. 281, 99 S. Ct. 712, 58 L. Ed. 2d 520 (1978), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 321 S.E.2d 703 (1984).

Ability of defendant to pay fine.

- Because the ability of a defendant to pay a fine is often a factor for the sentencing judge to consider in assessing the likelihood that the defendant will serve a term of probation without violation, a conditionally probated sentence is not necessarily invidious discrimination based on wealth if the sentencing judge has determined that the defendant would not be a good candidate for probation unless a fine is paid first. Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), cert. dismissed, 439 U.S. 281, 99 S. Ct. 712, 58 L. Ed. 2d 520 (1978), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 321 S.E.2d 703 (1984).

Condition of probation which stipulated that the defendant pay a fine "as and when directed by probation officer" without having held a hearing on the defendant's indigency did not violate O.C.G.A. § 42-8-34 since payment of the fine was not a condition precedent to the entry upon probation. Whitehead v. State, 207 Ga. App. 891, 429 S.E.2d 536 (1993).

Defendant must be aware of condition precedent.

- While a court may lawfully require the payment of a fine as a condition precedent to being allowed to begin a probationary period, due process demands that the defendant be made aware that such condition is in fact a condition precedent. Huff v. McLarty, 241 Ga. 442, 246 S.E.2d 302 (1978).

Conditioning probation on lump sum payment of fine.

- Probation of a jail sentence may constitutionally be conditioned upon payment of a fine in lump sum when the defendant is indigent and unable to make immediate payment of the fine. Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), cert. dismissed, 439 U.S. 281, 99 S. Ct. 712, 58 L. Ed. 2d 520 (1978), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 321 S.E.2d 703 (1984).

Condition not to engage in practice of law permissible.

- Inclusion in a probation order of the condition that the defendant not engage in the practice of law for a period of one year was within the sound discretion of the court in probating the sentence and was authorized under former Code 1933, § 27-202 and Ga. L. 1965, p. 413, § 3 (see now O.C.G.A. §§ 42-8-34 and42-8-35). Yarbrough v. State, 119 Ga. App. 46, 166 S.E.2d 35 (1969).

Probated confinement held excessive.

- After a repeat offender was convicted on two counts of misdemeanor theft, and the trial court imposed probated confinement for a period of five years when the maximum period of confinement which could be imposed was for a term of one year, this error was not harmless as both sentences ran consecutively and one of the conditions of the probation was, that in the event probation was revoked, the trial court could order the execution of the sentence originally imposed. Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990).

Benefit of the doubt should be given to the accused.

- Trial court's attempt to revoke part of the defendant's probated sentence for theft was a nullity because, although an earlier court order was ambiguous about whether or not the probation provisions for both offenses had been revoked, the benefit of the doubt should be given to the accused. Merneigh v. State, 271 Ga. 883, 525 S.E.2d 362 (2000).

Notice and hearing prior to revocation of suspended sentence.

- Sentence which is suspended cannot be revoked as to the suspension feature without notice and opportunity to be heard. This is true as the modification may be made only after hearing and a finding by the court that the defendant has failed to comply with the terms under which the sentence was suspended. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978).

Crimes to which probation of sentence permissible.

- It is within the power of the court to pass probation sentence when the defendant has been convicted of criminally abandoning the defendant's child. Towns v. State, 25 Ga. App. 419, 103 S.E. 724, cert. denied, 25 Ga. App. 841 (1920).

It is within the power of the court to pass probation sentence after the defendant was convicted of operating an automobile while intoxicated. Jones v. State, 27 Ga. App. 631, 110 S.E. 33 (1921).

Placing defendant on probation.

- Under this section, the court may, upon a verdict of guilty in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation which would authorize discharge without court adjudication of guilt in the event the defendant did not violate probation. Winget v. State, 138 Ga. App. 433, 226 S.E.2d 608, overruled on other grounds, Quick v. State, 139 Ga. App. 440, 228 S.E.2d 592 (1976).

Probating sentence after passage of more than four terms of court.

