07 LC 28
3212
House
Bill 64
By:
Representative Powell of the
29th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 42 of the Official Code of Georgia Annotated, relating to penal
institutions, so as to create the Division of Probation/Parole Community Based
Supervision; to provide for the responsibilities of the division with respect to
supervision of probationers and parolees; to transfer responsibility of certain
functions of probation and parole supervision to the division; to provide for
the selection, service, and powers and duties of the director and employees of
the division; to provide for rules and regulations and forms; to provide for
administration; to authorize appropriation of funds; to provide for transfer of
prior appropriations; to provide for transfer of personnel, equipment, and
facilities; to amend Title 16 of the Official Code of Georgia Annotated,
relating to crimes and offenses, so as to correct cross-references; to amend
Title 17 of the Official Code of Georgia Annotated, relating to criminal
procedure, so as to change provisions relating to imposition and service of
split sentences; to provide for sentencing orders and their terms and effect; to
provide that where a person is sentenced to a term of imprisonment followed by a
period of probation and the person is paroled or released prior to service of
the full period of imprisonment, the person shall be subject to an increased
period of probation and probation supervision but shall not be subject to
supervision by the State Board of Pardons and Paroles; to make corresponding
changes with respect to the jurisdiction and authority of the State Board of
Pardons and Paroles; to amend Titles 19, 40, and 45 of the Official Code of
Georgia Annotated, relating to domestic relations, motor vehicles and traffic,
and public officers and employees, respectively, so as to provide for certain
changes in the administrative organization of the Department of Corrections and
the State Board of Pardons and Paroles and to provide for conforming amendments;
to provide for related matters; to provide for an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
42 of the Official Code of Georgia Annotated, relating to penal institutions, is
amended by adding at its end a new Chapter 14 to read as follows:
"CHAPTER
14
42-14-1.
As
used in this chapter, the term:
(1)
'Board' means the State Board of Pardons and Paroles.
(2)
'Corrections' means the Department of Corrections.
(3)
'Division' means the Division of Probation/Parole Community Based
Supervision.
(4)
'Officer' means a person who acts as a supervisor for a probationer or
parolee.
(5)
'Split sentence' means any felony sentence that includes a term of imprisonment
followed by a term of probation.
42-14-2.
There
is created the Division of Probation/Parole Community Based Supervision which
shall be a division of corrections. The division shall be attached to
corrections for administrative purposes only, as provided in Code Section
50-4-3. The division shall be primarily responsible for:
(1)
Supervision of all defendants who receive a felony sentence of straight
probation;
(2)
Supervision of all defendants who receive a felony sentence that includes
confinement in a probation detention or probation diversion center;
(3)
Supervision of all defendants who receive a split sentence;
(4)
Supervision of all defendants placed on parole or other conditional release from
imprisonment by the board;
(5)
Supervision of juvenile offenders pursuant to Code Section 42-8-30;
(6)
Administration of the laws and regulations relating to probation and parole
supervision as provided for in Chapters 8 and 9 of this title; and
(7)
Enforcement of laws and regulations relating to probation and parole supervision
as provided for in Chapters 8 and 9 of this title.
42-14-3.
(a)
There shall be a director of the division who shall be both appointed by and
serve at the pleasure of the commissioner of corrections. Subject to the
policies, rules, and regulations established by the board and corrections, the
director shall supervise, direct, account for, organize, plan, administer, and
execute the functions of the division.
(b)
The director shall receive an annual salary to be set by the Governor which
shall be his or her total compensation for services as director. The director
shall be reimbursed for all actual and necessary expenses incurred by him or her
in carrying out his or her official duties.
(c)
The duties of the division shall be performed by that division and not by any
other agency of state government, and the division shall not perform the duties
of any other agency of state government. The position of director of the
division shall be a separate and distinct position from any other position in
state government. The duties of the director shall be performed by the director
and not by any other officer of state government, and the director shall not
perform the duties of any other officer of state government.
42-14-4.
(a)
The director shall establish units within the division as he or she deems proper
for its administration and shall designate persons to be assistant directors of
each unit and to exercise authority as he or she may delegate to them in
writing.
(b)
The director shall have the authority to employ as many persons as he or she
deems necessary for the administration of the division and for the discharge of
the duties of his or her office. The director shall issue all necessary
directions, instructions, orders, and rules applicable to employees of the
division. The director shall have authority, as the director deems proper, to
employ, assign, compensate, and discharge employees of the division within the
limitations of the division´s appropriation and the restrictions set forth
by law.
(c)
All employees of the division shall be compensated upon a fixed salary basis,
and no person shall be compensated for services to the division on a commission
or contingent fee basis.
(d)
Neither the director nor any officer or employee of the division shall be given
or receive any fee, compensation, loan, gift, or other thing of value in
addition to the compensation and expense allowance provided by law for any
service or pretended service either rendered or to be rendered as director or as
an officer or employee of the division.
42-14-5.
(a)
The director shall have the power to make and publish reasonable rules and
regulations not inconsistent with this title or other laws or with the
Constitution of this state or of the United States for the administration of
this chapter or any law which it is his or her duty to administer.
(b)
The director may prescribe forms as he or she deems necessary for the
administration and enforcement of this chapter and Chapters 8 and 9 of this
title or any law which it is his or her duty to administer.
(c)
The following rules and regulations shall remain of full force and effect as
rules and regulations of the division until amended, repealed, or superseded by
rules or regulations adopted by the director of the division:
(1)
All rules and regulations previously adopted by the Advisory Council for
Probation which relate to functions transferred under this chapter from the
state-wide probation system to the division;
(2)
All rules and regulations previously adopted by corrections which relate to
functions transferred under this chapter from corrections to the division;
and
(3)
All rules and regulations previously adopted by the board which relate to
functions transferred under this chapter from the board to the
division.
42-14-6.
(a)
Appropriations to corrections and the board for functions transferred to the
division pursuant to this chapter may be transferred to the division as provided
for in Code Section 45-12-90. Personnel, equipment, and facilities
previously employed by corrections and the board for transferred functions shall
likewise be transferred to the division. Any disagreement as to any of the
transfers shall be resolved by the Governor.
