Pitts v. State , 206 Ga. App. 635 ( 1992 )

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 and 2 of the opinion and in the reversal of the sentence as imposing a statutorily unauthorized punishment. I respectfully disagree with the reason for the holding, that is, “the absence of express statutory authority for a trial court to impose any period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation. . . .”

The court sentenced Pitts to serve 10 years as to Count 1, 5 years consecutive as to Count 2, and 5 years consecutive thereafter as to Count 3, “in the State Penal System or such other institution as the proper authority of said system may direct to be computed as provided by law.” The whole sentence was probated upon a number of conditions, including: “Spend the next 24 months at Colquitt County Correctional Institution as a special condition of probation imposed as to Count 1,” and immediately thereafter, spend another 24 months at the same institution as to Count 2. Later, a five-year sentence of probation was added for the possession count, which was “to run concurrently with the sentence of probation in Count 1.” In sum, defendant was to serve twenty years, the first four of which he was to be incarcerated in a county facility and the balance of which he was to be at liberty, under the remaining conditions of probation. Thus, the first four years were not, in effect, on probation. They simply constituted imprisonment in the county’s custody rather than in the State’s custody. This avoided the term of years authorized by law (OCGA §§ 16-13-30 (c), (d); 16-11-131 (b)), which would have placed defendant into the State’s custody.

OCGA § 17-10-1 (a) (1) grants to the sentencing judge “power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, subject to the conditions set out in this subsection [(a)].” Condition (3) (A) clearly contemplates that the broad power and authority of the sentencing judge to impose the privilege of probation,¹ in lieu of imprisonment for a term of months (for misdemeanors) or a term of years in the State’s custody (for felonies), includes certain types of confinement. It speaks of probationers who are “assigned to an alternative probation confinement facility”; it requires probationers who are revoked for certain reasons to serve not in the State prison system but rather in “a probation detention center, probation boot camp, diversion center, weekend lock up, or confinement in a local jail or detention facility, or other community corrections alternatives available to the court or provided by the Department of Corrections.”

A similar provision is found in OCGA § 42-8-34.1 (b). It requires the court in probation revocations (other than those revoked because of a new felony offense) to “consider the use of alternatives [to a term of months or years] to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county.” See also OCGA § 42-8-35.1, providing for special alternative incarceration as a condition of probation.

OCGA § 42-8-35 complements OCGA § 17-10-1 by specifying that “[t]he court shall determine the terms and conditions of probation. . . .” It lists ten conditions, which are non-exclusive. Parkerson v. State, 156 Ga. App. 440 (274 SE2d 799) (1980). Included is item (6), “Remain within a specified location,” which obviously contemplates a restriction on liberty and on freedom of movement. Confinement in a diversion center is not regarded as a term of imprisonment. Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988). “Reasonable conditions,” Grant v. State, 176 Ga. App. 460 (1) (336 SE2d 354) (1985), quoting from State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974), thus can include reasonable types and periods of confinement short of total incarceration, i.e., a term of months for misdemeanors or a term of years for felonies. As measured in Inman v. State, 124 Ga. App. 190, 194 (183 SE2d 413) (1971), “[conditions . . . should be . . . not unduly restrictive of [the probationer’s] liberty. . . .”² This condition, like the others, gives the defendant the choice of limited freedom or no freedom at all. The latter is the case when a term is imposed, with no choice dependent on the prisoner’s behavior.

The sentence imposed on Pitts amounted to the latter, two terms of total incarceration.

1 2 See Cross v. Huff, 208 Ga. 392, 396 (67 SE2d 124) (1951).

2 The court is quoting from American Bar Association tentative draft of “Standards Relating to Probation,” Institute of Judicial Administration (1970), Section 3.2 (b). The wording was retained in the Approved Draft, 1970.