- Trial court had authority to probate the defendant's sentence to confinement, even though more than four terms of court had passed since conviction and sentence, when the court did not intend the court's sentence to be the final sentence and probated the confinement after receiving a post-sentence investigator's report. State v. Johnson, 183 Ga. App. 236, 358 S.E.2d 840, cert. denied, 183 Ga. App. 907, 358 S.E.2d 840 (1987).

Duration or condition required.

- In imposing sentence of a fine to be suspended on condition that the defendant not violate state law, the trial court was required to set a duration on that condition, not to exceed the maximum sentence which could be imposed for the offense. Hirjee v. State, 226 Ga. App. 573, 487 S.E.2d 40 (1997).

Prospective revocation of probation.

- When the defendant's probation was revoked before the probation began, the defendant's probation was improperly revoked under former O.C.G.A. § 17-10-1, which was the statute in effect at the time that defendant committed the crimes that led to the revocation of probation; former O.C.G.A. § 17-10-1, which was subject to O.C.G.A. § 42-8-34(g), did not grant the authority to revoke probation before the probation began. Jones v. State, 260 Ga. App. 401, 579 S.E.2d 827 (2003).

Trial court did not err in modifying the probationary portion of the defendant's sentence by imposing a condition banishing defendant from the subdivision in which the defendant committed burglaries because the trial court's original sentencing order included as a special condition of probation that the defendant was to avoid all contact with the burglary victims, each of whom lived in the subdivision at issue, and to the extent that the modified sentence simply clarified the scope of that special condition, it was contemplated within the terms of the original sentence pursuant to O.C.G.A. § 42-8-34(g); the banishment provision was reasonable, narrow in scope, and included only the subdivision in which the victims resided, and in the absence of a hearing transcript or any record evidence to the contrary, the court of appeals had to presume that the trial court properly considered the evidence before it. Tyson v. State, 301 Ga. App. 295, 687 S.E.2d 284 (2009).

Registration for public indecency proper as part of probation.

- Because the defendant's sex offender registration as part of probation was limited to the maximum sentence allowed by law as punishment for that crime, the trial court did not improperly give the defendant an indeterminate sentence by requiring the defendant to register as a sexual offender following the defendant's conviction for felony public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013).

Sentence upon revocation of probation.

- Trial court had the authority to revoke the defendant's first offender status and enter an adjudication of guilt for the defendant's violations of probation, pursuant to O.C.G.A. §§ 42-8-34(g) and42-8-60(b), because the defendant was still serving the defendant's probated sentence. Further, because the trial court, when pronouncing the defendant's first offender sentence, advised the defendant that, upon adjudication of guilt, the defendant could be resentenced to the statutory maximum for two counts of child molestation, and that the time served would be credited against the defendant's new sentence, the trial court was authorized to increase the sentence originally imposed. Kaylor v. State, 312 Ga. App. 633, 719 S.E.2d 530 (2011).

Retention for entire term of probation.

- Sentencing judge retains jurisdiction over the probated person during the entire term of such probated sentence, but cannot revoke any sentence which has expired at the time the revocation proceedings are had, nor revoke any future sentence which has not begun to run at the time of such revocation proceedings. Todd v. State, 108 Ga. App. 615, 134 S.E.2d 56 (1963).

O.C.G.A. § 42-8-29 did not violate the constitutional principle of separation of powers, as a probation supervisor had a duty to make the supervisor's findings and report regarding an alleged probation revocation in writing to the court with the supervisor's recommendation; not unlike a district attorney, the probation supervisor was an employee of the Department of Corrections, within the executive branch of state government, and was charged with providing the trial court with information relevant to pending criminal proceedings over which the court alone exercised judicial authority. Wolcott v. State, 278 Ga. 664, 604 S.E.2d 478 (2004).

Authority of judge.

- Trial judge is granted power and authority to suspend or probate a determinate sentence; the judge does not have authority to do both. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980).

Modification of conditions of probation.

- Prior to this section's enactment, a trial judge did not have authority to suspend the execution of a sentence, except to review the judgment upon which the sentence was imposed. Henry v. State, 77 Ga. App. 735, 49 S.E.2d 681 (1948).

