Anderson v. Sentinel Offender Servs., LLC.

Decision Date25 March 2016
Docket NumberNo. S15Q1816.,S15Q1816.
Citation784 S.E.2d 791
CourtGeorgia Supreme Court

James A. Yancey Jr., Brunswick, for appellant.

John Wallace Campbell, Frederick Owen Ferrand, Ashley Denise Alfonso, Swift, Currie, McGhee & Hiers, LLP, Atlanta, Gregory Keith Hecht, Joseph William Cloud, Hecht Walker, Stockbridge, for appellee.

John B. Long, Thomas W. Tucker, Tucker Long, P.C., John C. Bell Jr., Bell & Brigham, John Ryd Bush Long, John R. B. Long, P.C., Augusta, Lauren Sudeall Lucas, Georgia State University College of Law, Atlanta, for amicus appellant.


, Justice.

In Sentinel Offender Services, LLC. v. Glover, we concluded that Georgia's private probation statutory framework, see OCGA § 42–8–100 et seq.

, does not allow for the tolling of misdemeanor probationers' sentences. 296 Ga. 315, 329(3)(b), 766 S.E.2d 456 (2014) ("Sentinel I "). As we noted in Sentinel I, however, that case provided no occasion to consider whether such tolling might be permissible as a matter of common law, and, if so, whether this tolling doctrine has been abrogated by legislation. Id. at 330, n. 5, 766 S.E.2d 456. Now, having been asked by the United States District Court for the Southern District of Georgia to address these unanswered questions, we conclude that, as a matter of common law, the mere passage of time does not extinguish an unserved sentence and that the common law principle has not been abrogated by the State-wide Probation Act.1

Richard Lamar Anderson filed a complaint against Sentinel Offender Services, LLC. ("Sentinel"), seeking relief for false arrest, malicious arrest, malicious prosecution, intentional infliction of emotional distress, and false imprisonment stemming from his arrests for violations of his probation, which had been deemed tolled; Sentinel subsequently moved for summary judgment. Initially, this matter was stayed until this Court announced a decision in Sentinel I, but, following our decision in that case, Sentinel took the position that Anderson's misdemeanor probation was properly tolled under Georgia common law. The district court concluded that Anderson's civil action hinges on the question of common-law tolling and certified the following questions to this Court:

1. Is tolling authorized for privately supervised misdemeanor probated sentences under Georgia common law?
2. If so, has the common law rule that allows tolling of misdemeanor probated sentences been abrogated by the State-wide Probation Act?

We answer the first question in the affirmative and the second in the negative.

1. As we noted in Sentinel I, "with respect to a misdemeanor conviction, sentences are fixed at one year and once a sentence has been served, jurisdiction over the defendant ceases." (Emphasis supplied.) 296 Ga. at 329, 766 S.E.2d 456

. Under common law, the actual fulfillment of the terms of a misdemeanor sentence—the "service" of that sentence—dictates the completion of that sentence.

[T]he sentence of the law is ... satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority. The punishment is imprisonment, the period of which is expressed only by the designated length of time. Neither the date of its commencement, nor of its expiration, is fixed by the terms of the sentence.

Dolan's Case, 101 Mass. 219, 222 (1869)

. Applying Dolan's Case in Neal v. State, this Court recognized that " [t]he sentence of a convict to imprisonment for a term expressed only by designating the length of time is to be satisfied only by his actual imprisonment for that length of time’ " and, accordingly, held that it was proper to enforce an unserved six-month sentence, which had been unlawfully suspended, even though that sentence was imposed more than six months after it was pronounced. 104 Ga. 509, 519(2), 30 S.E. 858 (1898). The principle announced in Neal —that the mere passage of time does not extinguish a sentence—has been applied to felony sentences, see, e.g., Dixon v. Beaty, 188 Ga. 689, 4 S.E.2d 633 (1939)

