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Wilson v. State

The trial court erred in ruling that the defendant's probation was properly tolled.

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Charles Wilson appeals the denial of his motion to terminate his probation, contending that the trial court erred in ruling that his probation was properly tolled based on OCGA § 42-8-36 a. Because the alleged affidavit upon which the trial court relied lacked proper attestation and oath, and the State did not comply with any other provision of that Code section, we must reverse. The undisputed record shows that, based on Wilson’s no-contest plea to a charge of interfering with property of a public utility, Wilson was sentenced in May 2005 to 12 months of probation and payment of a fine. In July 2005, Wilson’s probation officer presented an arrest warrant to a state court judge for signature, which warrant purported to contain an affidavit averring that Wilson had absconded and could not be found in the county of his residence. The warrant also included language stating that “THIS SENTENCE IS TOLLED UPON JUDGE’S SIGNATURE,” and was signed by the judge on July 27, 2005. The record contains no return of the warrant. In August 2007, Wilson was arrested and incarcerated for his probation violation. In September 2007, Wilson moved to terminate his probation and sought immediate release, arguing that his probation had not tolled because the warrant did not meet the statutory requirements of OCGA § 42-8-36 a. Following an evidentiary hearing, the state court denied the motion, finding that the affidavit contained in the warrant satisfied the statute. Wilson now appeals.

Wilson contends that the state court erred in ruling that the warrant and affidavit complied with the statutory prerequisites authorizing the tolling of his sentence. Because the warrant lacked a proper affidavit and the tolling statute was not otherwise met, we must agree.

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