(b)
The enactment of this chapter and the Act by which it is enacted shall not
affect or abate the status of a probation revocation or parole revocation which
occurred prior to July 1, 2007."
SECTION
2.
Said
title is further amended by revising Code Section 42-1-10, relating to
preliminary urine screen drug tests, as follows:
"42-1-10.
(a)
Any
probation/parole
supervisor, probation officer,
parole
officer, or other official or employee of
the Department of Corrections
or the
Division of Probation/Parole Community Based
Supervision who supervises any person
covered under the provisions of paragraphs (1) through (7) of this subsection
shall be exempt from the provisions of Chapter 22 of Title 31 for the
limited purposes of administering a preliminary urine screen drug test to any
person who is:
(1)
Incarcerated;
(2)
Released as a condition of probation for a felony or misdemeanor;
(3)
Released as a condition of conditional release;
(4)
Released as a condition of parole;
(5)
Released as a condition of provisional release;
(6)
Released as a condition of pretrial release; or
(7)
Released as a condition of control release.
(b)
The Department of
Corrections,
the Division of Probation/Parole Community Based
Supervision, and the State Board of
Pardons and Paroles shall develop a procedure for the performance of preliminary
urine screen drug tests in accordance with the manufacturer´s standards for
certification.
Probation/parole
supervisors, probation officers,
parole
officers, or other officials or employees
of the Department of Corrections
or the
Division of Probation/Parole Community Based
Supervision who are supervisors of any
person covered under paragraphs (1) through (7) of subsection (a) of this Code
section shall be authorized to perform preliminary urine screen drug tests in
accordance with such procedure. Such procedure shall include instructions as to
a confirmatory test by a licensed clinical laboratory where
necessary."
SECTION
3.
Said
title is further amended by revising Code Section 42-2-4, relating to the
creation of the Department of Corrections, as follows:
"42-2-4.
There
is created the Department of Corrections.
Within the
department shall be the Division of Probation/Parole Community Based
Supervision."
SECTION
4.
Said
title is further amended by revising Code Section 42-8-2, relating to the
Advisory Council for Probation´s duties and responsibilities, as
follows:
"42-8-2.
(a)
As used in this Code section, the term:
(1)
'Board' means the Board of Corrections.
(2)
'Corrections' means the Department of Corrections.
(3)
'Division' means the Division of Probation/Parole Community Based
Supervision.
(b)
The Advisory Council for Probation shall meet, consult, and advise with the
Board
of
Corrections
board, the
division, and
the
Department of Corrections
corrections
on questions and matters of mutual concern and interest relative to policy,
personnel, and budget which pertain to probationary activities, powers, duties,
and responsibilities of the
board,
and
the
department
division, and
corrections. The advisory council shall
institute such studies and surveys and shall make such recommendations to the
board,
corrections, and
department
the
division as the council deems wise and
necessary and which, in the opinion of the council, will improve the
effectiveness and efficiency of probation services rendered throughout the
state. No change in existing policy of the
board,
corrections, or the
department
division
relative to probation, if the magnitude of the change will result in a
significant impact upon state-wide probationary services, or any such new
policy, shall be instituted by the
board,
corrections, or
department
the
division without opportunity being
afforded to the advisory council to advise and consult with the
board,
corrections, or
department
the
division on the proposed changes.
However, the recommendations of the advisory council shall be advisory only and
shall not bind the
board,
corrections, or
department
the
division. The board,
corrections,
the
department
division,
and the council shall meet periodically throughout each year for the purpose of
improving the administration, efficiency, and effectiveness of probation
services."
SECTION
5.
Said
title is further amended by revising Code Section 42-8-21, relating to
definitions in the "State-wide Probation Act," as follows:
"42-8-21.
As
used in this article, the term:
(1)
'Board' means the Board of Corrections.
(2)
'Commissioner' means the commissioner of corrections.
(3)
'Corrections'
means the Department of Corrections.
(4)
'Division'
'Department'
means the
Department
of Corrections
Division of
Probation/Parole Community Based
Supervision.
(5)
'Split sentence' means any felony sentence that includes a term of imprisonment
followed by a term of
probation."
SECTION
6.
Said
title is further amended by revising Code Section 42-8-22, relating to creation
and administration of the state-wide probation system, as follows:
"42-8-22.
There
is created a state-wide probation system for felony offenders to be administered
by the
Department
of Corrections
Division of
Probation/Parole Community Based
Supervision. The probation system shall
not be administered as part of the duties and activities of the State Board of
Pardons and
Paroles; but,
with respect to a split sentence imposed on or after July 1, 2007, the division
shall have jurisdiction over any increased period of probation resulting from a
release of the defendant by the State Board of Pardons and Paroles as provided
for in Code Section 17-10-1.3. Separate
files and records shall be kept with relation to the system."
SECTION
7.
Said
title is further amended by revising Code Section 42-8-23, relating to the
administration of supervision of felony probationers by the Department of
Corrections, as follows:
"42-8-23.
The
department
division
shall administer the supervision of felony probationers. Nothing in this Code
section shall alter the relationship between judges and
probation/parole
supervisors prescribed in this article."
SECTION
8.
Said
title is further amended by revising Code Section 42-8-24, relating to the
general duties of the department and rules and regulations, as
follows:
"42-8-24.
It
shall be the duty of the
department
division
to supervise and direct the work of the
probation/parole
supervisors provided for in Code Section 42-8-25 and to keep accurate files and
records on all probation
cases, split
sentence cases, parole cases, persons released pursuant to Code Section
17-10-1, and persons
on
probation
under
supervision. It shall be the duty of the
board to promulgate rules and regulations necessary to effectuate the purposes
of this chapter."
SECTION
9.
Said
title is further amended by revising Code Section 42-8-25, relating to the
employment of probation supervisors and assignment to circuits, as
follows:
"42-8-25.