If the conditions of probation are believed to be illegal, the appellant may apply for modification under the provisions of this section which continues jurisdiction of probation in the sentencing judge. Dean v. Whalen, 234 Ga. 182, 215 S.E.2d 7 (1975), overruled on other grounds, Terry v. Hamrick, 284 Ga. 24, 663 S.E.2d 256 (2008).

Expansion of power of modification granted to the sentencing court applies only to the probated portion of a split-time sentence. Burns v. State, 153 Ga. App. 529, 265 S.E.2d 859 (1980).

Trial court's power to rescind, modify, or change a sentence "at any time" is limited by its terms to the sentence itself or its conditions and the court may not go behind the sentence to readdress the merits of a plea which was ruled on in a preceding term. State v. James, 211 Ga. App. 149, 438 S.E.2d 399 (1993).

Trial court had authority to require the defendant to undergo treatment as a sex offender after the defendant began serving the defendant's probated sentence, and the addition of such a condition was authorized whether or not there had been a violation of existing conditions of probation. Edwards v. State, 216 Ga. App. 740, 456 S.E.2d 213 (1995).

Order modifying the trial court's prior banishment order imposed as a condition of the defendant's probation was upheld on appeal, as was the denial of the defendant's motion to withdraw a negotiated plea because: (1) the defendant's sentence was independent, and thus, not part of the negotiated plea agreement; and (2) the trial court adequately considered that the defendant's crimes were likely motivated by the relationship the defendant had with the victim, the defendant's ex-spouse, where the ex-spouse resided and worked, as well as where the ex-spouse's immediate family lived, by determining that the banishment order was issued to protect those affected, but also served a rehabilitative purpose by removing a temptation by the defendant to re-offend. Hallford v. State, 289 Ga. App. 350, 657 S.E.2d 10 (2008).

Trial court did not err in modifying the probationary portion of the defendant's sentence because the court retained jurisdiction to modify the terms of the defendant's probation; although the trial court's order modifying the defendant's probated sentence was not entered until the subsequent term of court, the state filed its motion to modify the sentence within the same term in which the sentence was originally rendered. Tyson v. State, 301 Ga. App. 295, 687 S.E.2d 284 (2009).

Defendant's double jeopardy and due process rights were not violated by the process the trial court followed in imposing certain special conditions of probation. The trial court had authority under O.C.G.A. § 42-8-34(g) to modify the probation conditions throughout the period of the sentence and the special conditions of probation did not, individually or in the aggregate, constitute additional punishment. Stephens v. State, 289 Ga. 758, 716 S.E.2d 154 (2011).

Requiring showing of child support payments did not constitute an illegal increase in sentence.

- Defendant who complained that the defendant was unable to pay restitution because the defendant was also paying child support was ordered, as a condition of probation, to provide proof of the child support payments that the defendant made. Given that this condition did not increase the amount the defendant was obligated to pay as part of the defendant's sentence, the condition did not constitute an illegal increase in that sentence under O.C.G.A. § 42-8-34(g). Polly v. State, 323 Ga. App. 893, 748 S.E.2d 696 (2013).

Trial court did not err in denying the defendant's motion to vacate the defendant's sentence because the probation modification did not constitute punishment since the trial court retained jurisdiction to modify or change the probated sentence and changing the no violent contact order to no contact was not punishment but, rather, was for the purpose of protecting the victim. Bell v. State, 323 Ga. App. 751, 748 S.E.2d 114 (2013).

Availability of habeas relief to probationer.

- While a sentencing court retains jurisdiction over a defendant during any period of probation and may modify or correct the probated sentence as necessary, a writ of habeas corpus is an available avenue of relief in cases wherein a defendant not only seeks a modification of the conditions of the probation but also asserts that the sentence imposed was unconstitutional. To the extent that Dean v. Whalen, 234 Ga. 182 (1975), holds to the contrary, it is overruled. Terry v. Hamrick, 284 Ga. 24, 663 S.E.2d 256 (2008), cert. denied, 129 S. Ct. 510, 172 L. Ed. 2d 375 (2008).

Effect of other law.

- There was no modification of the defendant's probation when an original condition of probation was that the defendant make regular reports to the defendant's probation officer as directed and when that condition was later clarified to require that the defendant submit out-of-state travel plans to the defendant's probation officer so that the probation department could comply with an interstate compact relating to interstate travel of sex offenders. Staley v. State, 233 Ga. App. 597, 505 S.E.2d 491 (1998).

