CourtListener 10680525

Testo completo

321 Ga. 35
FINAL COPY

S24G0855. CLARK v. THE STATE.

LAGRUA, Justice.

We granted certiorari in this case to determine whether the

notice requirement articulated in OCGA § 17-10-1 (a) (1) (B)1 is

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1 This statute provides in relevant part:

When a defendant with no prior felony conviction is
convicted of felony offenses or is charged with felony offenses . . . ,
and the court imposes a sentence of probation or not more than 12
months of imprisonment followed by a term of probation, the court
shall include a behavioral incentive date in its sentencing order
that does not exceed three years from the date such sentence is
imposed. Within 60 days of the expiration of such incentive date,
if the defendant has paid all restitution owed; not had his or her
probation revoked in the immediately preceding 24 months, or
when the court includes a behavioral incentive date less than two
years from the date a sentence was imposed, not had his or her
probation revoked during such period; and not been arrested for
anything other than a nonserious traffic offense as defined in Code
Section 35-3-37, the Department of Community Supervision shall
notify the prosecuting attorney and the court of such facts. The
Department of Community Supervision shall provide the court
with an order to terminate such defendant’s probation which the
court shall execute unless the court or the prosecuting attorney
requests a hearing on such matter within 30 days of the receipt of
such order. The court shall set the matter for a hearing as soon as
possible but not more than 90 days after receiving the order to
terminate. The court shall take whatever action it determines
would be for the best interest of justice and the welfare of society.
OCGA § 17-10-1 (a) (1) (B) (i).
mandatory, and if so, what remedy exists when the Department of

Community Supervision (“DCS”) fails to provide notice in

compliance with this statute. For the reasons that follow, we

conclude that, although the Court of Appeals erred in determining

that the notice requirement in OCGA § 17-10-1 (a) (1) (B) is directory

rather than mandatory, the Court of Appeals correctly concluded

that, even when DCS fails to comply with this notice requirement,

termination of the defendant’s sentence is not automatic, and the

trial court maintains the discretion to decide whether to terminate

the defendant’s probation. Therefore, we affirm.

1. Pertinent Facts and Procedural History

On May 18, 2017, Marvante Clark was indicted by a Henry

County grand jury for burglary, theft by receiving stolen property,

two counts of violation of the Georgia Controlled Substances Act,

OCGA § 16-13-20 et seq., obstruction of an officer, and possession of

marijuana, less than an ounce. On February 12, 2018, Clark entered

a guilty plea to all counts except one count of violation of the Georgia

Controlled Substances Act, which was nolle prossed by the trial

2
court. The trial court sentenced Clark as a first offender to a total of

ten years, with one year to be served in confinement and the

remainder to be served on probation.

On January 25, 2023, the State requested, and the trial court

issued, a warrant for Clark’s arrest, alleging that Clark violated his

probation on January 7, 2023, by committing a new offense of theft

by receiving stolen property. Clark was arrested shortly thereafter,

and in March 2023, Clark filed a motion to terminate his probation,

contending that his “probation should have terminated as a matter

of law” on February 12, 2021, under the retroactive application of

OCGA § 17-10-1 (a) (1) (B).2

In support of Clark’s motion, he asserted that his February

2018 sentencing order, which imposed “no more than twelve months

of imprisonment followed by probation,” did not include a behavioral

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2 When the trial court sentenced Clark as a first offender on February

12, 2018, the early termination provisions of OCGA § 17-10-1 (a) (1) (B) (i) were
not yet in effect. However, the statute was amended to include those provisions
in May 2021 and given retroactive effect. See Ga. L. 2021, p. 223, § 1. See also
OCGA § 17-10-1 (a) (1) (B) (ii) (providing that division (a) (1) (B) (i) of the
statute “is intended to be retroactive”).
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incentive date, and pursuant to OCGA § 17-10-1 (a) (1) (B) (ii), where

a behavioral incentive date has not been included in an original

sentencing order, the “behavioral incentive date shall be three years

from the date such sentence was imposed.” OCGA § 17-10-1 (a) (1)

(B) (ii). Clark further argued that, under OCGA § 17-10-1 (a) (1) (B)

(i), if — within 60 days of the expiration of the behavioral incentive

date — the defendant has (1) paid all restitution owed; (2) not had

his or her probation revoked in the immediately preceding 24

months; and (3) not been arrested for anything other than a

nonserious traffic offense, DCS is required by the statute to “provide

the Court with an order to terminate probation.” Clark claimed that,

as of February 12, 2021 — three years from the date he was

sentenced — he “did not owe restitution, did not have his probation

revoked in the immediately preceding 24 months, and did not have

any new arrests,” but DCS did not provide the trial court with notice

of Clark’s compliance and a proposed3 order to terminate his

failed to provide the requisite notice to the trial court, his probation

should have “automatically terminated” under OCGA § 17-10-1 (a)

(1) (B) (i).

