☢ test - Í

Clark v. State, 287 Ga.App. 176, 651 S.E.2d 106 (August 9, 2007). Sentenced to serve 24 months for family violence battery, 12 months in confinement and the rest on probation, defendant was erroneously released early, served two months on probation, then committed a new offense. The trial court calculated that defendant had 20 months remaining on his sentence with credit for the time served and the two months on probation, and revoked that balance. Defendant appeals, contending he is entitled to credit for the entire 12 months on confinement. Held, requiring defendant to serve the balance of the sentence after erroneous release did not violate separation of powers. “Citing Johns v. State, 160 Ga.App. 535, 536 (287 S.E.2d 617) (1981), Clark alleges that when the Sheriff ‘made a decision’ to release him, his sentence became fully served, and that ‘[a]ny attempt by a court to impose its will over the Executive Department as to what constitutes service of a period of confinement would be a nullity and constitute an exercise of power granted exclusively to the Executive.’ (Citations omitted.) Id. The record is devoid, however, of any evidence showing that the Sheriff ‘made a decision’ to release Clark or that he was released as a result of a good-time allowance. On the contrary, the record indicates that Clark’s release resulted from an ‘administrative error,’ and the trial court explicitly found that a ‘good-time [allowance] is not an issue here.’ Given that there is no evidence of any Executive Department finding that Clark had fully served his sentence in confinement based on a good-time allowance or otherwise, the trial court did not violate the separation of powers doctrine by concluding that he had not done so. See Derrer v. Anthony, 265 Ga. 892, 896(4) (463 S.E.2d 690) (1995) (‘[a] convicted person will not be excused from serving his sentence merely because someone in a ministerial capacity makes a mistake with respect to its execution.’ ) (citation omitted); compare Hutchins v. State, 243 Ga.App. 261, 262(2) (533 S.E.2d 107) (2000) (finding that a judge may not impose probation on any time by which confinement is shortened due to good-time allowance.).” Stewart v. State, 285 Ga.App. 760, 647 S.E.2d 411 (June 8, 2007). Trial court erred when it ordered that defendant’s incarceration under his sentence be served at the Gwinnett County Prison Work Camp. “The State concedes, and we agree, that the trial court cannot require the Department of Corrections to place a convicted felon in a particular facility. See OCGA § 42-5-51(b) & (d). However, ‘language in the sentence purporting to designate a place of confinement is mere surplusage’ and is not a defect that will render the sentence void. (Punctuation omitted.) Eubanks v. State, 229 Ga.App. 667 (494 S.E.2d 564) (1997). The trial court properly denied Stewart’s motion for new trial on this ground.” Cronan v. State, 282 Ga.App. 408, 638 S.E.2d 827 (November 15, 2006). “On March 1, 1999, the superior court received the remittitur from this Court affirming Cronan’s convictions. Neither the State, nor the superior court took immediate action to place Cronan in custody to serve his prison sentence. Over six years later, the State moved to enforce Cronan’s sentence and requested that he be remanded into the custody of the Department of Corrections.” Held, trial court properly did so despite the delay and despite the fact that defendant continued to report to pre-trial supervision in the meantime. “The seminal case governing our resolution of these issues is Huff v. McClarty, 241 Ga. 442 (246 S.E.2d 302) (1978), in which the Supreme Court held: ‘ A sentence is not voided because of the state’s delay in attempting to enforce it. This appears to be a prevelant rule. Of course, there is some point at which a state’s unreasonable delay will be deemed to prevent later enforcement of the sentence. Where the state makes no move to initiate the sentence, the defendant must offer himself up if he wishes the term to begin to run. Moreover, an offer which is premature because the sentence may not yet be put into effect, is ineffective and may not be deemed continuing. The defendant’s offer must come at a time when the sentence may lawfully be put into effect.’ (Citations omitted.) Id. at 446. Because the defendant in Huff presented himself to the county solicitor and the trial judge who sentenced him and asked if he could pay his fine in installments, the Supreme Court ruled that he had complied with the requirement ‘to offer himself up.’ Id. As a result, the defendant’s 12 month period of probation began to run at that time. Because the probationary period expired long before the Supreme Court issued its opinion, it held that the defendant’s sentence was complete. Id. The Supreme Court did not analyze whether there had been an unreasonable delay by the State in enforcing the defendant’s sentence, perhaps because its holding that the defendant’s sentence was complete rendered this issue moot.” Court here finds the reference in Huff to “unreasonable delay” to be dicta, and concludes that “unreasonable delay by the State will preclude it from later enforcing the sentence only if the defendant has offered to begin serving his sentence,” which Cronan did not do merely by reporting to pre-trial supervision as opposed to serving his prison sentence. Smashey v. State, 282 Ga.App. 293, 638 S.E.2d 431 (November 6, 2006). “ The amount of credit a convict should be given for time served “is to be computed by the convict’s pre-sentence custodian, and the duty to award the credit for time served prior to trial is upon the Department of Corrections. OCGA § 17-10-12.” Cutter v. State, 275 Ga.App. 888, 890(2) (622 S.E.2d 96) (2005) (citation and punctuation omitted). The trial court is not involved in this determination. Id. If aggrieved by the calculations in awarding credit, [Smashey] should have sought relief from the Department of Corrections. Dissatisfaction with that relief would not be part of his direct appeal from his original