Corrections
The
department shall employ
probation/parole
supervisors. The
department
division
may assign one supervisor to each judicial circuit in this state or, for
purposes of assignment, may consolidate two or more judicial circuits and assign
one supervisor thereto. In the event the
department
division
determines that more than one supervisor is needed for a particular circuit, an
additional supervisor or additional supervisors may be assigned to the circuit.
The
department
division
is authorized to direct any
probation/parole
supervisor to assist any other
probation/parole
supervisor wherever assigned. In the event that more than one supervisor is
assigned to the same office or to the same division within a particular judicial
circuit, the
department
division
shall designate one of the supervisors to be in charge."
SECTION
10.
Said
title is further amended by revising Code Section 42-8-26, relating to the
qualifications of probation supervisors, compensation, expenses, conflicts of
interest, and bonds, as follows:
"42-8-26.
(a)
In order for a person to hold the office of
probation/parole
supervisor, he
or
she must be at least 21 years of age at
the time of appointment and must have completed a standard two-year college
course, provided that any person who is employed as a probation supervisor on or
before July 1, 1972, shall not be required to meet the educational requirements
specified in this Code section, nor shall he
or
she be prejudiced in any way for not
possessing the requirements. The qualifications provided in this Code section
are the minimum
qualifications,
and the
department
corrections
is authorized to prescribe such additional and higher educational qualifications
from time to time as it deems
desirable,
but not to exceed a four-year standard college course.
(b)
The compensation of the
probation/parole
supervisors shall be set by the State Personnel Board and the State Merit System
of Personnel Administration.
Probation/parole
supervisors shall also be allowed travel and other expenses as are other state
employees.
(c)(1)
No supervisor shall engage in any other employment, business, or activities
which interfere or conflict with his or her duties and responsibilities as
probation/parole
supervisor.
(2)
No supervisor shall own, operate, have any financial interest in, be an
instructor at, or be employed by any private entity which provides drug or
alcohol education services or offers a DUI Alcohol or Drug Use Risk Reduction
Program certified by the Department of Driver Services.
(3)
No supervisor shall specify, directly or indirectly, a particular DUI Alcohol or
Drug Use Risk Reduction Program which a probationer may or shall attend. This
paragraph shall not prohibit any supervisor from furnishing any probationer,
upon request, the names of certified DUI Alcohol or Drug Use Risk Reduction
Programs. Any supervisor violating this paragraph shall be guilty of a
misdemeanor.
(d)
Each
probation/parole
supervisor shall give bond in such amount as may be fixed by
the
department
corrections
payable to
the
department
corrections
for the use of the person or persons damaged by his
or
her misfeasance or malfeasance and
conditioned on the faithful performance of his
or
her duties. The cost of the bond shall be
paid by the
department
corrections;
provided, however, that the bond may be procured, either by
the
department
corrections
or by the Department of Administrative Services, under a master policy or on a
group blanket coverage basis, where only the number of positions in each
judicial circuit and the amount of coverage for each position are listed in a
schedule attached to the bond; and in such case each individual shall be fully
bonded and bound as principal, together with the surety, by virtue of his
or
her holding the position or performing the
duties of
probation/parole
supervisor in the circuit or circuits, and his
or
her individual signature shall not be
necessary for such bond to be valid in accordance with all the laws of this
state. The bond or bonds shall be made payable to
the
department
corrections."
SECTION
11.
Said
title is further amended by revising Code Section 42-8-27, relating to the
duties of probation supervisors, as follows:
"42-8-27.
The
probation/parole
supervisor shall supervise and counsel probationers in the judicial circuit to
which he or
she is assigned. Each supervisor shall
perform the duties prescribed in this chapter and
such
other
duties as are prescribed by the
department
division
and shall keep
such
records and files and make
such
any
reports as are required of him
or
her."
SECTION
12.
Said
title is further amended by revising Code Section 42-8-28, relating to the
assignment of probation supervisors among the judicial circuits, as
follows:
"42-8-28.
Probation/parole
supervisors shall be assigned among the respective judicial circuits based
generally on the relative number of persons on probation
and
parole in each circuit."
SECTION
13.
Said
title is further amended by revising Code Section 42-8-29, relating to
presentence investigations, supervision of probationers, and record keeping, as
follows:
"42-8-29.
(a)
It shall be the duty of the
probation/parole
supervisor to investigate all cases referred to him
or
her by the court and to make
his
findings and report thereon in writing to the court with
his
a
recommendation. The superior court may require, before imposition of sentence,
a presentence investigation and written report in each felony case in which the
defendant has entered a plea of guilty or nolo contendere or has been convicted.
(b)
The
probation/parole
supervisor shall cause to be delivered to each person placed on probation under
his or
her supervision a certified copy of the
terms of probation and any change or modification thereof and shall cause the
person to be instructed regarding the same.
He
The
probation/parole supervisor shall keep
informed concerning the conduct, habits, associates, employment, recreation, and
whereabouts of the probationer by visits, by requiring reports, or in other
ways.
He
The
probation/parole supervisor shall make
such
reports in writing or otherwise as the court may require.
He
The
probation/parole supervisor shall use all
practicable and proper methods to aid and encourage persons on probation and to
bring about improvements in their conduct and condition.
(c)
The probation/parole supervisor
He
shall keep records on each probationer
and
parolee referred to
him
the
probation/parole
supervisor."
SECTION
14.
Said
title is further amended by revising Code Section 42-8-29.1, relating to
disposition of a probation supervisor´s documents upon committing a
convicted person to an institution, as follows:
"42-8-29.1.
(a)
When a convicted person is committed to an institution under the jurisdiction of
the
department
corrections,
any presentence or post-sentence investigation or psychological evaluation
compiled by a
probation/parole
supervisor or other probation official shall be forwarded to
any
the
division or
any
office designated by the commissioner. Accompanying this document or evaluation
will be the case history form and the criminal history sheets from the Federal
Bureau of Investigation or the Georgia Crime Information Center, if available,
unless any
such
of
this information has previously been sent
to the
department
corrections
pursuant to Code Section 42-5-50. A copy of these same documents shall be made
available for the State Board of Pardons and Paroles. A copy of one or more of
these documents, based on need, may be forwarded to another institution to which
the defendant may be committed.
