☢ test - Í

Gross v. State, 312 Ga.App. 362, 718 S.E.2d 581 (November 2, 2011). Revocation of defendant’s probation for methamphetamine possession affirmed; trial court properly found that probation was tolled pursuant to OCGA § 42-8- 36(a)(1) by entry of non est by sheriff’s deputy. Record doesn’t support defendant’s contention that the non est was never filed with the court. Wilson v. State, 292 Ga.App. 540, 664 S.E.2d 890 (July 8, 2008). Disapproved “[t]o the extent [it] recognized OCGA § 42–8–36 as a basis for allowing courts utilizing probation systems established pursuant to OCGA § 42–8–100(g)(1) to toll a probationer's sentence, Sentinel Offender Services, LLC (November 24, 2014), above. 1. Trial court erred by denying defendant’s “motion to terminate his probation,” as “the alleged affidavit upon which the trial court relied lacked proper attestation and oath.” “Although the wording of the factual allegation itself is not problematic, there was no language purporting to be an oath or swearing by the affiant or attestation by the notary, who merely signed above a line stating ‘my commission expires April 26, 2009.’ [fn: We further note that the probation officer testified at the motion hearing that he was not sworn in by the judge. ] ‘In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence. To make a valid affidavit the affiant must swear to it, and the fact of his swearing must be certified by a proper officer.... [T]here must be something done which amounts to the administration of an oath.’(Punctuation omitted.) Anderson v. Hardoman, 286 Ga.App. 499, 500(1) (649 S.E.2d 611) (2007).” Accord, Gross (November 2, 2011), above. 2. Dicta: “we note that the statutory language of OCGA § 42-8-36(a)(1) contains an ambiguity. In one reading, ‘[t]he failure of a probationer to report to his probation supervisor as directed ... shall automatically suspend the running of the probated sentence....’ However, the effective date of this ‘automatic’ suspension is the date that an officer returns a warrant showing non est inventus, not the date of the failure to report. In resolving this ambiguity, i.e., whether the tolling is effective automatically or only upon the return of a warrant, we are guided by the rule that ‘criminal statutes must be strictly construed against the State.’ Bagby v. State, 274 Ga. 222, 224(1) (552 S.E.2d 807) (2001). We therefore follow our prior holdings that the mere issuance of a warrant (as was done here) does not toll the probated sentence, and the automatic tolling is made effective upon the specified return of a warrant (as was not done here),” citing Vincent (December 17, 2004), below; Robson v. State, 226 Ga.App. 209, 210 (485 S.E.2d 822) (1997). Disapproved “[t]o the extent [it] recognized OCGA § 42–8–36 as a basis for allowing courts utilizing probation systems established pursuant to OCGA § 42–8–100(g)(1) to toll a probationer's sentence, Sentinel Offender Services, LLC (November 24, 2014), above. Campbell v. State, 280 Ga.App. 561, 634 S.E.2d 512 (July 14, 2006). Probation officer’s affidavit was insufficient to toll sentence. “In Vincent v. State, [December 17, 2004, below], we held that no magic words or words of art are necessary to meet the requirement that the probationer supervisor’s affidavit state that the probationer has absconded and cannot be found. … However, in this case, the probation supervisor’s affidavit submitted in support of the warrant stated only that Campbell was in arrears in the payment of court ordered restitution, and there was no language in the affidavit to inform the court that Campbell had absconded from a known residence and could not be found. [fn] Thus, in this case, there was neither a warrant that was returned showing that Campbell could not be found nor an affidavit from his probation supervisor stating that Campbell could not be found. The trial court thus erred in tolling Campbell’s probation and sentencing him accordingly.” Vincent v. State, 271 Ga.App. 138, 608 S.E.2d 748 (December 17, 2004). While return of a non est by the sheriff is required for tolling under OCGA § 42-8-36(a)(1) (see Robson v. State , 226 Ga.App. 209, 485 S.E.2d 822 (1997)), subsection (a)(2) provides that “[i]n addition to the provisions of paragraph (1) of this subsection, if the probation supervisor submits an affidavit to the court stating that a probationer has absconded and cannot be found, the running of the probated sentence shall be suspended effective on the date such affidavit is submitted to the court. ” “No magic words or words of art are necessary” in the affidavit; the supervisor was not required to “state in the affidavit that anyone looked for him and could not find him.” “In the affidavit which was part of the arrest warrant application, the probation supervisor stated that Vincent had failed to report to him since September 8, 2000, and that he had changed his place of abode without the permission of the supervisor; the affidavit also listed Vincent’s last known address, which was not his current address. This affidavit set forth the factual averments required by OCGA § 42-8-36(a)(2) as it informed the court that Vincent had absconded from a known residence and that his current residence was unknown.” The affidavit was thus sufficient to toll defendant’s probation. Distinguished in Campbell (July 14, 2006), above. Disapproved “[t]o the extent [it] recognized OCGA § 42–8–36 as a basis for allowing courts utilizing probation systems established pursuant to OCGA § 42–8–100(g)(1) to toll a probationer's sentence, Sentinel Offender Services, LLC (November 24, 2014), above.