You have requested my opinion whether the reimbursement provisions of O.C.G.A. § 42-5-51(c) require the Department of Corrections (hereinafter “Department”) to reimburse counties that maintain physical custody of persons who are awaiting transfer to either a state probation detention center or probation diversion center. It is my opinion that the reimbursement provisions of O.C.G.A. § 42-5-51(c) are not applicable to probationers awaiting transfer to probation detention or diversion centers.

In considering this issue, it is helpful to review the ministerial process that occurs after a convicted defendant has been sentenced to a period of incarceration. Within 30 days of an inmate’s being sentenced to incarceration, the clerk of the sentencing court is to forward certain sentencing-related documents to the Commissioner of the Department. O.C.G.A. § 42-5-50(a). After receipt of these documents, the Commissioner has 15 days to “assign” the inmate to one of the Department’s institutions. O.C.G.A. § 42-5-50(b).

However, while assignment occurs within 15 days of receipt of the sentencing documents from the clerk, actual physical custody of the inmate will continue with the county or other local jail until the inmate is picked up by the Department. When the picking up of inmates sentenced to incarceration is delayed, the following relevant portions of O.C.G.A. § 42-5-51(c) are applicable regarding reimbursement to the county for the cost of the extended local incarceration:

After proper documentation is received from the clerk of the court, the department shall have 15 days to transfer an inmate under sentence to the place of confinement. If the inmate is not transferred within the 15 days, the department will reimburse the county, in a sum not less than $7.50 per day per inmate and in such an amount as may be appropriated for this purpose by the General Assembly, for the cost of the incarceration, commencing 15 days after proper documentation is received by the department from the clerk of the court. The reimbursement provisions of this Code section shall only apply to payment for the incarceration of felony inmates available for transfer to the department.

(Emphasis added.) Thus, by the express terms of the reimbursement statute, and depending upon the funds the General Assembly has appropriated for that purpose, the Department must reimburse a county at least $7.50 per inmate per day “for the cost of incarceration” of felony inmates available for transfer.

For purposes of this opinion, I assume that the majority of persons going to these probation detention or diversion centers are felony probationers who have either been initially sentenced to probation detention or diversion centers or who are being sent there pursuant to a modification of a previously imposed probationary sentence. See O.C.G.A. §§ 42-8-35.4(a)1 ; 42-8-35.5(a)2 . An individual who has been sentenced to probation is not considered to be serving a sentence of incarceration. “Incarceration” and “probation” have been considered by the appellate courts of this state to be mutually exclusive concepts. Pitts v. State, 206 Ga. App. 635, 637, 426 S.E.2d 257 (1992). The Court of Appeals held that

a sentence of “incarceration” denotes a continuous period of confinement in a jail or penitentiary uninterrupted by periods of freedom, whereas a sentence to be served on “probation” denotes a limitation of freedom short of requiring the service of a continuous and uninterrupted period of confinement in a jail or penitentiary. A defendant sentenced to serve a continuous and uninterrupted period of confinement in a jail or penitentiary is “incarcerated.” A defendant sentenced to undergo other forms of confinement is on “probation.”

Id.

Moreover, confinement within a probation detention center or a probation diversion center is a type of limited confinement and is an “authorized term[] of a sentence of probation.” Penaherrera v. State, 211 Ga. App. 162, 163, 438 S.E.2d 661 (1993). “Georgia law thus authorizes a trial court to condition a defendant’s probation on limited confinement in a detention or diversion center . . . . Such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary.” Id. See also McKinney v. State, 240 Ga. App. 812, 814, 525 S.E.2d 395 (1999) (holding the same as to probation boot camps). Furthermore, “the time . . . spent initially in the [county facility] awaiting a place [in a detention or diversion center] was not part of . . . [the] sentence and does not qualify as “incarceration.” Id. at n.1 (citing Penaherrera v. State, 211 Ga. App. at 164, which held “the fact that defendant was not transferred to the detention center until 27 or 28 days after sentencing does not invalidate the sentence or violate its terms.”).

Felony probationers who are merely awaiting transfer to probation detention and diversion centers are not serving sentences of incarceration. Thus, under Georgia law, such probationers are not included among the class of incarcerated persons to which O.C.G.A. § 42-5-51(c) applies.3 However, despite the inapplicability of that Code section to probationers, the Department can nevertheless take reasonable steps to place such probationers with the detention and diversion centers as soon as the requisite space becomes available so as to minimize the costs incurred by local jails.

Therefore, it is my official opinion that the reimbursement provisions of O.C.G.A. § 42-5-51(c) do not apply to probationers awaiting transfer to probation detention centers or probation diversion centers.

Prepared by:

J. JAYSON PHILLIPS
Assistant Attorney General

1 O.C.G.A. § 42-8-35.4(a) states in relevant part as follows: “In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant . . . 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.” (Emphasis added.)

2 O.C.G.A. § 42-8-35.5(a) states in relevant part as follows: “In addition to any other terms and conditions of probation provided in this article, the trial judge may require that probationers . . . satisfactorily complete, as a condition of that probation, a program in a probation diversion 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 diversion center.” (Emphasis added.)

3 However, in answering this question it is also necessary to consider those situations where a convicted felon has had his or her probation revoked and thereafter is subsequently sentenced to a probation detention center or probation diversion center as a part of non-probationary incarceration. Pursuant to O.C.G.A. § 17-10-1(a)(3)(A):

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.

(Emphasis added.)

In situations where a felon’s probation has been revoked pursuant to the above Code section, he or she may be subsequently confined in a probation detention center or probation diversion center. Where such confinement has been ordered, the inmate is no longer serving probation, but rather is being “incarcerated.” Thus, the reimbursement provisions of O.C.G.A. § 42-5-51(c) would be applicable to revoked felons awaiting transfer to the extent the General Assembly has appropriated funds for that purpose.