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Anderson v. State

The trial court erred in sentencing a defendant with a prior felony conviction to serve 365 in a state detention center for misdemeanor battery.

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Donald Anderson appeals his sentence for misdemeanor battery, contending that the probation sentence imposed upon him, 365 days to serve in a state probation detention center, is unlawful. We agree. We therefore vacate his sentence and remand this case to the trial court for resentencing. Anderson had been convicted previously of aggravated stalking, a felony. OCGA § 16-5-91. He received a five-year sentence, which was probated. His probation was revoked after he was arrested for aggravated assault, and he was ordered to serve the balance of his sentence 4 years, 5 months, and 28 days in prison. At the trial on the aggravated assault charge, Anderson was found guilty of the lesser included offense of battery. The trial court sentenced him to a probated sentence of 365 days, to be served in a State detention center. Anderson’s motion to vacate the sentence was denied, and he appeals.

Anderson’s argument is premised upon two statutes: OCGA § § 17-10-3 and 42-8-35.4. OCGA § 17-10-3, setting forth the possible punishments for misdemeanors, was amended in 2000 to add new subsection a 2. It provides, in pertinent part: a Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows: . . . 2 By confinement under the jurisdiction of the Board of Corrections in a state probation detention center or diversion center pursuant to Code Sections 42-8-35.4 and 42-8-35.5, for a determinate term of months which shall not exceed a total term of 12 months. OCGA § 42-8-35.4, which was in existence when OCGA § 17-10-3 was amended, provides, in pertinent part:

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