O.C.G.A.
O.C.G.A.

O.C.G.A. § 42-8-35.4 (2019)

Confinement in probation detention center

✓ 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 and conditions of probation which may be imposed, a court may require that a defendant convicted of a felony and sentenced to a period of not less than one year on probation or a defendant who has been previously sentenced to probation for a forcible misdemeanor as defined in paragraph (7) of Code Section 16-1-3 or a misdemeanor of a high and aggravated nature and has violated probation or other probation alternatives and is subsequently sentenced to a period of not less than one year on probation shall complete satisfactorily, as a condition of such probation, a program of confinement, not to exceed 180 days, in a probation detention center. Probationers so sentenced shall be required to serve the period of confinement, not to exceed 180 days, specified in the court order. (b) The court shall determine that the defendant is at least 17 years of age at the time of sentencing. (c) During the period of confinement, the Department of Corrections may transfer the probationer to other facilities in order to provide needed physical and mental health care or for other reasons essential to the care and supervision of the probationer or as necessary for the effective administration and management of its facilities.

History

Code 1981, § 42-8-35.4, enacted by Ga. L. 1995, p. 627, § 1; Ga. L. 2009, p. 99, § 1/HB 226; Ga. L. 2012, p. 899, § 7-9/HB 1176; Ga. L. 2015, p. 422, § 4-1/HB 310.

Annotations

Editor’s notes. Ga. L. 2009, p. 99, § 2/HB 226, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to probationers sentenced on or after July 1, 2009. Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be

considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act.” 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 on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 290 (2012). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

JUDICIAL DECISIONS Confinement of misdemeanants. - Defendant was not eligible under O.C.G.A. § 17-10-3 for state probation detention center sentencing for misdemeanor battery since the defendant did not fit into one of the narrow categories set forth in O.C.G.A. § 42-8-35.4. Anderson v. State, 261 Ga. App. 716, 583 S.E.2d 549, 2003 Ga. App. LEXIS 746 (2003). Sentence authorized. - O.C.G.A. § 42-8-35.4 allowed a court to order the confinement of a defendant in a probation detention center if the defendant was convicted of a felony and sentenced to a period of at least one year on probation. Defendant’s sentence met these statutory requirements. Johnson v. State, 283 Ga. App. 425, 641 S.E.2d 655, 2007 Ga. App. LEXIS 81 (2007). Construction with O.C.G.A. § 1710-1. - Reading O.C.G.A. §§ 17-101(a)(3)(A) and 42-8-35.4 together, a court can confine a probation violator in a probation detention center, but not if probation is revoked for any of the reasons enumerated in O.C.G.A. § 17-101(a)(3)(A), and only if the defendant was put on probation previously for a forcible misdemeanor or a misdemeanor of a high and aggravated nature; a defendant who pled guilty to the misdemeanors of habitual violator, driving under the influence, possession of marijuana, and oper-

ating a vehicle without proof of insurance did not meet the criteria for confinement in a probation detention center upon revocation of probation under O.C.G.A. § 428-35.4, and so confinement in such a facility was unauthorized. Wilson v. Windsor, 280 Ga. 576, 630 S.E.2d 367, 2006 Ga. LEXIS 258 (2006). Transfer. - Trial court did not err in denying a probationer’s motion to modify a sentence because the probationer’s claim was cognizable only in a mandamus action against the Commissioner of the Department of Corrections or in a petition for habeas corpus since the probationer’s sole complaint went to the Department’s decision to transfer the probationer from a probation center to a state prison under O.C.G.A. § 42-8-35.4(c), and the probationer expressly agreed as a special condition of probation that the Department could transfer the probationer to other facilities if necessary; Code Section 42-835.4 does not require the Department to transfer a probationer to a probation detention center nor does the statute prohibit the Department from transferring a probationer to a prison. Hillis v. State, 303 Ga. App. 201, 692 S.E.2d 793, 2010 Ga. App. LEXIS 305 (2010). Defendant eligible to serve ordered term of confinement. - Trial court did not err in denying the defendant’s motion

to correct an illegal sentence because, in accordance with the plain language of the First Offender Act, O.C.G.A. § 42-8-65(c), during the defendant’s term of confinement, the defendant, who pled guilty to first degree cruelty to children, O.C.G.A. § 16-5-70, was deemed to be a convicted felon for purposes of the State-Wide Probation Act, O.C.G.A. § 42-8-35.4, and consequently, within a category of persons

eligible to serve the ordered term of confinement at a probation detention center; the legislature is presumed to have had full knowledge of the First Offender Act when the legislature enacted the StateWide Probation Act. Mason v. State, 310 Ga. App. 118, 712 S.E.2d 76, 2011 Ga. App. LEXIS 433 (2011), cert. denied, No. S11C1531, 2011 Ga. LEXIS 736 (Ga. Oct. 3, 2011).

