Summary
In Sanford v. State, 251 Ga. App. 190, 191, 553 S.E.2d 854 (2001), the trial court revoked the defendant’s probation and ordered him to serve "180 days with credit for 24 days served/NO EARLY RELEASE."
Summary of this case from Evans v. StateOpinion
A01A1268.
DECIDED: AUGUST 13, 2001.
Probation revocation. DeKalb State Court. Before Judge Robins.
Paola F. Torselli, for appellant.
Gwendolyn R. Keyes, Solicitor-General, Amy R. Simon, Assistant Solicitor-General, for appellee.
Randall W. Sanford pled guilty to driving under the influence, driving with a suspended license, and driving without proof of insurance. The trial court sentenced Sanford to 36 months and directed that he serve 30 days in confinement with the remainder on probation. On December 22, 2000, after Sanford violated the terms of his probation, the trial court entered an order revoking the probation and requiring him to serve "180 days with credit for 24 days served/NO EARLY RELEASE." After the trial court denied Sanford's motion to delete the "no early release" provision from the sentence, we granted his Application for Discretionary Appeal. For reasons that follow, we remand the case to the trial court to modify the sentence.
Capitalization in original.
Georgia law authorizes the custodian of a county inmate to "award earned time allowances . . . based on institutional behavior" and requires that "[a]n inmate sentenced to confinement as a county inmate shall be released at the expiration of his or her sentence less the time deducted for earned time allowances." We have ruled that "these provisions are directly related to the duties of administration, affirmatively delegated to the custodians of inmates by the legislature." Likewise, our Supreme Court has ruled that a sentencing "judge has no authority to say what good-time or extra good-time allowance a prisoner shall be given, as the law vests that authority in the Board of Corrections for prisoners under its jurisdiction . . . and as to misdemeanor prisoners sentenced to serve in the county, in the custodian of the prisoners."
O.C.G.A. § 42-4-7 (b) (1), (3) (Supp. 2001).
Davis v. State, 181 Ga. App. 498 (1) ( 353 S.E.2d 7) (1987).
Grimes v. Stewart, 222 Ga. 713 ( 152 S.E.2d 369) (1966). See also Hutchins v. State, 243 Ga. App. 261 (2) ( 533 S.E.2d 107) (2000); Johns v. State, 160 Ga. App. 535, 536, 537 ( 287 S.E.2d 617) (1981).
When the trial court in this case denied Sanford's motion for sentence modification, it recognized that it had no authority to "`impose its will over the Executive Department'" concerning an earned time allowance. The court insisted, however, that the "no early release" provision in the probation revocation order "was intended to be advisory to the sheriff," and it therefore denied Sanford's motion. While we will not dispute the trial court's intent, the plain language of its revocation order emphatically requires Sanford to serve his time with "NO EARLY RELEASE." Notwithstanding the trial court's intent, the order speaks for itself, and Sanford's "post-sentence custodian should not be asked to comply with an order of the trial court which is inconsistent with the law." Accordingly, this matter is remanded to the trial court with direction to strike the "no early release" provision from the probation revocation order.
Johnson v. State, 248 Ga. App. 454, 456 (3) (S.E.2d) (2001).
Judgment of probation revocation reversed in part and remanded with direction. JOHNSON, P.J., and ELLINGTON, J., concur.