How Far Can a Georgia Court Go in Setting Probation Conditions?

It is common practice for Georgia courts to sentence a defendant to probation, either in addition to or in lieu of jail time. Probation is not a free ride, of course. A trial court has broad discretion to set the terms and conditions of probation. If the defendant violates any one of those conditions, they could face probation revocation, which in turn can mean going to jail.

Court of Appeals Strikes “Overbroad” Restrictions in Sex Offender Case

At the same time, any probation conditions imposed on a defendant must be reasonably specific and related to the defendant’s offense. Georgia appellate courts have struck down probation conditions that are overly broad or could be interpreted to include restrictions that bear no relation to the underlying goals of the sentence.

For example, the Georgia Court of Appeals recently issued a decision, Bryan v. State, striking down several probation conditions imposed by a trial judge on a man convicted of a sex offense. The defendant in this case communicated with a 15-year-old girl on Facebook. Their communication included a number of “explicit conversation[s]” about engaging in sexual activity. Eventually, the defendant went to the girl’s house and she got into his car. They drove to a nearby property.

The girl’s father, however, got suspicious and tracked the couple down. The father told the daughter to get out of the defendant’s car. The father then called the police. Prosecutors subsequently charged the defendant with “enticing a child for indecent purposes.” A jury found the defendant guilty.

The Court of Appeals rejected the defendant’s challenge to the sufficiency of the evidence supporting his conviction. But the appellate court did agree the defendant was entitled to re-sentencing, because some of the probation conditions imposed by the trial court were unconstitutional:

• The trial court barred the defendant from having any direct or indirect contact with any child under the age of 18, including his own children. The Court of Appeals said that was “so overbroad” as to effectively bar the defendant from any place where a minor might be present, such as a store or restaurant.
• The trial court barred the plaintiff from creating or possessing any “digital imagery of any minor.” Again, the Court of Appeals found that overbroad.
• The trial court barred the defendant from dating or marrying anyone who has children under the age of 17, except with written permission of the defendant’s probation officer. The Court of Appeals again said that was too broad, especially since it did not account for a potential relationship where the defendant had no contact with the hypothetical child.
• The trial court barred the defendant from visiting “any place” where “sexually stimulating material” was available. The Court of Appeals rejected this, saying it would effectively bar the plaintiff from entering a library or even using a computer in a public place, even for non-sexual purposes.

Contact Hawkins Spizman Trial Lawyers Today

Even persons convicted of a serious crime and currently serving a term of probation have certain basic rights that cannot be infringed. If you need legal advice or representation from a qualified Atlanta probation revocation lawyer, call Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.

Source:

efast.gaappeals.us/download?filingId=33769b67-a734-4ba4-aafc-885ea742aa7d