The Georgia Supreme Court held on March 25, 2016 that common law allows for tolling of privately-supervised misdemeanor probation sentences, and that such common law was not abrogated when lawmakers passed the State-Wide Probation Act.

The case was before the state Supreme Court to answer two certified questions posed by a federal district court in a lawsuit brought by Richard L. Anderson against Sentinel Offender Services, LLC, a company that provides for-profit probation services. Anderson filed suit “seeking relief for false arrest, malicious arrest, malicious prosecution, intentional infliction of emotional distress, and false arrest stemming from his arrests for violation of probation, which had been tolled.”

As previously reported in PLN, the Georgia Supreme Court held in Sentinel Offender Services v. Glover, 296 Ga. 315, 766 S.E.2d 456 (Ga. 2014) that, “with respect to a misdemeanor conviction, sentences are fixed at one year, and once a sentence has been served, jurisdiction over the defendant ceases.” [See: PLN, July 2015, p.40].

With the outcome of Anderson’s civil rights action hinging on the question of common law tolling, the federal district court first asked: Is tolling authorized for privately-supervised misdemeanor probated sentences? The Georgia Supreme Court answered that question in the affirmative.

In doing so, the Court cited precedent dating to 1898, which held 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.” Thus, “the mere passage of time does not extinguish a sentence,” as a sentence of the law is “satisfied only by the actual suffering of the imprisonment imposed.”

The district court’s second question was “has the common law rule that allows tolling of misdemeanor probated sentences been abrogated by the State-Wide Probation Act?” That question was answered in the negative.

Common law tolling is still in effect, “except where it has been changed by express statutory enactment or by necessary implication.” Probation was created in Georgia in 1913 and was subject to the common law tolling principle. The State-Wide Probation Act was overhauled in 1956 and amended in 1958. The Georgia General Assembly was silent on tolling in 1956, but did not abrogate it with the 1958 amendment. In fact, it stated a probationer who absconds “shall automatically suspend the running of the [probated] sentence.”

Construing common law tolling as abrogated “would render misdemeanor probation unenforceable in some situations, as it would allow defendants to avoid their sentences by simply avoiding apprehension until the expiration of their original sentence,” the Supreme Court held. As the Court did not believe the General Assembly meant to enact an ineffective misdemeanor probation scheme, the answer to the second certified question had to be no. See: Anderson v. Sentinel Offender Services, 298 Ga. 854, 784 S.E.2d 791 (Ga. 2016), reconsideration denied. 

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