Section modified by § 17-10-1. - Former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34), which provided that the court should not lose jurisdiction over a defendant during the term of a probated sentence, but should have power to change or modify the sentence during the period of time originally described for the probated sentence to run, had been modified by Ga. L. 1974, p. 352, §§ 3 and 4 (see now O.C.G.A. § 17-10-1) which provided that after the term of court at which a sentence was imposed by a judge, the judge shall have no authority to suspend, probate, modify, or change the sentence of the prisoner, except as otherwise provided. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978).

Court's discretion in revocation hearing.

- In a revocation of probation hearing, the trial court, as the trier of fact, has very wide discretion and evidence of misconduct of the probationer is sufficient when no manifest abuse of discretion has been shown. Barron v. State, 158 Ga. App. 172, 279 S.E.2d 299 (1981).

Basis for revoking defendant's probation.

- When the defendant and the trial judge agreed on restitution as a condition of the defendant's probated sentence, and since there was evidence that the defendant was able to pay other bills, and the defendant continued to operate the defendant's business and pay business expenses, this could and did serve as the basis of the defendant's probation revocation. Fong v. State, 149 Ga. App. 456, 254 S.E.2d 460 (1979).

Revocation of probation based on subsequent crime.

- Nothing in O.C.G.A. § 42-8-34 prevents the revocation of the probated portion of a sentence based upon a separate crime committed during the portion of the sentence to be served in confinement. Layson v. Montgomery, 251 Ga. 359, 306 S.E.2d 245 (1983).

Amending or revoking sentence before commencement of sentence.

- Trial court has no power to amend and modify a sentence in a criminal case after the term during which the sentence was imposed; accordingly, if the defendant had been sentenced to an indeterminate term in the penitentiary without any provision for probation, the court properly refused to entertain a motion made at a subsequent term that the sentence be modified so as to allow the defendant to serve the sentence on probation. Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 707 (1957).

Court has no power to amend a sentence or revoke the sentence's probationary or suspended feature before the term of sentence has commenced to run, except in the case of the exercise of the plenary power of the court to amend, modify, or rescind judgments during the term of court in which the sentences are entered; and it is error to order the revocation of such sentence, the term of which is not in effect at the time of the purported revocation. Todd v. State, 107 Ga. App. 771, 131 S.E.2d 201 (1963).

Revocation of sentence being served.

- Probated or suspended sentence may be revoked provided the sentence being revoked is in effect and being served at the time the order of revocation is made, even though the act upon which the revocation is based was committed prior to the date the defendant actually begins serving such probated sentence, but after the date of the imposition of the sentence. Todd v. State, 108 Ga. App. 615, 134 S.E.2d 56 (1963).

Court revoking probation because of a subsequent conviction may not make the revoked sentence consecutive to an intervening sentence. England v. Newton, 238 Ga. 534, 233 S.E.2d 787 (1977).

Probated portion of a sentence may be revoked or modified at any time during the term of the probated sentence, after hearing and finding of probation violation. Logan v. Lee, 247 Ga. 608, 278 S.E.2d 1 (1981).

Revoking court may not increase the original sentence; thus, the language "modify or change" in former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34) was limited by Ga. L. 1966, p. 440, § 1 (see now O.C.G.A. § 42-8-38). England v. Newton, 238 Ga. 534, 233 S.E.2d 787 (1977).

While under former Code 1933, § 27-2702 (see now O.C.G.A. § 42-8-34), the trial court had jurisdiction to change or modify the terms of the original sentence, it cannot, under former Code 1933, §§ 27-2502 and Ga. L. 1956, p. 27, § 12 (see now O.C.G.A. §§ 17-10-1 and42-8-38), increase the sentence originally passed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

Suspended sentence cannot exceed maximum sentence of confinement.

- Once service of a suspended sentence begins, either by incarceration or probation, the sentence cannot exceed the maximum sentence of confinement which could have been imposed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978).

Misdemeanors.

- For a misdemeanor, the probated sentence must be considered served at the end of the 12-month period. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978).

