EVANS v. the STATE.
EVANS v. the STATE.
Opinion
Following a jury trial, Ronnie O. Evans was convicted of the misdemeanor offenses of driving under the influence - less safe ( OCGA § 40-6-391 (a) (1) ) and operating a motor vehicle with defective or no headlights ( OCGA § 40-8-22 ). 1 The trial court sentenced Evans to consecutive terms of 12 months' imprisonment, for a total sentence of 24 months. 2 The trial court ordered that Evans serve the sentence "day-for-day" and "sit in jail for two years," and that if he were to be released from prison before the expiration of the 24-month term, he would be required to serve the remainder on probation. Evans appeals, arguing that these two conditions of his sentence are erroneous. We agree, and therefore, reverse and remand for resentencing without these conditions.
1. Evans argues, and the State concedes, that the trial court erred in requiring that he serve his sentence "day-for-day."
OCGA § 42-4-7 (b) (1) provides that the custodian of a county inmate is authorized to "award earned time allowances ... based on institutional behavior," while OCGA § 42-4-7 (b) (3) provides 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." In
Sanford v. State
,
We have ruled that [ OCGA § 42-4-7 (b) (1) & (3) ] 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.
(Citations and punctuation omitted.)
Similarly, here the trial court's requirement that Evans serve his 24-month sentence "day-for-day" is erroneous because it usurps the authority of the custodian of a county inmate under OCGA § 42-4-7 (b) to grant earned-time allowances. Accordingly, we reverse Evans's sentence and remand so the trial court can strike the requirement that Evans serve his sentence "day-for-day."
Within this enumeration of error, Evans also claims that the trial court erred in sentencing him on his conviction for driving with defective or no headlights, and that he should be resentenced on this count. However, "[t]his claim is deemed abandoned because [Evans] does not support it with argument or citation to authority, and mere conclusory statements are not the type of meaningful argument contemplated by Court of Appeals Rule 25 (a) (3)." (Citation and punctuation omitted.)
Percell v. State
,
2. Evans also argues that under
Hutchins v. State
,
In
Johns , supra,
attempt to impose the additional probation at the early release date is contrary to the expressed intent of the Legislature that in computing a prisoner's release date it will be 'less the time earned as earned time allowances.' If we were to sanction this type sentence, it would permit the trial court to forfeit 'earned time' of a prisoner awarded by the Executive Department and nullify a legislative enactment on computation of a prisoner's release date.
(Citation omitted.)
Subsequently, in
Hutchins , supra,
Therefore, under Johns and Hutchins the requirement that Evans be placed on probation if he is released prior to the end of his prison term is erroneous, as it usurps the authority of his custodian under OCGA § 42-4-7 (b) to award him earned-time credit. The holding in Hutchins is not subject to attack on the basis that it relied on Johns , as both holdings are based upon the authority of the *711 custodian of an inmate to award earned-time credit and the inability of a trial court to interfere with that authority. Whether the sentences in those cases were for felony or misdemeanor offenses is immaterial.
For the reasons aforementioned, we conclude that the trial court erred in ordering that Evans serve his sentence "day-for-day" and that he be placed on probation if released before the end of his sentence. Accordingly, we reverse the sentence and remand so the trial court can remove these provisions from the sentence.
Judgment reversed in part and case remanded for resentencing.
Brown and Goss, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.