,2 and, of significance here, to misdemeanor sentences. See Scott v. Griffin, 170 Ga. 368, 369(1)(a), 153 S.E. 25 (1930) (defendant's misdemeanor sentences "not affected by reason of the fact that the length of time for which [defendant] was sentenced has expired, where it appears that he has not actually served such sentences"); Conley v. Pope, 161 Ga. 462, 462–463(4), 131 S.E. 168 (1925) ("[T]he judge properly refused to grant to [the defendant] the writ of habeas corpus sued out against the sheriff. [Cit.] This is true, although the subsequent arrest of the defendant was after the expiration of 12 months from the date of the [12–month] sentence."); Norman v. Rehberg, 12 Ga.App. 698, 702, 78 S.E. 256 (1913) ("[C]ertainly [defendant] could not claim the expiration of a sentence under which he had not served a single day, merely because the period of time which had elapsed was longer than the sentence originally imposed."); Avery v. State, 22 Ga.App. 746, 97 S.E. 204 (1918) (no error in the enforcement of a 12–month sentence though it was imposed more than 12 months from the date of its pronouncement). See also Crosby v. Courson, 181 Ga. 475(5), 182 S.E. 590 (1935) ; Short v. Dowling, 138 Ga. 834, 76 S.E. 359 (1912) ; Daniel v. Persons, 137 Ga. 826, 74 S.E. 260 (1912) ; O'Dwyer v. Kelly, 133 Ga. 824, 67 S.E. 106 (1910).

While many of these decisions involve unserved misdemeanor sentences that were, at the time, unlawfully suspended, this principle is not exclusive to that scenario. See, e.g., Etheridge v. Poston, 176 Ga. 388(2), 168 S.E. 25 (1933)

(25–day sentence, the service of which was postponed, was not extinguished by the mere passage of time and the defendant was not entitled to be discharged from his sentence where he had not served any portion of it). Likewise, though the common law principle originated with unserved terms of imprisonment, it was similarly applied to probated sentences, once such sentences became lawful in 1913; this is so because "one thus serving a sentence on probation is fulfilling his sentence as effectually as if confined in jail or on the chain gang." Roper v. Mallard, 193 Ga. 684, 684(2), 19 S.E.2d 525 (1942) In Shamblin v. Penn, 148 Ga. 592, 97 S.E. 520 (1918), the defendant was convicted of two misdemeanors and sentenced to concurrent 8–month sentences; the defendant was placed on probation but fled the jurisdiction a month later. The defendant was apprehended approximately a year later and ordered to serve the balance of his sentence on a chain gang. This Court held that the trial court had the authority to revoke the defendant's probation and impose the original sentence—notwithstanding the fact that this sentence was imposed "after the expiration of more than eight months from the date of the sentences"—because the defendant "had not at that time served the sentences imposed." Id. at 592, 97 S.E. 520. See also Roberts v. Lowry, 160 Ga. 494, 128 S.E. 746 (1925) (defendant not entitled to be released on the sentence's original expiration date where she failed to comply with the terms of her probation and had not yet served the balance of her original sentence). The United States Supreme Court, also relying on Dolan's Case, has reached a similar conclusion, though with respect to a fugitive parolee convicted of a felony. See Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923) ("Mere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence. Escape from prison interrupts service, and the time elapsing between escape and retaking will not be taken into account or allowed as a part of the term.").

Though none of the foregoing decisions specifically refer to the concept of "tolling," that principle is clearly at work. See Black's Law Dictionary 1716 (10th ed.2014) (defining "toll" as "to stop the running of; to abate"). Under common law, a misdemeanor sentence—even one to be served on probation—is not extinguished by the mere passage of time, and any unserved term of that sentence may be enforced beyond the expiration of that original sentence; this principle, in effect, tolls the expiration of the sentence and concomitantly extends the jurisdiction of the sentencing court.3 See OCGA § 42–8–102(f)(1)

("The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of his or her probated sentence." (Emphasis added.)).4 Therefore, we conclude that tolling existed at common law and answer the first certified question in the affirmative.

2. "The common-law rule is still of force and effect in this State, except where it has been changed by express statutory enactment or by necessary implication." Robeson v. Intl. Indem. Co., 248 Ga. 306, 307(1), 282 S.E.2d 896 (1981)

. Probation is a creature of statute, and, as noted above, in 1913 the General Assembly empowered courts in this state to impose such a sentence for certain felony and misdemeanor offenses. See Ga. L. 1913, p. 112. The 1913 act, however, neither referenced tolling nor expressly preempted existing common law regarding the treatment of unserved sentences; such a conclusion is bolstered by this Court's decisions in Shamblin and Roberts, supra, both of which applied the common law principle of tolling to probation well after the enactment of the 1913 act.

The General Assembly overhauled probation in 1956 with the "State-wide Probation Act," see Ga. L. 1956, p. 27; this legislation, though much more comprehensive, was equally silent on the issue of tolling until it was amended in 1958. In that year, the General Assembly amended the act to add the following language:

The failure of a probationer to report to his probation officer as directed, or upon a return of non est inventus, or other return to a warrant for the violation of the terms and conditions of probation, that the probationer cannot be found in the county that shall

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