Revocation of sentence commencing at future date.

- By reading former Code 1933, §§ 27-2502 and 27-2702 (see now O.C.G.A. §§ 17-10-1 and42-8-34), a trial judge can revoke a probated sentence that was to begin at a future date. Parrish v. Ault, 237 Ga. 401, 228 S.E.2d 808 (1976); Roberts v. State, 148 Ga. App. 708, 252 S.E.2d 209 (1979).

Following the 1992 amendments of O.C.G.A. § 17-10-1, the trial court no longer has the power to revoke a probation sentence that has not yet begun. Lombardo v. State, 244 Ga. App. 885, 537 S.E.2d 143 (2000).

Amending sentence during same court term by shortening imprisonment.

- Power of a superior court in a criminal case to amend a sentence during the same term of the court in which the sentence was imposed, by shortening the period of imprisonment, is not lost by entry of the defendant upon the service of such sentence. When, by an amendment so made during the same term, the period of service in the penitentiary, as fixed in a sentence for a reducible felony, is changed to a shorter term in the county correctional institution as for a misdemeanor, the amendment may also provide for service of the misdemeanor sentence, or any remainder thereof, on probation. Gobles v. Hayes, 194 Ga. 297, 21 S.E.2d 624 (1942).

Modification of sentence.

- O.C.G.A. § 42-8-34 does not allow a trial judge to modify a defendant's sentence after the term of court has expired. Levell v. State, 247 Ga. App. 615, 544 S.E.2d 523 (2001).

Increase in child-support payments before suspension revoked.

- Increase in the amount of the child-support payments pursuant to O.C.G.A. § 42-8-34 does not constitute double punishment or jeopardy if the defendant's sentence has been suspended and suspension has not been revoked. Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 (1981).

Resentencing as first offender inappropriate.

- After a defendant was convicted for statutory rape, the trial court lacked jurisdiction to resentence the defendant as a first offender or to rescind the conviction or confinement portion of the sentence. First offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced. State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009).

Use of juveniles' psychological tests.

- If appropriate safeguards to protect the confidentiality of the records were undertaken, results of psychological tests administered to juveniles appearing in the juvenile court could be computerized and could be used in later court proceedings. 1983 Op. Att'y Gen. No. U83-25.

Requirement to place defendant on probation.

- Unless the judge expressly states in the judge's order that the judge is placing the defendant on probation, the defendant receives the sentence which is prescribed. 1968 Op. Att'y Gen. No. 68-398.

Retention of jurisdiction despite appeal.

- Court originally passing sentence which includes placing the defendant on probation retains jurisdiction to revoke, rescind, or modify such probated sentence, notwithstanding that the original case was appealed when the decision of the appellate court was made the decision of trial court. 1962 Op. Att'y Gen. p. 134.

Awarding earned time against probated sentence would frustrate intent of sentencing judge who has made a previous judicial determination under O.C.G.A. §§ 17-10-1 and42-8-34 that the particular individual should be subject to a specific period of supervision and control while the individual is being reintegrated into society. 1982 Op. Att'y Gen. No. 82-58.

Inmate who actually serves three years incarceration of six-year sentence should receive only three years credit against concurrent ten-year probated sentence, and if the ten-year probated sentence is later revoked, all time served prior to revocation, including time served in prison pursuant to the separate sentence, should be considered only as probation time, meaning nonearning time under O.C.G.A. § 42-5-100. 1982 Op. Att'y Gen. No. 82-58.

Computation of sentence after parole and one year of probation revoked.

- When the inmate receives a sentence of 15 years, ten years to be served in confinement and the remaining five years to be served on probation; after three years and seven months of confinement the inmate is paroled; one year of the probated portion of the sentence is revoked after parole for ten months; and parole is revoked one month later, the inmate would be entitled to full credit for the three years and seven months the inmate spent in incarceration and the ten-month period the inmate served on parole and would be required to serve the remaining five years and seven months on the original ten-year confinement sentence plus an additional one year of the probated portion of the sentence which was revoked. 1986 Op. Att'y Gen. No. 86-7.

Requirement to contribute for probation supervisors' insurance.

