O.C.G.A.

O.C.G.A. § 42-8-35.1 (2019)

Probation boot camp unit as special alternative incarceration

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) Notwithstanding any other terms or conditions of probation which may be imposed, a court may provide that probationers sentenced for felony offenses to a period of time of not less than one year on probation as a condition of probation shall satisfactorily complete a program of confinement in a special alternative incarceration - probation boot camp unit of the Department of Corrections for a period of 120 days computed from the time of initial confinement in the unit; provided, however, that the Department of Corrections may release the defendant upon service of 90 days in recognition of excellent behavior. (b) Before a court may place such condition upon the sentence, an initial investigation shall be completed by the officer which indicates that the probationer is qualified for such treatment in that the individual does not appear to be physically or mentally disabled in a way that would prevent him or her from strenuous physical activity, that the individual has no obvious contagious diseases, that the individual is not less than 17 years of age nor more than 30 years of age at the time of sentencing, and that the Department of Corrections has granted provisional approval of the placement of the individual in the special alternative incarceration - probation boot camp unit. (c) In every case when an individual is sentenced under the terms of this Code section, the sentencing court shall, within its probation order, direct the Department of Corrections to arrange with the sheriff’s office in the county of incarceration to have the individual delivered to a designated unit of the Department of Corrections within a specific date not more than 15 days after the issuance of such probation order by the court. (d) At any time during the individual’s confinement in the unit, but at least five days prior to his or her expected date of release, the Department of Corrections shall certify to the trial court as to whether the individual has satisfactorily completed the condition of probation provided in subsection (a) of this Code section. (e) Upon the receipt of a satisfactory report of performance in the

program from the Department of Corrections, the trial court shall release the individual from confinement in the special alternative incarceration - probation boot camp unit. However, the receipt of an unsatisfactory report shall be grounds for revocation of the probated sentence as would any other violation of a condition or term of probation. (f) The satisfactory report of performance in the program from the Department of Corrections shall, in addition to the other requirements specified in this Code section, require participation of the individual confined in the unit in such adult education courses necessary to attain the equivalency of a grade five competency level as established by the State Board of Education for elementary schools. Those individuals who are mentally disabled as determined by initial testing shall be exempt from mandatory participation. After the individual is released from the unit, it shall be a special condition of probation that the individual participate in an education program in the community until grade five level competency is achieved or active probation supervision terminates. It shall be the duty of the Department of Corrections to certify to the trial court that such individual has satisfactorily completed such condition of probation while on active probation supervision. The receipt of an unsatisfactory report may be grounds for revocation of the probated sentence as would any other violation of a condition or term of probation. Under certain circumstances, the probationer may be exempt from this requirement if it is determined by the officer that community education resources are inaccessible to the probationer.

History

Ga. L. 1982, p. 1097, § 1; Code 1981, § 42-8-35.1, enacted by Ga. L. 1982, p. 1097, § 2; Ga. L. 1983, p. 3, § 31; Ga. L. 1984, p. 446, § 1; Ga. L. 1987, p. 654, § 1; Ga. L. 1991, p. 1751, § 1; Ga. L. 1993, p. 444, § 1; Ga. L. 1993, p. 1664, § 1; Ga. L. 1995, p. 1302, § 14; Ga. L. 2015, p. 422, § 4-1/HB 310.

Annotations

Editor’s notes. Ga. L. 1982, p. 2283, § 2 also enacted a Code Section 42-8-35.1, which was redesignated as Code Section 42-8-35.2 by Ga. L. 1983, p. 3, § 31. Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: “This Act shall become effec-

tive July 1, 2015, and shall apply to sentences entered on or after such date.” Administrative rules and regulations. Special Alternative Incarceration, Official Compilation of the Rules and Regulations of the State of Georgia, Board of Corrections, Departmental Operations, Offender Administration, Rule 125-2-4.21. Law reviews. For note on 1991 amendment of this Code section, see 8 Ga. St. U. L. Rev. 161 (1992). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