(b)
The prison or institution receiving these documents shall maintain the
confidentiality of the documents and the information contained therein and shall
not send them or release them or reveal them to any other person, institution,
or agency without the express consent of the
probation
unit which originated or accumulated the documents."
SECTION
15.
Said
title is further amended by revising Code Section 42-8-30, relating to
supervision of juvenile offenders by probation supervisors, as
follows:
"42-8-30.
In
the counties where no juvenile probation system exists, juvenile offenders, upon
direction of the court, shall be supervised by
probation/parole
supervisors. Other than in this respect, nothing in this article shall be
construed to change or modify any law relative to probation as administered by
any juvenile court in this state."
SECTION
16.
Said
title is further amended by revising Code Section 42-8-31, relating to
collection and disbursement of funds by probation supervisors, record keeping,
and bank accounts, as follows:
"42-8-31.
No
probation/parole
supervisor shall collect or disburse any funds whatsoever, except by written
order of the court; and it shall be the duty of the supervisor to transmit a
copy of the order to the
department
division
not later than 15 days after it has been issued by the court. Every supervisor
who collects or disburses any funds whatsoever shall faithfully keep the records
of accounts as are required by the
department
division,
which records shall be subject to inspection by the
department
division
at any time. In every instance where a bank account is required, it shall be
kept in the name of the 'State Probation Office.'"
SECTION
17.
Said
title is further amended by revising Code Section 42-8-32, relating to funds
which may be collected by probation supervisors, as follows:
"42-8-32.
No
probation/parole
supervisor shall be directed to collect any funds other than funds directed to
be paid as the result of a criminal proceeding."
SECTION
18.
Said
title is further amended by revising Code Section 42-8-33, relating to auditing
probation supervisors´ accounts and restrictions on refunding overpayments
of fines, restitution, or moneys owed, as follows:
"42-8-33.
(a)
The
department
division
shall make periodic audits of each
probation/parole
supervisor who, by virtue of
his
the
supervisor´s duties, has any moneys,
fines, court costs, property, or other funds coming into
his
the
supervisor´s control or possession or
being disbursed by
him
the
supervisor. The
department
division
shall keep a permanent record of the audit of each
probation/parole
supervisor´s accounts on file. It shall be the duty of the employee of the
department
division
conducting the audit to notify the
department
division
in writing of any discrepancy of an illegal nature that might result in
prosecution. The
department
division
shall have the right to interview and make inquiry of certain selected payors or
recipients of funds, as it may choose, without notifying the
probation/parole
supervisor, to carry out the purposes of the audit. The employee who conducts
the audit shall be required to give bond in such amount as may be set by the
department
division,
in the same manner and for the same purposes as provided under Code Section
42-8-26 for the bonds of
probation/parole
supervisors. The bond shall bind the employee and
his
the
surety in the performance of
his
the
employee´s duties.
(b)
Any overpayment of fines, restitutions, or other moneys owed as a condition of
probation shall not be refunded to the probationer if the amount of
such
the
overpayment is less than $5.00."
SECTION
19.
Said
title is further amended by revising subsections (b), (c), and (d) of Code
Section 42-8-34, relating to probation hearings, as follows:
"(b)
Prior to the hearing, the court may refer the case to the
probation/parole
supervisor of the circuit in which the court is located for investigation and
recommendation. The court, upon such reference, shall direct the supervisor to
make an investigation and to report to the court, in writing at a specified
time, upon the circumstances of the offense and the criminal record, social
history, and present condition of the defendant, together with the
supervisor´s recommendation; and it shall be the duty of the supervisor to
carry out the directive of the court.
(c)
Subject to the provisions of subsection (a) of Code Section 17-10-1 and
subsection (f) of Code Section 17-10-3, if it appears to the court upon a
hearing of the matter that the defendant is not likely to engage in a criminal
course of conduct and that the ends of justice and the welfare of society do not
require that the defendant shall presently suffer the penalty imposed by law,
the court in its discretion shall impose sentence upon the defendant but may
stay and suspend the execution of the sentence or any portion thereof or may
place
him
the
defendant on probation under the
supervision and control of the
probation/parole
supervisor for the duration of
such
probation
the
sentence. The period of probation or
suspension shall not exceed the maximum sentence of confinement which could be
imposed on the defendant.
(d)(1)
In every case that a court of this state or any other state sentences a
defendant to probation or any pretrial release or diversion program under the
supervision of the
department
division,
in addition to any fine or order of restitution imposed by the court, there
shall be imposed a probation fee as a condition of probation, release, or
diversion in the amount equivalent to $23.00 per each month under supervision,
and in addition, a one-time fee of $50.00 where such defendant was convicted of
any felony. The probation fee may be waived or amended after administrative
process by the
department
division
and approval of the court, or upon determination by the court, as to the undue
hardship, inability to pay, or any other extenuating factors which prohibit
collection of the fee; provided, however, that the imposition of sanctions for
failure to pay fees shall be within the discretion of the court through judicial
process or hearings. Probation fees shall be waived on probationers
incarcerated or detained in a
departmental
Department of
Corrections or other confinement facility
which prohibits employment for wages. All probation fees collected by the
department
division
shall be paid into the general fund of the state treasury, except as provided in
subsection (f) of Code Section 17-15-13, relating to sums to be paid into the
Georgia Crime Victims Emergency Fund. Any fees collected by the court under
this paragraph shall be remitted not later than the last day of the month after
such fee is collected to the Georgia Superior Court Clerks´ Cooperative
Authority for deposit into the general fund of the state treasury.
(2)
In addition to any other provision of law, any person convicted of a violation
of Code Section 40-6-391 or subsection (b) of Code Section 16-13-2 who is
sentenced to probation or a suspended sentence by a municipal, magistrate,
probate, recorder´s, mayor´s, state, or superior court shall also be
required by the court to pay a one-time fee of $25.00. The clerk of court, or
if there is no clerk the person designated to collect fines, fees, and
forfeitures for such court, shall collect such fee and remit the same not later
than the last day of the month after such fee is collected to the Georgia
Superior Court Clerks´ Cooperative Authority for deposit into the general
fund of the state treasury."