- Probationer can be required to pay by court order, as a condition of his/her probation, a reasonable amount toward the cost of maintaining insurance to protect probation supervisors from personal liability should probationers be injured while performing court-ordered community service. 1983 Op. Att'y Gen. No. 83-18.

Retention of jurisdiction during term of probation.

- Court retains jurisdiction over a probationer during the term of the probationary sentence for the purpose of changing or modifying the order placing a defendant on probation during the whole of the probationary term imposed, or until the court finds that the conditions of probation have been breached. 1945-47 Op. Att'y Gen. p. 107.

Service of entire sentence by youthful offender.

- Judge may require service of the entire sentence, even though the service of such sentence would run past the fourteenth or twenty-first birthday of the child; this conclusion is based on the fact that the age of the child designates only the length of jurisdiction to "revoke," rather than jurisdiction per se. 1963-65 Op. Att'y Gen. p. 514.

Child abandonment prosecution not barred by bastardy prosecution.

- Bastardy prosecution is not a bar to a subsequent child abandonment prosecution. 1969 Op. Att'y Gen. No. 69-323.

Liability of father for failure to support.

- Father is criminally liable, throughout the minority of his illegitimate child, for a failure to support that child. 1969 Op. Att'y Gen. No. 69-323.

Suspended sentence in abandonment and bastardy cases is permissible and the court may retain jurisdiction of the offender until the offender's child has reached the age designated by the statute. 1963-65 Op. Att'y Gen. p. 514.

Hearing for probation violator.

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

Collection of funds by probation officer.

- 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.

Power of Board of Corrections to change probation.

- Board of Offender Rehabilitation (Corrections) does not have power to change the conditions of probation; these, including travel restrictions, could be changed only by order of the sentencing court. 1971 Op. Att'y Gen. No. U71-83.

Board prohibited from placing terms on probationer not required by court.

- Board of Probation (now Board of Corrections) or its agents may not place on a prisoner, in connection with the prisoner's probation, any terms or conditions not required of the prisoner by court order passed by the trial judge at the conclusion of the hearing held for the purpose of considering the prisoner's probation. 1958-59 Op. Att'y Gen. p. 223.

Revocation.

- Board has jurisdiction to revoke "probation" or conditional release granted by the board; but during that period in which the inmate is serving a portion of the sentence on probation ordered by the court, the court has jurisdiction of revocation proceedings. 1970 Op. Att'y Gen. No. 70-201.

Some courts excluded from working with probation supervisors.

- Courts in which state offenses cannot be tried are excluded from working with the probation supervisors. 1979 Op. Att'y Gen. No. U79-27.

Authority of county recorder's court.

- County recorder's court does not have authority to place persons convicted of traffic offenses under the supervision of probation supervisors of the Department of Offender Rehabilitation (Corrections). 1979 Op. Att'y Gen. No. U79-27.

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 526-536. 63A Am. Jur. 2d, Public Officers and Employees, § 460.

C.J.S.

- 24 C.J.S., Criminal Law, §§ 1996, 1998, 2032, 2060, 2066, 2075-2078, 2144-2161.

ALR.

- Power of trial court to change sentence after affirmance, 23 A.L.R. 536.

Constitutionality of statute conferring on court power to suspend sentence, 26 A.L.R. 399; 101 A.L.R. 402; 109 A.L.R. 1048; 132 A.L.R. 819; 158 A.L.R. 1315.

Imposition or enforcement of sentence which has been suspended without authority, 141 A.L.R. 1225.

Propriety and effect of court's indication to jury that court would suspend sentence, 8 A.L.R.2d 1001.

Consideration of accused's juvenile court record in sentencing for offense committed as adult, 64 A.L.R.3d 1291.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part, 73 A.L.R.3d 474.

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.

Propriety of conditioning probation upon defendant's posting of bond guaranteeing compliance with terms of probation, 79 A.L.R.3d 1068.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

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.

Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

Sufficiency of hearsay evidence in probation revocation hearings, 21 A.L.R.6th 771.

Defendant's right to credit for time spent in halfway house, rehabilitation center, or similar restrictive environment as condition of pretrial release, 46 A.L.R.6th 63.