JUDICIAL DECISIONS Incarceration not imposable as condition for probation. - In the absence of express statutory authority rec-

ognizing continuous and uninterrupted incarceration in a jail or penitentiary as a viable condition of probation, the imposi-

tion of any term of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation is unauthorized by law. Pitts v. State, 206 Ga. App. 635, 426 S.E.2d 257, 1992 Ga. App. LEXIS 1730 (1992). Penalty for violation of diversion center regulations. - It was error to hold that a probationer’s failure to abide by the diversion center’s regulations made the probationer liable for the felony offense of escape rather than for the mere revocation of the probationer’s probation. Unsatisfactory performance in the program would subject the probationer to revocation of probation as specified by

O.C.G.A. § 42-8-38; however an alternative to revocation of probation would be the imposition of the more severe sanctions of O.C.G.A. § 16-10-52(a)(3) (redesignated as (a)(5) in 1997). When any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered. Chandler v. State, 257 Ga. 775, 364 S.E.2d 273, 1988 Ga. LEXIS 60 (1988). Person convicted of a misdemeanor may not be sentenced to attend a boot camp as a condition of probation. Johnson v. State, 267 Ga. 77, 475 S.E.2d 595.

Notes of Decisions

Cited in 9 cases, 1988–2001 · leading case: Johnson v. State, 475 S.E.2d 595 (Ga. 1996).

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Johnson v. State, 475 S.E.2d 595 (Ga. 1996). · cites it 18× “We granted certiorari to determine whether a person convicted of a misdemeanor may be sentenced to attend boot camp as a condition of probation under OCGA § 42-8-35.1. For the reasons that follow, we reverse.”

Pitts v. State, 426 S.E.2d 257 (Ga. Ct. App. 1992). · cites it 8× “, OCGA § 42-8-35.1 (providing for a 90-day period of confinement in a probation boot camp, rather than a jail or penitentiary, as a condition of probation); OCGA § 42-8-35 (6) (providing that the trial court may order that the defendant "[r]emain within a specified location" as…”

Chandler v. State, 364 S.E.2d 273 (Ga. 1988). · cites it 8× “Under subsection (f) of OCGA § 42-8-35.1, which creates the "Special Alternative Incarceration" program, unsatisfactory performance in the program would subject the probationer to revocation of probation as specified by OCGA § 42-8-38.”

Grice v. Detwiler, 488 S.E.2d 755 (Ga. Ct. App. 1997). · cites it 8× “" See OCGA § 42-8-35.1. She also testified that she and Detwiler lied to Grice in 1982 because they believed he would seek custody and take the child to Mexico, although she states no factual basis for this belief and Grice has no apparent connection with that country.”

Penaherrera v. State, 438 S.E.2d 661 (Ga. Ct. App. 1993). · cites it 6× “OCGA § 42-8-35.1 (a). It, too, constitutes confinement of a nature and to a degree less than imprisonment in a jail or penitentiary.”

Smith v. Gaither, 549 S.E.2d 351 (Ga. 2001). · cites it 6× “OCGA § 42-8-35.1, on the other hand, sets forth the circumstances under which a trial court may condition a sentence of probation upon the probationer successfully completing a probationer boot camp program.”

Glover v. State, 521 S.E.2d 84 (Ga. Ct. App. 1999). · cites it 4× “Although subsection (b) directs the trial court to consider certain alternatives to incarceration, the authority for imposing such alternatives as special conditions of probation is found in other statutes, and not in subsection (b).”

McKinney v. State, 525 S.E.2d 395 (Ga. Ct. App. 1999). · cites it 2× “OCGA § 42-8-35.1 provides for confinement in probation boot camp as a condition of probation.”

Johnson v. State, 466 S.E.2d 63 (Ga. Ct. App. 1996). · cites it 2× “It is true that OCGA § 42-8-35.1 (a) provides that a court may order completion of boot camp as a condition for probationers sentenced for felony offenses.”

— 42-8-35.1(b) — 1 case

Smith v. Gaither, 549 S.E.2d 351 (Ga. 2001). “OCGA § 42-8-35.1, on the other hand, sets forth the circumstances under which a trial court may condition a sentence of probation upon the probationer successfully completing a probationer boot camp program.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.