Chandler v. State

364 S.E.2d 273, 257 Ga. 775, 1988 Ga. LEXIS 60

• Court: Supreme Court of Georgia
• Decided: February 4, 1988
• Docket: 44990
• Status: Published

Opinions

Smith, Justice.

We granted certiorari in State v. Chandler, 184 Ga. App. 1 (360 SE2d 727) (1987), to determine whether a probationer participating in a “Special Alternative Incarceration” program, having failed to return to a diversion center from which he had been given permission to leave, is subject to prosecution for the felony offense of escape or to the lesser penalty of revocation of his probation. The Court of Appeals held that a probationer would be subject to prosecution for the felony offense of escape. We reverse.

In October of 1985, the appellant, Marvin Chandler, was sentenced to twelve months probation for the misdemeanor of loitering on school property. Subsequently, the appellant’s probation was modified to include a special alternative incarceration program at the Dodge County Correctional Institute. That facility, however, would not accept him since his original sentence was only for twelve months, and as a result, the appellant was ordered to reside at the Athens Diversion Center.

At 11:50 a.m. on April 16, 1986, the appellant signed out of the diversion center to seek employment. Though he was instructed to return by 4:30 p.m., he had not returned by 1:00 a.m. the following day. At that time, he was classified as an escapee from the center. On May 16, 1986, the appellant was arrested and later indicted under the felony escape statute. OCGA § 16-10-52 (a) (3).

The trial judge dismissed the indictment on the ground that it failed to allege the crime of escape. Upon appeal by the district attorney, the Court of Appeals reversed the trial court and held that the appellant’s failure to abide by the diversion center’s regulations made him liable for the felony offense of escape rather than for the mere revocation of his probation.

Under subsection (f) of OCGA § 42-8-35.1, which creates the “Special Alternative Incarceration” program, unsatisfactory performance in the program would subject the probationer to revocation of probation as specified by OCGA § 42-8-38. The alternative to revocation of probation, as provided in OCGA § 42-8-35.1, would be the imposition of the more severe sanctions of OCGA § 16-10-52 (a) (3).

“ ‘ “Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.” ’[Cit.]” Gee v. State, 225 Ga. 669, 676 (171 SE2d 291) (1969). Clearly, this is a case where there is such uncertainty.

Judgment reversed.

All the Justices concur, except Marshall, C. J., Weltner and Hunt, JJ., who dissent, and Bell, J., who concurs in the judgment only.