SECTION
20.
Said
title is further amended by revising subsection (a) of Code Section 42-8-34.2,
relating to a defendant´s delinquent payment of fines, costs, or
restitution or reparation and costs of garnishment, as follows:
"(a)
In the event that a defendant is delinquent in the payment of fines, costs, or
restitution or reparation, as was ordered by the court as a condition of
probation, the defendant´s
probation/parole
supervisor
officer
is authorized, but not required, to execute a sworn affidavit wherein the amount
of arrearage is set out. In addition, the affidavit shall contain a succinct
statement as to what efforts the
department
division
has made in trying to collect the delinquent amount. The affidavit shall then
be submitted to the sentencing court for approval. Upon signature and approval
of the court, said arrearage shall then be collectable through issuance of a
writ of fieri facias by the clerk of the sentencing court; and the
department
division
may enforce such collection through any judicial or other process or procedure
which may be used by the holder of a writ of execution arising from a civil
action."
SECTION
21.
Said
title is further amended by revising Code Section 42-8-35, relating to terms and
conditions of probation, as follows:
"42-8-35.
(a)
The court shall determine the terms and conditions of probation and may provide
that the probationer shall:
(1)
Avoid injurious and vicious habits;
(2)
Avoid persons or places of disreputable or harmful character;
(3)
Report to the
probation/parole
supervisor as directed;
(4)
Permit the supervisor to visit the probationer at the probationer´s home or
elsewhere;
(5)
Work faithfully at suitable employment insofar as may be possible;
(6)
Remain within a specified location; provided, however, that the court shall not
banish a probationer to any area within the state:
(A)
That does not consist of at least one entire judicial circuit as described by
Code Section 15-6-1; or
(B)
In which any service or program in which the probationer must participate as a
condition of probation is not available;
(7)
Make reparation or restitution to any aggrieved person for the damage or loss
caused by the probationer´s offense, in an amount to be determined by the
court. Unless otherwise provided by law, no reparation or restitution to any
aggrieved person for the damage or loss caused by the probationer´s offense
shall be made if the amount is in dispute unless the same has been
adjudicated;
(8)
Make reparation or restitution as reimbursement to a municipality or county for
the payment for medical care furnished the person while incarcerated pursuant to
the provisions of Article 3 of Chapter 4 of this title. No reparation or
restitution to a local governmental unit for the provision of medical care shall
be made if the amount is in dispute unless the same has been
adjudicated;
(9)
Repay the costs incurred by any municipality or county for wrongful actions by
an inmate covered under the provisions of paragraph (1) of subsection (a) of
Code Section 42-4-71;
(10)
Support the probationer´s legal dependents to the best of the
probationer´s ability;
(11)
Violate no local, state, or federal laws and be of general good
behavior;
(12)
If permitted to move or travel to another state, agree to waive extradition from
any jurisdiction where the probationer may be found and not contest any effort
by any jurisdiction to return the probationer to this state; and
(13)
Submit to evaluations and testing relating to rehabilitation and participate in
and successfully complete rehabilitative programming as directed by the
department.
(b)
In determining the terms and conditions of probation for a probationer who has
been convicted of a criminal offense against a victim who is a minor or
dangerous sexual offense as those terms are defined in Code Section 42-1-12, the
court may provide that the probationer shall be:
(1)
Prohibited from entering or remaining present at a victim´s school, place
of employment, place of residence, or other specified place at times when a
victim is present or from loitering in areas where minors congregate, child care
facilities, churches, or schools as those terms are defined in Code Section
42-1-12;
(2)
Required to wear a device capable of tracking the location of the probationer by
means including electronic surveillance or global positioning systems. The
department
division
shall assess and collect fees from the probationer for such monitoring at levels
set by regulation by the
department
division;
and
(3)
Prohibited from seeking election to a local board of
education."
SECTION
22.
Said
title is further amended by revising Code Section 42-8-35.1, relating to special
alternative incarceration, as follows:
"42-8-35.1.
(a)
In addition to any other terms or conditions of probation provided for under
this chapter, the trial judge may provide that probationers sentenced for felony
offenses committed on or after July 1, 1993, to a period of time of not less
than one year on probation as a condition of probation must satisfactorily
complete a program of confinement in a 'special alternative
incarceration—probation boot camp' unit of
the
department
corrections
for a period of 120 days computed from the time of initial confinement in the
unit; provided, however,
the
department
that
corrections may release the defendant upon
service of 90 days in recognition of excellent behavior.
(b)
Before a court can place this condition upon the sentence, an initial
investigation
will
shall
be completed by the
probation/parole
supervisor
officer
which will indicate that the probationer is qualified for such treatment in that
the individual does not appear to be physically or mentally disabled in a way
that would prevent him
or
her from strenuous physical activity, that
the individual has no obvious contagious diseases, that the individual is not
less than 17 years of age nor more than 30 years of age at the time of
sentencing, and that
the
department
corrections
has granted provisional approval of the placement of the individual in the
'special alternative incarceration—probation boot camp' unit.
(c)
In every case where an individual is sentenced under the terms of this Code
section, the sentencing court shall, within its probation order, direct
the
department
corrections
to arrange with the sheriff´s office in the county of incarceration to have
the individual delivered to a designated unit of
the
department
corrections
within a specific date not more than 15 days after the issuance of such
probation order by the court.
(d)
At any time during the individual´s confinement in the unit, but at least
five days prior to his
or
her expected date of release,
the
department
corrections
will certify to the trial court as to whether the individual has satisfactorily
completed this condition of probation.
(e)
Upon the receipt of a satisfactory report of performance in the program from
the
department
corrections,
the trial court shall release the individual from confinement in the 'special
alternative incarceration—probation boot camp' unit. However, the receipt
of an unsatisfactory report will be grounds for revocation of the probated
sentence as would any other violation of a condition or term of
probation.
