Wilson v. Windsor

Thompson, Justice.

Robert Alton Windsor, Jr., pled guilty to the misdemeanor offenses of habitual violator (Count 1), driving under the influence (Count 2), possession of marijuana (Count 3), and operating a vehicle without proof of insurance (Count 4). He was sentenced to 12 months probation on each of the first three counts (to be served consecutively), and a $25 fine on the last count. Thereafter, Windsor’s probation was revoked three times for repeated failures to report to probation officers, to pay fines, to perform community service, and to obtain substance abuse counseling. Each time the court revoked probation, it increased Windsor’s sentence; ultimately, it sentenced Windsor to serve between 240 and 300 days in a probation detention center.

Windsor filed a petition for habeas corpus relief, asserting his sentence was “illegal.” In this regard, Windsor claimed he could not be sentenced to serve time in a probation detention center because his conviction stemmed from a misdemeanor. The habeas court agreed and ordered Windsor’s release from the probation detention center “and all other confinement” instanter. This appeal followed.

1. OCGA § 42-8-35.4 sets out the circumstances under which a defendant can be confined in a probation detention center. In pertinent part, this Code section reads as follows:

(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 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 that probation, a program of confinement in a probation detention center. Probationers so sentenced will be required to serve a period of confinement as specified in the court order, which confinement period shall be computed from the date of initial confinement in the probation detention center.

Under this Code section, our courts can order the confinement of a defendant or a probation violator in a probation detention center, but only if (1) he was convicted of a felony and sentenced to a period of not less than one year on probation, or (2) he was put on probation previously for a forcible misdemeanor, or misdemeanor of a high and aggravated nature, and upon the violation of probation was subsequently sentenced for a period of not less than one year. See Anderson v. State, 261 Ga. App. 716, 717 (583 SE2d 549) (2003); Brady v. State, 246 Ga. App. 412, 413 (541 SE2d 396) (2000). See also Yates v. State, 263 Ga. App. 29, 30 (2) (587 SE2d 180) (2003). If a probation violator does not meet the criteria for confinement in a probation detention center, or other probation alternatives,¹ a court can revoke the balance of probation or confine the violator for not more than two years. OCGA § 42-8-34.1 (c). Inasmuch as Windsor did not meet the criteria for confinement in a probation detention center, his confinement in such a facility was unauthorized.

OCGA § 17-10-3 (a) (2)² does not give our courts authority to confine a misdemeanant in a probation detention center. As the Court of Appeals observed in Anderson v. State, supra:

“If the plain language of the statute is susceptible of only one meaning, courts must follow that meaning unless to do so would produce contradiction or absurdity.” Sizemore v. State, 262 Ga. 214, 216 (416 SE2d 500) (1992). OCGA § 17-10-3 expressly mentions OCGA § 42-8-35.4. Under its plain language, any misdemeanor sentence imposing a term in a probation detention center must be governed by OCGA § 42-8-35.4. The legislature could have provided simply that all misdemeanors may be punished by confinement in such centers. Instead, it chose to word the amendment so that it provides that misdemeanors may be punished by confinement in state probation detention centers “pursuant to Code Sections 42-8-35.4 and 42-8-35.5.” We cannot render that language meaningless.

Id. at 719. Similarly, a court cannot rely upon OCGA§ 17-10-1 (a) (3) (A)³ to confine any probation violator in a probation detention center. This subsection allows a court to assign certain types of probation violators to various kinds of confinement facilities. But it must be read in pari materia with OCGA § 42-8-35.4. See Ryan v. Commrs. of Chatham County, 203 Ga. 730 (48 SE2d 86) (1948) (statutes relating to same subject matter are construed together and harmonized whenever possible). Reading these Code sections together, we find that a court can confine a probation violator in a probation detention center, but not if his probation is revoked for any of the reasons enumerated in OCGA § 17-10-1 (a) (3) (A), and only if he was put on probation previously for a forcible misdemeanor or a misdemeanor of a high and aggravated nature. OCGA § 42-8-35.4. If, as the State contends, our construction of these statutes removes a useful tool from a sentencing court’s toolbox, it should seek redress in the legislature.

2. Upon remand, the habeas court shall order the imposition of a new sentence. See DeFrancis v. Thompson, 239 Ga. 785, 786 (239 SE2d 14) (1977); Anderson v. State, supra.

Judgment affirmed and case remanded with direction.

All the Justices concur; except Corley, Hines and Melton, JJ., who dissent.

1 These include community service, diversion centers, special alternative incarceration, “or any other alternative to confinement deemed appropriate by the court or as provided by the state or county.” OCGA § 42-8-34.1 (c).

2 This subsection reads:

(a) Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows: . . .

(2) By confinement under the jurisdiction of the Board of Corrections in a state probation detention center or diversion center pursuant to Code Sections 42-8-35.4 and 42-8-35.5 for a determinate term of months which shall not exceed a total term of 12 months.

3 This subsection reads:

Any part of a sentence of probation revoked for a violation other than a subsequent commission of any felony, a violation of a special condition, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim which in the opinion of the trial court constitutes a danger to the community or a serious infraction occurring while the defendant is assigned to an alternative probation confinement facility shall be served 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 correctional alternatives available to the court or provided by the Department of Corrections.