Gardner v. State

Since defendant violated a general condition of probation, rather than a special probation condition, the trial court could not revoke more than two years of defendant's probated sentence.

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In the Superior Court of Fulton County, Gregory Gardner simultaneously pled guilty to two separately indicted VGCSA1 offenses. He received a concurrent sentence of eight years probation on each conviction. Thereafter, the superior court revoked four years probation on each offense, to be served currently, based on Gardner’s violation of a probationary condition. On appeal of these probation revocations, consolidated for purposes of judicial economy, the issue is whether Gardner violated a “special condition” of probation so as to authorize the court’s revocation of four years probation,2 or whether Gardner violated a “general condition” of probation, authorizing the revocation of no more than two years.3 We granted interlocutory appeal in order to consider the definition of a “special condition of probation” as expressly stated in the 2001 amendment to OCGA § 42-8-34.1 a. On the facts that follow, we conclude that Gardner violated a general condition of probation and thus vacate the judgment and remand to the court below for re-sentencing.

On September 22, 2000, Gardner was sentenced concurrently on each of the VGCSA offenses referenced above to eight years probation, with the first six months thereof to be served on intensive probation. Gardner failed to report to his probation officer; he was arrested and brought before the superior court for a probation revocation hearing on February 8, 2001. After hearing from the parties, the court revoked eight years probation, sentencing Gardner to serve six months, with the balance, again, probated upon condition that he enter and successfully complete a “drug court” program, which involves supervision through such program for approximately eighteen months; thereafter, the remaining years of probation would be suspended. This condition of probation was expressly stated in the sentence sheet as follows:

Gardner v. State

Since defendant violated a general condition of probation, rather than a special probation condition, the trial court could not revoke more than two years of defendant's probated sentence.

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