(f)
The satisfactory report of performance in the program from
the
department
corrections
shall, in addition to the other requirements specified in this Code section,
require participation of the individual confined in the unit in such adult
education courses necessary to attain the equivalency of a grade five competency
level as established by the State Board of Education for elementary schools.
Those individuals who are mentally disabled as determined by initial testing are
exempt from mandatory participation. After the individual is released from the
unit, it shall be a special condition of probation that the individual
participate in an education program in the community until grade five level
competency is achieved or active probation supervision terminates. It shall be
the duty of
the
department
corrections
to certify to the trial court that such individual has satisfactorily completed
this condition of probation while on active probation supervision. The receipt
of an unsatisfactory report may be grounds for revocation of the probated
sentence as would any other violation of a condition or term of probation.
Under certain circumstances, the probationer may be exempt from this requirement
if it is determined by the
probation/parole
supervisor
officer
that community education resources are inaccessible to the
probationer."
SECTION
23.
Said
title is further amended by revising subsection (c) of Code Section 42-8-35.4,
relating to confinement in probation detention centers, as follows:
"(c)
During the period of confinement,
the
department
corrections
may transfer the probationer to other facilities in order to provide needed
physical and mental health care or for other reasons essential to the care and
supervision of the probationer or as necessary for the effective administration
and management of its facilities."
SECTION
24.
Said
title is further amended by revising subsection (c) of Code Section 42-8-35.5,
relating to confinement in probation diversion centers, as follows:
"(c)
Corrections
The
department may assess and collect room and
board fees from diversion center program participants at a level set by
the
department
corrections."
SECTION
25.
Said
title is further amended by revising Code Section 42-8-35.7, relating to drug
and alcohol screening of probationers, as follows:
"42-8-35.7.
Unless
the court has ordered more frequent such screenings, it shall be the duty of
each
probation/parole
supervisor to administer or have administered a drug and alcohol screening not
less than once every 60 days to any person who is placed on probation and who,
as a condition of such probation, is required to undergo regular, random drug
and alcohol screenings, provided that the drug and alcohol screenings required
by this Code section shall be performed only to the extent that necessary funds
therefor are appropriated in the state budget."
SECTION
26.
Said
title is further amended by revising subsection (a) of Code Section 42-8-36,
relating to a probationer´s duties, as follows:
"(a)(1)
Any other provision of this article to the contrary notwithstanding, it shall be
the duty of a probationer, as a condition of probation, to keep his
or
her
probation/parole
supervisor informed as to his
or
her residence. Upon the recommendation of
the
probation/parole
supervisor, the court may also require, as a condition of probation and under
such
any
terms as the court deems advisable, that the probationer keep the
probation/parole
supervisor informed as to
his
the
probationer´s whereabouts. The
failure of a probationer to report to his
or
her
probation/parole
supervisor as directed or a return of non est inventus or other return to a
warrant, for the violation of the terms and conditions of probation, that the
probationer cannot be found in the county that appears from the records of the
probation/parole
supervisor to be the probationer´s county of residence shall automatically
suspend the running of the probated sentence until the probationer shall
personally report to the
probation/parole
supervisor, is taken into custody in this state, or is otherwise available to
the court; and such period of time shall not be included in computing creditable
time served on probation or as any part of the time that the probationer was
sentenced to serve. The effective date of the tolling of the sentence shall be
the date that the
officer
probation/parole
supervisor returns the warrant showing non
est inventus. Any officer authorized by law to issue or serve warrants may
return the warrant for the absconded probationer showing non est
inventus.
(2)
In addition to the provisions of paragraph (1) of this subsection, if the
probation/parole
supervisor submits an affidavit to the court stating that a probationer has
absconded and cannot be found, the running of the probated sentence shall be
suspended effective on the date such affidavit is submitted to the court and
continuing until the probationer shall personally report to the
probation/parole
supervisor, is taken into custody in this state, or is otherwise available to
the court."
SECTION
27.
Said
title is further amended by revising subsection (b) of Code Section 42-8-37,
relating to terminating and reviewing probation cases, as follows:
"(b)
Upon the request of the chief judge of the court from which
said
a
person was sentenced, the case of each person receiving a probated sentence of
more than two years shall be reviewed by the
probation/parole
supervisor responsible for that case after service of two years on probation,
and a written report of the probationer´s progress shall be submitted to
the sentencing court along with the supervisor´s recommendation as to early
termination. Upon the request of the chief judge of the court from which said
person was sentenced, each such case shall be reviewed and a written report
submitted annually thereafter, or more often if required, until the termination,
expiration, or other disposition of the case."
SECTION
28.
Said
title is further amended by revising subsections (a) and (d) of Code Section
42-8-38, relating to the procedures in probation revocation matters, as
follows:
"(a)
Whenever, within the period of probation, a
probation/parole
supervisor believes that a probationer under his
or
her supervision has violated
his
the terms
of probation in a material respect,
he
the
probation/parole supervisor may arrest the
probationer without warrant, wherever found, and return
him
the
probationer to the court granting the
probation or, if under supervision in a county or judicial circuit other than
that of conviction, to a court of equivalent original criminal jurisdiction
within the county wherein the probationer resides for purposes of supervision.
Any officer authorized by law to issue warrants may issue a warrant for the
arrest of the probationer upon the affidavit of one having knowledge of the
alleged violation, returnable forthwith before the court in which revocation
proceedings are being brought."
"(d)
In cases where the probation is revoked in a county other than the county of
original conviction, the clerk of court in the county revoking probation may
record the order of revocation in the judge´s minute docket, which
recordation shall constitute sufficient permanent record of the proceedings in
that court. The clerk shall send one copy of the order revoking probation to
the
department
corrections
to serve as a temporary commitment and shall send the original order revoking
probation and all other papers pertaining thereto to the county of original
conviction to be filed with the original records. The clerk of court of the
county of original conviction shall then issue a formal commitment to
the
department
corrections."
SECTION
29.
Said
title is further amended by revising Code Section 42-8-42, relating to the
provision of office space and clerical help by the Department of Corrections and
counties, as follows:
"42-8-42.
