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

O.C.G.A. § 42-8-37 (2019)

Effect of termination of probated portion of sentence; review of cases of persons receiving probated sentence; reports

✓ 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) Upon the termination of the probated portion of a sentence, the probationer shall be released from probation and shall not be liable to sentence for the crime for which probation was allowed; provided, however, that the foregoing shall not be construed to prohibit the conviction and sentencing of the probationer for the subsequent commission of the same or a similar offense or for the subsequent continuation of the offense for which he or she was previously sentenced. (b) The court may at any time cause the probationer to appear before it to be admonished or commended and, when satisfied that its action would be for the best interest of justice and the welfare of society, may discharge the probationer from further supervision. (c)(1) The case of each person receiving a probated sentence of three years or more shall be reviewed by the officer responsible for such case after service of three years on probation, and a written report of

the probationer’s progress shall be submitted to the sentencing court along with the officer’s recommendation as to early termination. The report shall specifically state whether the probationer has been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37, whether the probationer has had his or her probation revoked in the immediately preceding 24 months, and the status of the probationer’s payments toward any restitution imposed. Each such case shall be reviewed and a written report submitted annually thereafter until the termination, expiration, or other disposition of the case. If early termination is recommended in the written report, DCS shall notify the prosecuting attorney and simultaneously provide the court with an order to terminate such probation. The court shall execute the order to terminate unless the court or the prosecuting attorney requests a hearing on such matter within 30 days of the receipt of such order. The court shall set the matter for a hearing as soon as possible but not more than 90 days after receiving the order to terminate. The court shall take whatever action it determines would be for the best interest of justice and the welfare of society. (2) This subsection is intended to be retroactive and applied to any probationer under the supervision of DCS. (d)(1) When a probationer is on probation for a qualified offense, DCS shall provide the court with an order to terminate his or her probation if, after serving three years on probation, the probationer has: (A) Paid all restitution owed; (B) Not had his or her probation revoked in the immediately preceding 24 months; and (C) Not been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37. (2) When the court is presented with such order, it shall execute the order to terminate unless the court or the prosecuting attorney requests a hearing on such matter within 30 days of the receipt of such order. The court shall set the matter for a hearing as soon as possible but not more than 90 days after receiving the order to terminate. The court shall take whatever action it determines would be for the best interest of justice and the welfare of society. (3) This subsection is intended to be retroactive and applied to any probationer under the supervision of DCS. (e)(1) When a probationer is on probation for life for a sexual felony as defined in Code Section 16-5-21, DCS shall file a petition to terminate his or her probation if, after serving ten years on probation, the probationer has:

(A) Paid all restitution owed; (B) Not had his or her probation revoked during such period; (C) Not been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37; and (D) Not been classified as a sexually dangerous predator by the Sexual Offender Risk Review Board. Within 30 days before issuing an order terminating the offender’s probation, the court or its clerk must provide written notice to the District Attorney and the State Board of Pardons and Paroles regarding the court’s intention to terminate such offender’s term of probation. The prosecuting attorney shall be given an opportunity to be heard on the matter during the 30 days before the termination order is issued by the court. (2) When the court is presented with such petition, it shall take whatever action it determines to be for the best interest of justice and the welfare of society. When such petition is unopposed, the court shall issue an order as soon as possible or otherwise set the matter for a hearing within 90 days of receiving such petition. Such petition shall request an updated classification from the Sexual Offender Risk Review Board. Such classification shall be requested six months before the petition for removal is filed, and the board shall render such reclassification within five months of the petitioner’s request. (3) This subsection is intended to be retroactive and applied to any probationer under the supervision of DCS. (4) If such petition is not granted, a petition shall be filed every five years thereafter until the probationer meets the requirements under paragraph (1) of this subsection.

