What is HB 310?
House Bill 310 (O.C.G.A. § 42-8-100 thru 109.5) affects all misdemeanor cases sentenced on or after July 1, 2015. The bill authorizes tolling under slightly more stringent standards than the previous tolling statute, limits supervision fees for some cases, explicitly authorizes electronic monitoring and other services, mandates certain revocation procedures, modifies entity reporting requirements, and allows for the registration and sanction of individual probation officers.
Who regulates misdemeanor probation?
The powers and duties previously assigned to the County and Municipal Probation Advisory Council (CMPAC) have been reassigned to the Board of Community Supervision (the Board). A reconstituted advisory council made up of five judges, a defense attorney, a private probation officer, and a governmental probation officer, shall act in an advisory role for the Board. Rules previously adopted by CMPAC remain in effect until amended, repealed, or superseded by the Board.
Who is authorized to supervise misdemeanor offenders?
Any private or governmental probation provider that is registered and approved by the Board of Community Supervision (the Board). Probation providers and their staff formerly approved and registered with the County and Municipal Advisory Council (CMPAC) are automatically registered with the Board.
Who can attend the Board meetings?
The Board Meetings are open to the public.
What is tolling and how does it work?
By law, probation sentences must end at a determinate date set by the judge at sentencing. However, probationers are required to report to their probation officer as directed, appear in court for scheduled revocation hearings, and to keep their probation officer informed as to their current contact information. If a probationer fails to meet these requirements, the time remaining on the probation sentence can be “tolled” (or stopped) until the probationer reports in-person to the probation officer, is taken into custody in Georgia, or is otherwise available to the sentencing court.
To toll a case, the probation officer must submit a sworn affidavit to the court stating the probationer either: (a) failed to appear in a court for a scheduled revocation hearing, or (b) failed to report after the probation officer made a due-diligent attempt to contact the probationer. For an officer to show due-diligence, the affidavit must state:
The probationer failed to report as directed on at least two occasions;
The probation officer attempted, on at least two separate occasions, to contact the probationer by telephone or email (and must provide the phone number or email address used for that purpose);
The probation officer sent a first-class letter directing the probationer to report in-person or by phone within 10 days or submit to possible tolling of the case (and must include the mailing address used for such purpose);
The probationer failed to report in-person or by telephone within the 10 day period noted above; and
The probationer is not listed on the local jail rosters.
If the probationer reports within the 10 day deadline described above, the probation office must schedule a revocation hearing for the next available court calendar. Tolling requirements are codified at O.C.G.A. § 42-8-105
What limits are placed on supervision fees?
Supervision fees may be ordered by the sentencing judge for probation cases only if supervision is required. If supervision is ordered solely because the probationer was unable to pay the fines on the day of sentencing (known as a “pay-only” case), then no more than three monthly supervision fees may be collected in total, regardless of the number of open probation cases. Supervision fees for pay-only cases must discontinue upon payment of the fine.
Pay Only cases allows for a Defendant to be placed on probation solely due to his/her inability to pay fines and surcharges when the sentence is imposed. Does not include restitution.
Pay-only cases will be obligated to pay no more than 3 months probation supervision fees and probation is terminated as soon as the fines and surcharges are paid in full unless it is later converted to a sentence that requires community service.
The sentencing court must also waive or modify fines and fees if the probationer is deemed to have a “significant financial hardship,” or a reasonable probability of being unable to satisfy financial obligations for two consecutive months. A significant financial hardship is presumed to exist where the probationer is indigent, is totally and permanently disabled, has a developmental disability, or was released from jail or prison within the last 12 months after being held for 30 days or more. See O.C.G.A. § 42-8-102
All probationers must be provided with a written receipt and a balance statement each time they make a payment.
What revocation procedures are required by HB 310 (O.C.G.A. § 42-8-102)?
At a revocation hearing for failure to pay or failure to report, the court must consider the probationer’s ability to pay as well as alternatives to confinement. If the court makes a written determination that the probationer’s failure to pay was willful and that adequate alternative punishments do not exist, then the court may revoke up to 120 days of the court sentence (but not more than the time remaining on the probation sentence).
At a revocation hearing for violations other than failure to pay or failure to report, the court may make a written determination that adequate alternative punishments do not exist and revoke up to 2 years (but not more than the time remaining on the probation sentence).
If a probationer is arrested on a violation of probation warrant, all outstanding fines and fees must be paid or a revocation hearing must be scheduled. If the entire time remaining on probation is revoked, all unpaid fines or fees must be negated. If only part of the time remaining on probation is revoked, the court shall determine the probationer’s responsibility for unpaid fines and fees.
How have entity reporting requirements changed?
Probation entities must submit quarterly reports to the Community Supervision Board in the same manner as was previously required. Additionally, O.C.G.A. § 42-8-108 requires that misdemeanor probation providers submit the following information on a quarterly basis:
1. Number of offenders under supervision;
2. The amount of fines, statutory surcharges, and restitution collected;
3. The amount of fees collected and the nature of such fees, including
a. probation supervision fees,
b. rehabilitation programming fees,
c. electronic monitoring fees,
d. drug or alcohol detection device fees,
e. substance abuse or mental health evaluation or treatment fees,
f. drug testing fees;
4. The number of community service hours performed by probationers under supervision;
5. A listing of any other service for which a probationer was required to pay to attend;
6. The number of offenders for whom supervision or rehabilitation has been terminated and the reason for the termination;
7. The number of warrants issued during the quarter
The same information must be submitted annually to the governing authority that entered into a contract with the provider.