The
department
Corrections
may provide office space and clerical help wherever needed. The counties of
this state shall cooperate in this respect and, wherever possible, shall furnish
office space if needed."
SECTION
30.
Said
title is further amended by revising subsections (b) and (c) of Code Section
42-8-72, relating to community service as a condition of probation, as
follows:
"(b)
The judge may confer with the prosecutor, defense attorney,
probation/parole
supervisor, community service officer, or other interested persons to determine
if the community service program is appropriate for an offender. If community
service is ordered as a condition of probation, the court shall
order:
(1)
Not less than 20 hours nor more than 250 hours in cases involving traffic or
ordinance violations or misdemeanors, said service to be completed within one
year; or
(2)
Not less than 20 hours nor more than 500 hours in felony cases, said service to
be completed within three years.
(c)(1)
Any agency may recommend to the court that certain disabled persons are in need
of a live-in attendant. The judge shall confer with the prosecutor, defense
attorney,
probation/parole
supervisor, community service officer, or other interested persons to determine
if a community service program involving a disabled person is appropriate for an
offender. If community service as a live-in attendant for a disabled person is
deemed appropriate and if both the offender and the disabled person consent to
such service, the court may order such live-in community service as a condition
of probation but for no longer than two years.
(2)
The agency shall be responsible for coordinating the provisions of the cost of
food or other necessities for the offender which the disabled person is not able
to provide. The agency, with the approval of the court, shall determine a
schedule which will provide the offender with certain free hours each
week.
(3)
Such live-in arrangement shall be terminated by the court upon the request of
the offender or the disabled person. Upon termination of such an arrangement,
the court shall determine if the offender has met the conditions of
probation.
(4)
The appropriate agency shall make personal contact with the disabled person on a
frequent basis to ensure the safety and welfare of the disabled
person."
SECTION
31.
Said
title is further amended by revising subsection (b) of Code Section 42-8-111,
relating to court ordered installation of ignition interlock devices, as
follows:
"(b)
Any resident of this state who is ordered to use an ignition interlock device,
as a condition of probation, shall complete the DUI Alcohol or Drug Use Risk
Reduction Program and submit to the court or
probation
department
Division of
Probation/Parole Community Based
Supervision a certificate of completion of
the DUI Alcohol or Drug Use Risk Reduction Program and certification of
installation of a certified ignition interlock device to the extent required by
subsection (a) of this Code section."
SECTION
32.
Said
title is further amended by revising subsection (a) of Code Section 42-8-114,
relating to specifying providers for ignition interlock devices, as
follows:
"(a)
No judicial officer, probation officer,
probation/parole
supervisor, law enforcement officer, or
other officer or employee of a court; person who owns, operates, or is employed
by a private company which has contracted to provide private probation services
for misdemeanor cases; or professional bondsman or agent or employee thereof
shall specify, directly or indirectly, a particular provider center which the
person may or shall utilize when use of an ignition interlock device is
required. This subsection shall not prohibit any judicial officer, probation
officer,
probation/parole
supervisor, law enforcement officer, or
other officer or employee of a court; owner, operator, or employee of a private
company which has contracted to provide probation services for misdemeanor
cases; or professional bondsman or agent or employee thereof from furnishing any
person, upon request, the names of certified provider
centers."
SECTION
33.
Said
title is further amended by revising Code Section 42-8-116, relating to warning
labels for ignition interlock devices, as follows:
"42-8-116.
The
providers certified by the Department of Driver Services shall design and adopt
pursuant to regulations of the
department
Department of
Driver Services a warning label which
shall be affixed to each ignition interlock device upon installation. The label
shall contain a warning that any person tampering, circumventing, or otherwise
misusing the device is guilty of a misdemeanor and may be subject to civil
liability."
SECTION
34.
Said
title is further amended by revising Code Section 42-8-151, relating to
definitions relative to the "Probation Management Act of 2004," and inserting in
lieu thereof the following:
"42-8-151.
For
purposes of this article, the term:
(1)
'Chief probation officer' means the highest ranking field probation officer in
each judicial circuit.
(2)
'Commissioner' means the commissioner of corrections.
(3)
'Department'
means the Department of Corrections
'Division'
means the Division of Probation/Parole Community Based
Supervision.
(4)
'Electronic monitoring' means supervising, mapping, or tracking the location of
a probationer by means including electronic surveillance, voice recognition,
facial recognition, fingerprinting or biometric scan, automated kiosk,
automobile ignition interlock device, or global positioning systems which may
coordinate data with crime scene information.
(5)
'Hearing officer' means an impartial
department
division
employee or representative who has been selected and appointed to hear alleged
cases regarding violations of probation for administrative
sanctioning.
(6)
'Initial sanction' means the sanction set by the judge upon initial
sentencing.
(7)
'Intensive probation' means a level of probation supervision which includes, but
is not limited to, curfews, community service, drug testing, program
participation, special conditions of probation, and general conditions of
probation as set forth in Code Section 42-8-35.
(8)
'Options system day reporting center' means a state facility providing
supervision of probationers which includes, but is not limited to, mandatory
reporting, program participation, drug testing, community service, all special
conditions of probation, and general conditions of probation as set forth in
Code Section 42-8-35.
(9)
'Options system probationer' means a probationer who has been sentenced to the
sentencing options system.
(10)
'Probation supervision' means a level of probation supervision which includes,
but is not limited to, general conditions of probation as set forth in Code
Section 42-8-35 and all special conditions of probation.
(11)
'Residential substance abuse treatment facility' means a state correctional
facility that provides inpatient treatment for alcohol and drug
abuse.
(12)
'Sentencing options system' means a continuum of sanctions for probationers that
includes the sanctions set forth in subsection (c) of Code Section
42-8-153."
SECTION
35.
Said
title is further amended by revising Code Section 42-8-153, relating to
administrative sanctions as alternative to judicial modification or revocation
of probation, as follows:
"42-8-153.
