TITLE 42 PENAL INSTITUTIONS

Section 9. Pardons and Paroles, 42-9-1 through 42-9-90.

ARTICLE 2 GRANTS OF PARDONS, PAROLES, AND OTHER RELIEF

42-9-51. Final hearing for parole or conditional release violator; order and statement as to disposition of violator; revocations without hearing and temporary revocations.

A parolee who has allegedly violated the terms of his parole or conditional release shall, except as otherwise provided in this subsection, have a right to a final hearing before the board, to be held within a reasonable time after the occurrence of one of the events listed in this subsection.No final hearing shall be required or permitted if the parolee or conditional releasee has been convicted of or entered any form of guilty plea or plea of nolo contendere in any federal or state court of record to any felony crime, or misdemeanor involving physical injury, committed by the parolee or conditional releasee during a term of parole or conditional release, and which new conviction results in imposition by the convicting court of a term of imprisonment, and, in such cases, the board shall revoke the entire unexpired term of parole or conditional release. In no case shall a final hearing be required if the parolee or conditional releasee has signed a waiver of final hearing.The final hearing, if any, shall be held within a reasonable time:
1. After an arrest warrant has been issued by a member of the board and probable cause for revocation has been found by the preliminary hearing officer;
2. After a majority of the board overrules a determination by the preliminary hearing officer that probable cause does not exist;
3. After the board or two of its members are informed of an alleged violation and decide to consider the matter of revocation without issuing a warrant for the alleged violator's arrest; or
4. After a determination has been made that no preliminary hearing is required under subsection (a) of Code Section 42-9-50.
The purpose of the hearing shall be to determine whether the alleged violator has in fact committed any acts which would constitute a violation of the terms and conditions of his parole or conditional release and whether those acts are of such a nature as to warrant revocation of parole or conditional release.
When a parolee or conditional releasee has been convicted of any crime, whether a felony or a misdemeanor, or has entered a plea of guilty or nolo contendere thereto in a court of record, his parole or conditional release may be revoked without a hearing before the board. Moreover, whenever it shall appear to the board that a parolee or conditional releasee either has absconded or has been convicted of another crime in a federal court or in a court of record of another state, the board may issue an order of temporary revocation of parole or conditional release, together with its warrant for such violator, which shall suspend the running of the parolee's or conditional releasee's time from the date of the temporary revocation of parole or conditional release to the date of the determination by the board as to whether the temporary revocation shall be made permanent. If the board determines that there has been no violation of the conditions of the parole or conditional release, then the parolee or the releasee shall be reinstated upon his original parole or conditional release without any loss of time and the order of temporary revocation of parole or conditional release and the warrant shall be withdrawn.
In all cases in which there is a hearing before the board, the alleged violator shall be given written notice of the time and place of the hearing and of the claimed violations of parole or conditional release. In addition, this notice shall advise him of the following rights:
1. His right to disclosure of evidence introduced against him; provided, however, this right shall not be construed to require the board to disclose to an alleged violator confidential information contained in its files which has no direct bearing on the matter of parole revocation;
2. His opportunity to be heard in person and to present witnesses and documentary evidence;
3. His right to confront and cross-examine adverse witnesses, unless a majority of the board determines that disclosure of a particular informant's identity would cause that informant or a member of his family to suffer a risk of harm; and
4. His right to subpoena witnesses and documents through the board as provided in subsections (e) and (f) of this Code section.
  The notice shall be served by delivering it to the alleged violator in person, by delivering it to a person 18 years or older at his last known place of residence, or by depositing it in the mail properly addressed to his last known place of residence.
The board shall have the power to issue subpoenas to compel the attendance of witnesses at the hearing provided for by this Code section. The subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county in which the hearing provided for by this Code section is held for an order requiring obedience. Failure to comply with the order shall be cause for punishment as for contempt of court. The manner of service of subpoenas and costs of securing the attendance of witnesses, including fees and mileage, shall be determined, computed, and assessed in the same manner as prescribed by law for cases in the superior court.
The board shall have the power to issue subpoenas for the production of documents or other written evidence at the hearing provided for by this Code section, but upon written request made promptly and before the hearing the board may quash or modify the subpoena if it is unreasonable or oppressive or may condition denial of the request upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the documents or other written evidence. Enforcement of such subpoenas may be sought in the same manner as is provided in subsection (e) of this Code section for subpoenas to compel attendance of witnesses.
Within a reasonable time after the hearing provided for by this Code section, the board shall enter an order (1) rescinding parole or conditional release and returning the parolee or conditional releasee to serve the sentence theretofore imposed upon him, with benefit of computing the time so served on parole or conditional release as a part of his sentence; or (2) reinstating the parole or conditional release or shall enter such other order as it may deem proper. The board shall issue a written statement which shall indicate its reasons for revoking or not reinstating parole or conditional release or for taking such other action as it deems appropriate and shall also indicate the evidence relied upon in determining the facts which form the basis for these reasons. The parolee or conditional releasee who is the subject of the board's decision shall be furnished with a copy of this written statement.

(Ga. L. 1943, p. 185, § 17; Ga. L. 1955, p. 351, § 1; Ga. L. 1964, p. 497, § 1; Ga. L. 1965, p. 478, § 2; Ga. L. 1975, p. 786, § 3; Ga. L. 1981, p. 812, § 2; Ga. L. 1992, p. 3221, § 11.)

JUDICIAL DECISIONS

General Consideration

Applicability of double jeopardy clause.

