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

O.C.G.A. § 42-8-39 (2019)

Suspension of sentence does not place defendant on probation

✓ 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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In all criminal cases in which the defendant is found guilty or in which a plea of guilty or of nolo contendere is entered and in which the court after imposing sentence further provides that the execution of the sentence shall be suspended, such provision shall not have the effect of placing the defendant on probation as provided in this article.

History

Ga. L. 1956, p. 27, § 13; Ga. L. 1960, p. 1148, § 2; Ga. L. 1965, p. 413, § 4; Ga. L. 2015, p. 422, § 4-1/HB 310.

Annotations

Editor’s notes. Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, pro-

vides 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 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015).

JUDICIAL DECISIONS Comparison to other sections. - Ga. L. 1965, p. 413, § 4 (see now O.C.G.A. § 42-8-39) dealt with the effect of suspended sentences while former Code 1933, §§ 27-2502 and 27-2506.1 (see now O.C.G.A. §§ 17-10-1 and 17-10-4) dealt with authority to impose the sentences. Cross v. State, 128 Ga. App. 774, 197 S.E.2d 853, 1973 Ga. App. LEXIS 1612 (1973). Authorized conditions. - Condition which would be authorized in the case of a probated sentence would be authorized in the case of a suspended sentence. Falkenhainer v. State, 122 Ga. App. 478, 177 S.E.2d 380, 1970 Ga. App. LEXIS 913 (1970). Effect of amendment. - This section was amended to specify that suspended sentences not come under this article, but it did not provide any change allowing the court to suspend sentences. Cross v. State, 128 Ga. App. 774, 197 S.E.2d 853, 1973 Ga. App. LEXIS 1612 (1973). Suspension upon condition did not amount to probation. - Suspension of a convicted drunk driver’s sentence upon condition that the driver not drive for 120 days did not have the effect of placing the

driver on probation since the driver’s driver’s license was automatically suspended for 120 days. Williams v. State, 191 Ga. App. 217, 381 S.E.2d 399, 1989 Ga. App. LEXIS 527 (1989). Distinguishing length of service for suspended and probated sentences. - Court may, at the time of sentencing, specify the amount to be paid by the parent for the support of the minor child and may suspend the service of the sentence pending the minority of the child. When the child reaches majority, the sentence of course is at an end. However, service of any sentence so suspended in abandonment cases may be ordered at any time before the child reaches the age of 21. However, when a sentence is merely probated, the probationary feature of the sentence ends when the elapsed time equals the maximum sentence of confinement which could have been imposed. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177, 1978 Ga. App. LEXIS 2922 (1978). Abuse of discretion by court. - Trial court abuses the court’s discretion when the court places a case on the dead docket over the defendant’s objection. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144, 1970 Ga. App. LEXIS 1315 (1970).

OPINIONS OF THE ATTORNEY GENERAL Running of suspended sentence conditioned on payment of fine. -

Suspended sentence conditioned on payment of fine does not begin to run if fine is

not paid until state or defendant initiates action to have suspension revoked. 1981 Op. Att’y Gen. No. U81-42. Effect of suspension of part of sentence. - In the imposition of a sentence, if the trial court suspends service of part of sentence, the provision for suspension shall not have the effect of placing the defendant on probation; thus, once a probated sentence is revoked and the probationer has been sentenced to a definite period of years of imprisonment and the remainder of the defendant’s sentence has been suspended, this sentence does not have the effect of placing the defendant on probation and, therefore, such sentence cannot be revoked. 1968 Op. Att’y Gen. No. 68-165.

Modification of original sentence upon probation. - When a prisoner is placed on probation, the original sentence is subject to modification by the rendering court at any time during the period of probation; the judge imposing sentence is granted the power and authority to revoke suspension or probation when the defendant has violated any of the rules or regulations prescribed by the court. 1968 Op. Att’y Gen. No. 68-165. Remanding offender to prison upon suspension of sentence. - State Board of Pardons and Paroles cannot remand offender to prison when sentence has been suspended by court. 1963-65 Ga. Op. Att’y Gen. 36.

RESEARCH REFERENCES Am. Jur. 2d. 21 Am. Jur. 2d, Criminal Law, §§ 526536. C.J.S. 24 C.J.S., Criminal Law, §§ 1975, 21442161. ALR. What constitutes “good behavior” within statute or judicial order expressly conditioning suspension of sentence thereon, 58 A.L.R.3d 1156.

Pretrial diversion: statute or court rule authorizing suspension or dismissal of criminal prosecution on defendant’s consent to noncriminal alternative, 4 A.L.R.4th 147. Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 1983–2024 · leading case: Hendrix v. The State., 831 S.E.2d 517 (Ga. Ct. App. 2019).
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Hendrix v. The State., 831 S.E.2d 517 (Ga. Ct. App. 2019). · cites it 6× “" OCGA § 42-8-39. See Williams v. State , 191 Ga.”
Williams v. State, 381 S.E.2d 399 (Ga. Ct. App. 1989). · cites it 4× “” Appellant contends that the trial court’s sentence added a condition to a suspended sentence, which had the effect of placing appellant on probation, in direct conflict with OCGA § 42-8-39. That statute states: “In all criminal cases in which the defendant is found guilty .”
Oliver v. State, 700 S.E.2d 861 (Ga. Ct. App. 2010). · cites it 2× “1 Although suspended and probated sentences are similar, OCGA § 42-8-39 clearly distinguishes the two, specifying that an order suspending a defendant’s sentence does “not have the effect of placing the defendant on probation.”
Harp v. State, 491 S.E.2d 923 (Ga. Ct. App. 1997). · cites it 2× “The trial court’s only term or condition relating to the October 7, 1996 suspended sentence was payment of the $5,000 fine.”
Strickland v. State, 300 S.E.2d 537 (Ga. Ct. App. 1983). · cites it 2× “” (Compare OCGA § 42-8-39 (Code Ann. § 27-2714), which also provides that suspension of a sentence “shall not have the effect of placing [the] defendant on probation.”
Rollins v. Campbell (In Re Rollins), 200 B.R. 427 (Bankr. N.D. Ga. 1996). · cites it 2× “§ 27-2714 and currently codified at O.C.G.A. § 42-8-39 (1994)), and since a period of probation could not exceed the maximum time that a defendant could be incarcerated (Ga.”
Hughes v. Town of Tyrone, 440 S.E.2d 58 (Ga. Ct. App. 1994). · cites it 2× “A suspended sentence is not the same as being put on probation (OCGA § 42-8-39); “ ‘[t]he only real distinction between a probated sentence and a suspended sentence is that a probated sentence is served under the supervision of the probation officers pursuant to the “Statewide…”
United States v. Geronimo Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001). · cites it 2× “See O.C.G.A. § 42-8-39 (Michie 1997) ("In all criminal cases .”
State v. Theodore Roundtree (Ga. Ct. App. 2024). · cites it 2× “See also OCGA § 42-8-39 (“[i]n all criminal cases .”
United States v. Geronimo Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001). “See O.C.G.A. § 42-8-39 (Michie 1997) (“In all criminal cases .”
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.