In Davis v. State, 181 Ga. App. 498, 353 SE2d 7 (1987), a trial judge attempted to prevent the sheriff from giving a DUI defendant good time credit on a 12-month jail term with no probation until his $1000 fine was paid. The Judge knew that with no probation there was no way to enforce the payment of the fine. The Georgia Court of Appeals held that OCGA 42-4-7(b)(1) provides that the sheriff, chief jailer, warden, or other designated jail custodian shall award good time allowances based on institutional behavior. The trial court is without jurisdiction to control or influence good time credit for jail sentences. The only exception to this provision is found in OCGA 42-4-7(b)(1)(A)(B) and (C) which excludes 2nd in 5 years DUIs, high and aggravated misdemeanors, and crimes committed against family members.

See also,  Grimes v. State, 237 Ga. App. 654 (1999) (The trial court correctly determined that once sentencing was completed, it lacked authority to determine where the defendant would be housed or when he would be released.) See generally, OCGA §§ 17-10-3; 42-4-7; 42-5-51; England v. Newton, 238 Ga. 534 (233 S.E.2d 787); In re Prisoners Awaiting Transfer, 236 Ga. 516, 517 (2) (224 S.E.2d 905); Eubanks v. State, 229 Ga. App. 667 (494 S.E.2d 564)(holding that once a defendant starts his sentence it may not be increased).

Many judges ignore these rules and issue explicit orders denying good time credit or devise secret codes on sentencing sheets to notify the Sheriff not to issue good time jail credit.  While they may get away with this disregard for express statutory prohibition and binding case precedent, they open themselves up to civil liability for false imprisonment because when they take on the statutory duty of the jail custodian by controlling good time credit under OCGA 42-4-7, these judges step outside of their absolute immunity and into qualified immunity.  See Generally, Buckley v. Fitzsimmons, 509 U.S. 259 (1993)(when a prosecutor “functions as an administrator rather than as an officer of the court” he is entitled only to qualified immunity.)  Qualified Immunity does not protect state actors from violation of clearly established law.

“The test for determining whether a defendant is protected from suit by the doctrine of qualified immunity is the objective reasonableness of the defendant’s conduct as measured by reference to clearly established law. On a motion for summary judgment, if the applicable law was established at the time the defendant acted [and it prohibited the action], the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” (Citations omitted.) Porter v. Massarelli, 303 Ga.App. 91, 93, 692 S.E.2d 722 (2010).

In our course, a tort claim requires more than a breach of a legal duty, it also requires causation and harm which in the context of short jail sentences will always be difficult to prove but almost uncontestable in extended jail sentences. Remember if you do decide to pursue legal damages for false imprisonment, you must file an anti-Litem notice with the appropriate government actors. See, O.C.G.A. § 36-11-1, 36-33-5, 50-21-26.

-Author: George Creal

Georgia DUI Lawyer | DUI Lawyer Atlanta