History

Ga. L. 1956, p. 27, § 11; Ga. L. 1972, p. 604, § 9; Ga. L. 1985, p. 516, § 1; Ga. L. 2012, p. 899, § 7-10/HB 1176; Ga. L. 2015, p. 422, § 4-1/HB 310; Ga. L. 2017, p. 585, § 2-8/SB 174; Ga. L. 2018, p. 550, § 213/SB 407; Ga. L. 2021, p. 223, § 2/SB 105; Ga. L. 2023, p. 637, § 6-5/HB 188, effective May 4, 2023. The 2021 amendment, effective May 3, 2021, rewrote subsections (c) and (d). The 2023 amendment, effective May 4, 2023, added subsection (e).

Annotations

Editor’s notes. 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.” Ga. L. 2023, p. 637, § 1-1/HB 188, not

codified by the General Assembly, provides: “This Act shall be known and may be cited as ‘Mariam’s Law.’” Ga. L. 2023, p. 637, § 7-1/HB 188, not codified by the General Assembly, provides, in part, that “the punishment provisions of this Act shall apply to all offenses committed on and after July 1, 2023.” 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). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).

JUDICIAL DECISIONS Formalization of “discharge” unnecessary. - “Discharge” of a non-firstoffender probationer is automatic upon the successful completion of the terms of the sentence and is not dependent upon the subsequent formalization of that successful completion. State v. Mills, 268 Ga. 873, 495 S.E.2d 1, 1998 Ga. LEXIS 20 (1998). Effect of completing first-offender probationary sentence. - Because the

defendant had completed a three-year first-offender probationary sentence and had been discharged without court adjudication of guilt pursuant to O.C.G.A. § 42-8-62 at the time the probationer allegedly violated O.C.G.A. § 16-11-131, the trial court properly dismissed the charge. State v. Mills, 268 Ga. 873, 495 S.E.2d 1, 1998 Ga. LEXIS 20 (1998).

RESEARCH REFERENCES C.J.S. 24 C.J.S., Criminal Law, §§ 2144-2161. ALR. Governor’s authority to remit forfeited bail bond, 77 A.L.R.2d 988.

Notes of Decisions
Cited in 6 cases (2 in the last 5 years), 1998–2025 · leading case: Kinsey v. The State., 829 S.E.2d 398 (Ga. Ct. App. 2019).
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Kinsey v. The State., 829 S.E.2d 398 (Ga. Ct. App. 2019). · cites it 12× “*318 On December 5, 2017, after the Appellant had served about four years of her ten-year probation sentence, her probation officer filed a petition for termination of probation pursuant to OCGA §§ 42-8-37 (d) and 42-8-60 (e). 4 In the petition, the Appellant's probation officer…”
Clark v. State, 912 S.E.2d 593 (Ga. 2025). · cites it 12× “See also OCGA § 42-8-37 (b). Accordingly, any order presented by DCS to the trial court in this context would be a “proposed” order unless and until it is executed and entered by the trial court.”
State v. Mills, 495 S.E.2d 1 (Ga. 1998). · cites it 2× “) OCGA § 42-8-37 (a). “[I]n its ordinary signification ‘shall’ is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.”
Carrinn J. Taylor v. State (Ga. Ct. App. 2020). · cites it 2× “2 State argued that under OCGA § 42-8-37 (d) (1), the petition was void as a matter of law, and therefore, the trial court’s order granting the petition also was void.”
Randall Miller v. State (Ga. Ct. App. 2023). · cites it 2× “In September 2021, the Georgia Department of Community Supervision (“DCS”) sent the State a petition for the early termination of Miller’s probation under OCGA § 42-8-37 on the ground that this was “his first felony conviction,” his “serve time was not more than 12 months,” and…”
Kirk v. State, 694 S.E.2d 166 (Ga. Ct. App. 2010). · cites it 2× “2 See OCGA § 42-8-37 (a) (“Upon the termination of the period of probation, the probationer shall be released from probation and shall not be liable to sentence for the crime for which probation was allowed!.”
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