☢ test - Í

Johnson v. State, 283 Ga.App. 425, 641 S.E.2d 655 (February 5, 2007). Sentence requiring defendant to serve “five years of probation, conditioned on him first serving 20 to 24 months in a probation detention center” was not an invalid “installment sentence.” “A sentence is served in installments when a defendant is released from prison and then incarcerated again at a later date to continue serving the same sentence, which violates the Fourteenth Amendment. Derrer v. Anthony, 265 Ga. 892, 895-896(4) (463 S.E.2d 690) (1995). In Derrer, for example, the defendant was mistakenly released from prison in 1987 after serving only 12 days of a theft sentence. He was subsequently arrested in 1994 on an outstanding warrant regarding the theft sentence and was returned to prison to serve the rest of it. The court held that ‘a defendant may not be required to serve a sentence of confinement in installments where his premature release was brought about through no fault of his own, and where reincarceration would be inconsistent with fundamental principles of liberty and justice.’ (Citation and punctuation omitted.) Id. at 896. That is not the situation here.” Wilson v. Windsor, 280 Ga. 576, 630 S.E.2d 367 (May 8, 2006). Habeas court properly determined that defendant’s sentence was illegal; trial court had no authority, upon probation revocation, to sentence defendant to a probation detention center for the non-violent misdemeanor offenses of habitual violator, DUI, driving without insurance, and possession of marijuana. “[A] court can confine a probation violator in a probation detention center, but not if his probation is revoked for any of the reasons enumerated in OCGA § 17-10-1(a)(3)(A) [“commission of any felony, a violation of a special condition, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim” which is a danger to the community, or “serious” violation of the rules of “an alternative probation confinement facility”], and only if he was put on probation previously for a forcible misdemeanor or a misdemeanor of a high and aggravated nature. OCGA § 42-8-35.4.” Three justices (Melton, joined by Carley and Hines) dissent, contending that the trial court could sentence defendant to probation detention center upon probation revocation (but not upon original sentencing), under Johnson v. State , 267 Ga. 77, 475 S.E.2d 595 (1996). VV. RECIDIVIST 1. GENERALLY Johnson v. State, 335 Ga.App. 796, 783 S.E.2d 156 (February 24, 2016). Following conviction for possession of a firearm by convicted felon, trial court erred when it “indicated on the record that it believed it was mandatory to sentence Johnson without the possibility of parole” pursuant to OCGA § 17-10-7(c), which instead requires that defendant “serve the maximum time provided in the sentence of the judge … and shall not be eligible for parole until the maximum sentence has been served.” Becker v. State, 335 Ga.App. 808, 783 S.E.2d 166 (February 24, 2016). Following conviction for possession of methamphetamine, trial court erred by sentencing Becker as a recidivist pursuant to OCGA § 17-10-7(a) and (c). Effective July 1, 2012, “OCGA § 17–10–7(b.1) provides that: ‘Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a) ... of Code Section 16–13–30.’” Accord, Johnson v. State , 335 Ga.App. 796, 783 S.E.2d 156 (February 24, 2016). Hobbs v. State, 334 Ga.App. 241, 779 S.E.2d 15 (October 23, 2015). Terroristic threats and related convictions affirmed, but sentence vacated and remanded. Trial court erroneously believed that recidivist sentencing required it to impose the maximum sentence on each offense; rather, OCGA § 17-10-7(a) “specifies felony offenses, and makes no reference to misdemeanor offenses.” Barney v. State, 333 Ga.App. 807, 777 S.E.2d 490 (September 15, 2015). Burglary convictions affirmed, but sentences vacated and remanded for proper recidivist sentencing. “Under OCGA § 17–10–7(a), the trial court was required to impose a twenty year sentence for each burglary count, the longest sentence prescribed in the burglary statute, OCGA § 16–7–1(b). This it did not do, as the trial court sentenced Barney merely to 10 years on Count 1. Accordingly, the trial court did not err in concluding that Barney’s original sentence was void and in amending the sentence to comply with OCGA § 17–10–7(a) and (c). See Hill v. State, 272 Ga.App. 280, 282, 612 S.E.2d 92 (2005) (‘trial court ... did not err in correcting [defendant’s] sentence so that it complies with OCGA § 17–10–7(c)’). We note, however, that although OCGA § 17–10–7(c) ‘prohibits parole, it does not dispense with the trial court’s discretion to probate or suspend part of a sentence under OCGA § 17–10–7(a).’ (Citation and punctuation omitted.) Jefferson [ v. State, 309 Ga.App. 861, 864(2), 711 S.E.2d 412 (2011), overruled on other grounds by Maddox v. State, 322 Ga.App. 811, 815(1), 746 S.E.2d 280 (2013)]. Therefore, to the extent that Barney argues that the trial court erred by failing to exercise its discretion to probate or suspend part of his sentence, if it so chooses, we agree.” Hillman v. Johnson, 297 Ga. 609, 774 S.E.2d 615 (June 29, 2015). Habeas court erred in part by denying Hillman relief.