(a)
The
department
division
is authorized to establish by rules and regulations a system of administrative
sanctions as an alternative to judicial modifications or revocations for
probationers who violate the terms and conditions of the sentencing options
system established under this article. The
department
division
may not, however, sanction probationers for violations of special conditions of
probation or general conditions of probation for which the sentencing judge has
expressed an intention that such violations be heard by the court pursuant to
Code Section 42-8-34.1.
(b)
The
department
division
shall only impose restrictions which are equal to or less restrictive than the
initial sanction set by the sentencing judge.
(c)
The administrative sanctions which may be imposed by the
department
division
are as follows, from most restrictive to least restrictive:
(1)
Probation detention center or residential substance abuse treatment
facility;
(2)
Probation boot camp;
(3)
Probation diversion center;
(4)
Intensive probation;
(5)
Options system day reporting center;
(6)
Electronic monitoring;
(7)
Community service; or
(8)
Probation supervision."
SECTION
36.
Said
title is further amended by revising Code Section 42-8-155, relating to hearings
regarding violations, as follows:
"42-8-155.
(a)
If an options system probationer violates the conditions of probation, the
department
division
may impose administrative sanctions as an alternative to judicial modification
or revocation of probation.
(b)
Upon issuance of a petition outlining the alleged probation violations, the
chief probation officer, or his or her designee, may conduct a hearing to
determine whether an options system probationer has violated a condition of
probation. If the chief probation officer determines that the probationer has
violated a condition of probation, the chief probation officer is authorized to
impose sanctions consistent with paragraphs (4) through (8) of subsection (c) of
Code Section 42-8-153. The failure of an options system probationer to comply
with a sanction imposed by the chief probation officer shall constitute a
violation of probation.
(c)(1)
Upon issuance of a petition outlining the alleged probation violations, the
hearing officer may initiate an administrative proceeding to determine whether
an options system probationer has violated a condition of probation. If the
hearing officer determines by a preponderance of the evidence that the
probationer has violated a condition of probation, the hearing officer may
impose sanctions consistent with Code Section 42-8-153.
(2)
The administrative proceeding provided for under this subsection shall be
commenced within 15 days but not less than 48 hours after notice of the
administrative proceeding has been served on the probationer. The
administrative proceeding may be conducted electronically.
(d)
The failure of a probationer to comply with the sanction or sanctions imposed by
the chief probation officer or hearing officer shall constitute a violation of
probation.
(e)
An options system probationer may at any time waive a hearing and voluntarily
accept the sanctions proposed by the
department
division."
SECTION
37.
Said
title is further amended by revising Code Section 42-8-156, relating to finality
of hearing officer´s decision, as follows:
"42-8-156.
(a)
The hearing officer´s decision shall be final unless the options system
probationer files an appeal in the sentencing court. Such appeal shall name the
commissioner as defendant and shall be filed within 30 days of the issuance of
the decision by the
department
division.
(b)
This appeal shall be first reviewed by the judge upon the record. At the
judge´s discretion, a de novo hearing may be held on the decision. The
filing of the appeal shall not stay the
department´s
division´s
decision.
(c)
Where the sentencing judge does not act on the appeal within 30 days of the date
of the filing of the appeal, the
department´s
division´s
decision shall be affirmed by operation of law."
SECTION
38.
Said
title is further amended by revising Code Section 42-8-158, relating to
application only in counties with certified options system day reporting center,
as follows:
"42-8-158.
This
article shall only apply in counties that have an options system day reporting
center certified by the
department
division."
SECTION
39.
Said
title is further amended by revising Code Section 42-9-3, relating to
definitions related to the State Board of Pardons and Paroles, as
follows:
"42-9-3.
As
used in this chapter, the
term:
(1)
'Board'
'board'
means the State Board of Pardons and Paroles.
(2)
'Division' means the Division of Probation/Parole Community Based
Supervision.
(3)
'Split sentence' means any felony sentence that includes a term of imprisonment
followed by a term of
probation."
SECTION
40.
Said
title is further amended by revising Code Section 42-9-20, relating to general
powers and duties of the State Board of Pardons and Paroles, as
follows:
"42-9-20.
(a)
In all cases in which the chairman of the board or any other member designated
by the board has suspended the execution of a death sentence to enable the full
board to consider and pass on same, it shall be mandatory that the board act
within a period not exceeding 90 days from the date of the suspension order. In
the cases which the board has power to consider, the board shall be charged with
the duty of determining which inmates serving sentences imposed by a court of
this state may be released on pardon or parole and fixing the time and
conditions thereof. The board shall also be charged with the duty of
supervising all persons placed on parole, of determining violations thereof and
of taking action with reference thereto, of making
such
investigations as may be necessary, and of aiding parolees or probationers in
securing employment. It shall be the duty of the board personally to study the
cases of those inmates whom the board has power to consider so as to determine
their ultimate fitness for
such
relief as the board has power to grant. The board by an affirmative vote of a
majority of its members shall have the power to commute a sentence of death to
one of life imprisonment.
(b)
With respect to inmates sentenced under split sentences entered on or after July
1, 2007, and all persons paroled or otherwise released by the board prior to
completion of his or her sentence on or after July 1, 2007, the board shall have
no duty to supervise inmates who have been paroled or otherwise released prior
to completion of their sentence of confinement. Supervision of inmates paroled,
released, or released from split sentence confinement shall be through an
increase in their period of probation, as provided in Code Section 17-10-1.3.
Any reference elsewhere in this chapter to duties of the board with respect to
supervision of parolees and other persons released from confinement shall not
include inmates released from confinement on or after July 1,
2007."
SECTION
41.
Said
title is further amended by revising Code Section 42-9-21, relating to
supervision of persons placed on parole or other conditional release, as
follows:
"42-9-21.
(a)
The board shall have the function and responsibility of supervising all persons
placed on parole or other conditional release by the board
prior to July
1, 2007. On and after July 1, 2007, the division shall have the function
and responsibility of supervising all persons placed on parole or other
conditional release by the
board.
(b)
The board
is
and the
division are authorized to maintain and
operate or to enter into memoranda of agreement or other written documents
evidencing contracts with other state agencies, persons, or any other entities
for transitional or inte