- Because parole and probation revocation proceedings are not designed to punish a criminal defendant for violation of a criminal law, and because the purpose of parole and probation revocation proceedings is to determine whether a parolee or probationer has violated the conditions of the parolee's parole or probation, such proceedings are fundamentally distinguishable from juvenile proceedings, the latter being indistinguishable from a criminal prosecution, and, thus, the double jeopardy clause of U.S. Const., amend. 5 does not apply to parole and probation revocation proceedings. United States v. Whitney, 649 F.2d 296 (5th Cir. 1981).

Cited in Woodall v. State, 122 Ga. App. 653, 178 S.E.2d 337 (1970); Brown v. Peacock, 235 Ga. 834, 221 S.E.2d 594 (1976); United States v. Cornog, 945 F.2d 1504 (11th Cir. 1991); Green v. State, 283 Ga. App. 541, 642 S.E.2d 167 (2007).

Requirement of Due Process for Parole Revocation

Loss of liberty involved in a parole revocation is a serious deprivation requiring that a parolee be afforded due process. Mingo v. State, 155 Ga. App. 284, 270 S.E.2d 700 (1980).

Revocation after forfeiture of bond in traffic violation case.

- Failure to hold hearing prior to revocation of parole after forfeiture of bond arising from traffic violation was denial of due process of law. Admission of guilt to traffic offense under jurisdiction of traffic violations bureau, whether by forfeiture of bond or by plea, is not exception to statutory mandate to provide speedy hearing before rescission of parole. Duncan v. Ricketts, 232 Ga. 89, 205 S.E.2d 274 (1974).

Delay of revocation hearing until expiration of sentence imposed by another state.

- This section requires a parole revocation hearing, but when a person has committed a crime in another state, has been convicted, and is incarcerated in that state, it is not unconstitutional to delay the parole revocation hearing until expiration of that later sentence. Moultrie v. Georgia, 464 F.2d 551 (5th Cir. 1972).

State supreme court vacated the trial court's judgment denying an inmate's petition for a writ of habeas corpus challenging procedures used by the Georgia State Board of Pardons and Paroles when the Board revoked the inmate's parole because the recommendation submitted by the Board member who heard the allegations was not a part of the record and there was no evidence in the record which allowed the court to determine the basis of absent Board members' decisions to accept that recommendation and what procedures were followed in revoking the inmate's parole. Roberts v. Scroggy, 278 Ga. 25, 597 S.E.2d 385 (2004).

Prior Hearing Not Mandatory

"Crimes" limited to felonies or misdemeanors.

- This section limits "crimes" authorizing parole revocation without prior hearing to misdemeanors or felonies. Duncan v. Ricketts, 232 Ga. 89, 205 S.E.2d 274 (1974).

Necessity for Issuing Revocation Order

Computation of time served by parolee for later conviction.

- When a prisoner serving sentence on parole under order of the board is convicted and sentenced to serve time for another criminal offense, the time the prisoner serves on a latter sentence will be computed as time served on the sentence for which the prisoner was paroled, until such time as the board by order revokes the prisoner's parole. Even though warrant is issued for arrest of parolee as parole violator and the parolee arrested, service of the parolee's sentence continues until the board issues an order of revocation and for the parolee's return to prison. Balkcom v. Jackson, 219 Ga. 59, 131 S.E.2d 551 (1963).

Basis for Parole Revocation

When defendant and trial judge agreed on restitution as condition of the defendant's probated sentence and when 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 a basis of the defendant's parole revocation. Fong v. State, 149 Ga. App. 456, 254 S.E.2d 460 (1979).

OPINIONS OF THE ATTORNEY GENERAL

When hearing required.

- Parole, if properly granted in accordance with law and rules and regulations of the board, may be revoked only after a hearing before the board on a specific charge of violating the terms and conditions of parole except in the event the parolee becomes convicted of a crime or enters a plea of guilty to a crime in which case this section provides for revocation by the board without a hearing. However, there need not always be a parole violation before a parole may be revoked. For instance, the authority of a parole board to revoke a parole on the ground that the prisoner had not earned it and was mistakenly granted has been upheld. 1967 Op. Att'y Gen. No. 67-51.

Notices of preliminary and final hearings to consider parole revocation should include a statement that an indigent parolee may request appointed counsel. 1974 Op. Att'y Gen. No. 74-119.

Rearrest of prisoner to serve remainder of original paroled sentence.

- Prisoner paroled after serving eight months of a one to three year sentence, and a month later convicted on a new charge, sentenced to six months, and the prisoner's parole revoked, who was released at the end of the new sentence, may not be rearrested seven years later to serve the balance of the prisoner's original sentence. 1945-47 Op. Att'y Gen. p. 452.

Court of record.

- General Assembly does not have to declare that a particular court is of record for that court to be of record; rather, the legislative declaration may be helpful in ascertaining whether a particular court is of record. If a particular court keeps records as appear reasonably calculated to preserve as perpetual memorial acts and judicial proceedings of such court, the court is "court of record." 1973 Op. Att'y Gen. No. 73-17.

RESEARCH REFERENCES

Am. Jur. 2d.

- 59 Am. Jur. 2d, Pardon and Parole, §§ 99, 100, 104-111.

C.J.S.

- 67A C.J.S., Pardon and Parole, §§ 74-76, 79, 82-90, 92, 93-96.

ALR.

- Parole as suspending running of sentence, 28 A.L.R. 947.

Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.

Propriety of increased sentence following revocation of probation, 23 A.L.R.4th 883.

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