OPINIONS OF THE ATTORNEY GENERAL Confinement of misdemeanants. - While misdemeanants may only be referred to probation centers upon initial sentencing pursuant to O.C.G.A. § 42-835.4, misdemeanants may also be referred to such facilities pursuant to probation

revocation proceedings under O.C.G.A. § 42-8-34.1 and after a probation revocation proceeding pursuant to O.C.G.A. § 17-10-1(a)(3)(A). 1999 Op. Att’y Gen. No. 99-14.

Notes of Decisions
Cited in 13 cases (1 in the last 5 years), 1996–2023 · leading case: Anderson v. State, 583 S.E.2d 549 (Ga. Ct. App. 2003).
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Anderson v. State, 583 S.E.2d 549 (Ga. Ct. App. 2003). · cites it 34× “OCGA § 42-8-35.4, which was in existence when OCGA § 17-10-3 was amended, provides, in pertinent part: (a) In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant convicted of a felony and sentenced to…”
Wilson v. Windsor, 630 S.E.2d 367 (Ga. 2006). · cites it 18× “OCGA § 42-8-35.4 sets out the circumstances under which a defendant can be confined in a probation detention center.”
Brady v. State, 541 S.E.2d 396 (Ga. Ct. App. 2000). · cites it 11× “Brady argues that the trial court was not authorized to sentence him to confinement in a detention center for a misdemeanor offense and that his sentence, therefore, is void.”
Price v. State, 738 S.E.2d 289 (Ga. Ct. App. 2013). · cites it 6× “” *87 Former OCGA § 42-8-35.4, applicable to Price’s sentence in 2010, provided: (a) In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant convicted of a felony and sentenced to a period of not less…”
Mason v. State, 712 S.E.2d 76 (Ga. Ct. App. 2011). · cites it 18× “Mason claims the trial court was not authorized to order him confined to a probation detention center, citing a provision of the State-wide Probation Act, 6 OCGA § 42-8-35.4 (a). 7 Under that provision, our courts may require confinement at a probation detention center for two…”
Johnson v. State, 475 S.E.2d 595 (Ga. 1996). · cites it 2× “See OCGA §§ 42-8-35.4; 42-8-35.5. Designed to give the trial court sentencing alternatives short of total incarceration, these three statutes serve the dual purposes of promoting offender rehabilitation and alleviating prison overcrowding.”
Glover v. State, 521 S.E.2d 84 (Ga. Ct. App. 1999). · cites it 4× “The use of probation detention centers as an alternative to incarceration is authorized by OCGA § 42-8-35.4 (a), which states that “[i]n addition to any other terms and conditions of probation .”
United States v. Giovanni Ramirez, 347 F.3d 792 (9th Cir. 2003). “045 (3) (West 2003) (establishing short “shock incarceration” in Youthful offender basic training program as option for offenders); Ga. Code Ann. § 42-8-35.4 (a) (West 2002) (permitting trial judge to require a defendant who has violated probation to complete a program of…”
Johnson v. State, 641 S.E.2d 655 (Ga. Ct. App. 2007). · cites it 2× “OCGA § 42-8-35.4 sets out the circumstances under which a defendant may be confined in a probation detention center.”
Hillis v. State, 692 S.E.2d 793 (Ga. Ct. App. 2010). · cites it 6× “OCGA § 42-8-35.4 authorizes the trial court to sentence a defendant such as Hillis to a program of confinement in a probation detention center and expressly permits the Department to exercise its discretion and transfer a probationer “to other facilities in order to provide…”
Matthew Douglas Pittman v. State (Ga. Ct. App. 2023). · cites it 6× “2 Thereafter, probation notified the State that the PDC would not accept Pittman because he had not been convicted of a felony, as required under OCGA § 42-8-35.4,4 to be eligible for placement in a PDC.”
Sean Timothy Price v. State (Ga. Ct. App. 2013). · cites it 6× “” Former OCGA § 42-8-35.4, applicable to Price’s sentence in 2010, provided: (a) In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant convicted of a felony and sentenced to a period of not less than…”
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— 42-8-35.4(a) — 1 case
Glover v. State, 521 S.E.2d 84 (Ga. Ct. App. 1999). “The use of probation detention centers as an alternative to incarceration is authorized by OCGA § 42-8-35.4 (a), which states that “[i]n addition to any other terms and conditions of probation .”
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