Between 1990 and 2011, the North Georgia prison population doubled. Prison capacity expanded over this same period, but nowhere near that pace. The large number of inmates to house, feed, and provide medical care for means that sheriffs are anxious to reduce jail populations.
Sometimes, county sheriffs offer three days’ credit for every one day served. If the defendant has no family, professional, or other obligations, and the jail sentence is relative short, sitting out the time could be an attractive option. That alternative may be better than an extended period of court supervision.
Moreover, some straight-time alternatives may be available in Cobb County. Weekends are a good example. In a weekend plan, the defendant checks into jail at any time before midnight on Friday night and checks out any time after midnight on Sunday night. Although the defendant only serves a little more than a day, the defendant receives three days’ credit. If the planets align and weekends are available during a three-for-one period, the defendant’s time served may be very brief indeed.
But for the most part almost all Cobb County defendants opt for probation. Prosecutors almost always offer probation, even in serious cases like drug trafficking and murder. What happens after the judge’s gavel falls and your probation sentence begins?
Conditions of Probation
Every defendant must attend some form of orientation. Some criminal courts have in-house probation officers; other defendants must go to mass orientations. A significant number of people abscond. They attend orientation and never do anything else. Sooner or later, the law always catches up with these individuals, as outlined below.
Both straight probation and deferred adjudication probation have both generic conditions and offense-specific conditions. The most common probation violation generic conditions are:
- Failing to Report: Most probationers are required to report to their probation officers in person at least once a month. Bimonthly reporting requirements are not uncommon either. Some officers overlook isolated missed appointments, especially if the defendant has an otherwise good probation record. But that’s certainly not true in all cases.
- Committing a New Offense: Technically, a subsequent arrest is sufficient to trigger a motion to revoke probation. Significantly, the offense must be against the state of Georgia. Parking tickets and other municipal violations do not count.
- Failing to Pay Money: This one is a bit tricky. Almost all probationers must pay fines, court costs, and supervision fees. Failure to do so violates the terms of probation. But U.S. law prohibits debtors’ prisons. So, to put a defendant in jail, the prosecutor typically must allege something in addition to the failure to pay money.
Other generic conditions include avoiding disreputable people and working a regular job. These conditions are rather hard to enforce, so most probation violation motions don’t cite them.
There are a number of offense-specific conditions as well, and the DUI ignition interlock device is a good example. The defendant must have one of these gadgets installed and monitored. The defendant must pay for these things, as well as for periodic calibrations.
The IID is basically a portable Breathalyzer that’s attached to the vehicle’s ignition. If the driver has a BAC above .04, or any other pre-set level, the vehicle will not start. Moreover, the defendant must submit to “rolling samples” while the vehicle is in motion. If there are too many rolling refusals, or a rolling failure, the vehicle will not re-start.
Once upon a time, anyone could blow into the IID. But today’s gadgets usually have digital cameras. So much for the good old days.
If the defendant violates a condition of probation, the probation officer generally forwards the matter to the district attorney. The prosecutor then reviews the situation and files a formal motion to revoke probation.
Once a judge issues a warrant, the defendant is subject to arrest at any time. That could be the next time the defendant reports to the probation officer, or it could be the next time the defendant is pulled over for a traffic stop.
There may be a procedural defense here. Georgia courts sometimes require the prosecutor to show due diligence in serving the arrest warrant. Typically, there is no evidence of such diligence, because the warrant usually sits in a computer until the defendant somehow runs afoul of the law.
Prosecutors need only prove probation violations by a preponderance of the evidence (more likely than not). That’s troublesome if the prosecutor tries to violate a defendant for something, like drug possession, that would otherwise have a much higher burden of proof.
If the judge finds the allegations are “true,” or if the defendant voluntarily pleads true, there are several options. In deferred adjudication cases, many judges set aside the deferral, enter a finding of guilt, and continue the defendant on probation. Sometimes, the judge orders the defendant to serve a few days as a condition of reinstatement. It’s rare for judges to commit defendants to the full period of incarceration. But it does happen, especially in absconding cases.
Early Discharge from Probation
In Georgia, Marietta defendants need not serve the entire term. That’s good news, especially for people convicted of felonies and who face many years of court supervision. In 2017, lawmakers made it a bit easier to obtain early discharge. The requirements are:
- Conviction for an OCGA 42-8-21 offense (mostly non-violent felonies),
- No prior felony convictions,
- No “split sentence” (e.g. five years in prison followed by five years of probation),
- Squeaky-clean probation record, and
- Restitution (if any) paid in full.
Defendants who qualify are eligible for early discharge after three years (two years in some cases). The probation’s length is immaterial. If the court placed the defendant on probation for 100 years, a qualified defendant could still receive early discharge after two or three years. It may also be possible to set aside the guilty verdict.
As a practical matter, the probation officer can make or break a motion for early discharge. If the officer endorses the motion, the judge almost always grants it. If the officer opposes it or says nothing, the judge almost always denies the motion.
Work with an Experienced Lawyer
Your legal choices do not end after the judge sentences you to probation. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm LLC. We routinely handle matters in Cobb County and nearby jurisdictions.