A DeKalb County jury found Donald Kirk guilty beyond a reasonable doubt of vehicular homicide in the second degree, OCGA § 40-6-393 c; and improper lane change, OCGA § § 40-6-1 a; 40-6-48 1. On May 3, 2007, the trial court entered judgment and imposed the following sentence: 16 months incarceration, of which all but two days already served were probated, 12 months driver’s license suspension, defensive driving training, 180 hours community service, $1,500 fine, $39 per month supervision fee, and court costs. Kirk appealed his conviction, and this Court affirmed. See Kirk v. State , 289 Ga. App. 125 656 SE2d 251 2008. On July 29, 2009, more than 16 months after the remittitur of this Court was returned and made the judgment of the trial court, the State filed a motion “to lift the suspension of sentence and formally impose” the sentence reflected in the trial court’s May 3, 2007 judgment.1 Kirk objected, arguing that the sentence automatically expired before the State filed its motion. After a hearing, the trial court granted the State’s motion and restated the terms of the May 3, 2007 judgment. Kirk appeals, arguing that his probated sentence expired before the hearing, and, therefore, the trial court erred in “resentencing” him.2
OCGA § 17-10-9 provides, in pertinent part, in cases which are appealed to the Georgia Court of Appeals or the Georgia Supreme Court for reversal of the conviction, a criminal sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond but is incarcerated or in custody of the sheriff of the county where convicted. When the defendant is “at large” when the remittitur is made the judgment of the sentencing court, on the other hand, the defendant “shall not receive credit for any time before entering upon his or her incarceration or other penalty.” Huff v. McLarty , 241 Ga. 442, 445 246 SE2d 302 1978. In Huff v. McLarty , the Supreme Court of Georgia held that, when a defendant remains at liberty but not under bond during the appeal of a probated sentence, the probationary period does not automatically begin to run on the date the remittitur of the appellate court is made the judgment of the trial court. 241 Ga. at 445-446. Rather, the running of the probationary period “must await some act which would cause it to begin.” Id. at 446.
