GOSIER v. STATE (2001)

Jermaine Gosier pleaded guilty to two counts of aggravated assault and was sentenced to serve eleven years on probation on condition, among others, that he serve not less than 270 nor more than 360 days in a Department of Corrections detention center, followed by a minimum of 180 days in a diversion center until his fine and restitution were paid in full.   Gosier does not challenge the trial court's authority to order such limited confinement as a special condition of probation.¹  At the end of the sentencing hearing, however, Gosier asked the court to permit him to remain out on bond pending the availability of a bed at the detention center.   The court replied:  “Not today.   We'll see what the bed opening situation is, and then I'll review it at that time.”   On appeal, Gosier alleges that the trial court lacked the authority to impose confinement after sentencing him to probation.   We disagree.

Gosier's argument misinterprets Pitts v. State² and its progeny.   In Pitts, we held that a trial court cannot impose any period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation.³  Subsequently, in Jones v. State⁴ and Johnson v. State⁵ we held that the trial court could not order, as a condition of probation, that the defendants remain incarcerated until space became available for them in a boot camp.   Here, in contrast, the trial court's ruling that the defendant be held in jail until space became available in the detention center was not included in his conditions of probation.   While this difference may be purely semantic, nevertheless it suffices to distinguish Jones and Johnson from the instant case.   Moreover, in Penaherrera v. State,⁶ we observed:  “The fact that defendant was not transferred to the detention center until 27 or 28 days after sentencing does not invalidate the sentence or violate its terms.   The types of confinement designated in the sentence were within the bounds of the law and did not constitute an abuse of discretion.”   Here, too, we hold that the trial court did not abuse its discretion in declining to release Gosier on bond pending the availability of a bed in the detention center.

Judgment affirmed.

FOOTNOTES

1.   In Penaherrera v. State, 211 Ga.App. 162, 163(1), 438 S.E.2d 661 (1993), this court held that a trial court has the discretion to condition probation upon limited confinement in a detention or diversion center or in the defendant's own home.

2.   206 Ga.App. 635, 426 S.E.2d 257 (1992).

3.   Id. at 637(3), 426 S.E.2d 257.

4.   224 Ga.App. 340, 341(1), 480 S.E.2d 618 (1997).

5.   219 Ga.App. 547, 550(3), 466 S.E.2d 63 (1995), rev'd on other grounds, 267 Ga. 77, 475 S.E.2d 595 (1996).

6.   Supra at 164, 438 S.E.2d 661.

MIKELL, Judge.

BLACKBURN, C.J., and POPE, P.J., concur.