The trial court heard Clark’s motion on April 4, 2023.

Following the hearing, the trial court issued a written order on April

28, 2023. In the trial court’s April 28 order, the trial court confirmed

that “no behavioral incentive date [was] included in [Clark’s]

sentencing order” and that OCGA § 17-10-1 (a) (1) (B) (ii) provides

that “a behavioral incentive date is retroactively applied to

situations such as this,” which date “shall not exceed three years

from the date the sentence is imposed.” As to Clark’s argument that,

as of February 12, 2021, he had “met all three factors” provided in

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by DCS to the trial court in this context would be a “proposed” order unless
and until it is executed and entered by the trial court. See OCGA § 17-10-1 (a)
(1) (B) (i) (“[DCS] shall provide the court with an order to terminate such
defendant’s probation which the court shall execute unless the court or the
prosecuting attorney requests a hearing on such matter . . . .” (emphasis
supplied)); OCGA § 42-8-37 (d) (2) (“When the court is presented with such
order, it shall execute the order to terminate unless the court or the prosecuting
attorney requests a hearing on such matter . . . .” (emphasis supplied)).

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OCGA § 17-10-1 (a) (1) (B) (i) and so “his probation should have

terminated as a matter of law,” the trial court explained that, “even

if a defendant meets all three statutory factors to be eligible for a

termination of his probation, the statute provides additional

procedural requirements for the defendant’s probation to

terminate.”

Relevant here, the trial court found that “the statute gives an

opportunity for the State to request a hearing in the matter of the

defendant’s termination within 30 days of the receipt of a [proposed]

order to terminate the defendant’s probation.” See OCGA § 17-10-1

(a) (1) (B) (i). The trial court also found that the State did not have

“an opportunity to request a hearing in the matter” because DCS

never provided the trial court with a proposed order to terminate

Clark’s probation. See id. The trial court thus held that, after

“interpreting the statute as a whole,” Clark’s probation “did not

terminate as a matter of law on his behavioral incentive date.”

Additionally, while not reflected in its written order, the trial court

also ruled during the April 4 hearing that, “based upon the

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circumstances of this case,” terminating Clark’s probation would not

be “in the best interest of justice and the welfare of society.” OCGA

§ 17-10-1 (a) (1) (B) (i). For these reasons, the trial court denied

Clark’s motion.

Clark timely appealed the denial of his motion to the Court of

Appeals, contending that

the trial court erred in denying his motion to terminate
probation where DCS failed to present an order to
terminate his probation following the retroactive
application of the behavioral incentive date under OCGA
§ 17-10-1 (a) (1) (B). Stated differently, Clark asserts that
[ ] DCS was required to notify the State and the trial court
of Clark’s successful completion of three years’ probation
and that, in the absence of such notice, his probation
terminated as a matter of law.

Clark v. State, 371 Ga. App. 37, 38 (899 SE2d 479) (2024). On March

12, 2024, the Court of Appeals issued a decision affirming the trial

court. Id. at 37.

The Court of Appeals first addressed the retroactivity of OCGA

§ 17-10-1 (a) (1) (B) and noted that, “at the time the trial court

sentenced Clark as a first offender on February 12, 2018, the early

termination provisions of OCGA § 17-10-1 (a) (1) (B) were not

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available to him.” Clark, 371 Ga. App. at 39 (a) (citing Mays v. State,

345 Ga. App. 562, 564-565 (814 SE2d 418) (2018)). However, “the

most recent amendment, effective May 3, 2021, gave the statute

retroactive effect.” Id. (citing Ga. L. 2021, p. 223, § 1). See also OCGA

§ 17-10-1 (a) (1) (B) (ii) (providing that the statute “is intended to be

retroactive”). The Court of Appeals thus concluded that the

provisions of OCGA § 17-10-1 (a) (1) (B) as amended “are now

generally available to Clark.” Clark, 371 Ga. App. at 40 (a)

(emphasis in original).

Turning to the applicability of OCGA § 17-10-1 (a) (1) (B) in

Clark’s case, the Court of Appeals noted that, when a defendant has

met the conditions specified in the statute — i.e., paid all restitution

owed, not had his probation revoked in the immediately preceding

24 months, and not been arrested for anything other than a

nonserious traffic offense — the statute provides that DCS “shall

notify the prosecuting attorney and the court of such facts” within

60 days of the expiration of the defendant’s behavioral incentive

date, and DCS “shall provide the court with an order to terminate

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such defendant’s probation which the court shall execute unless the

court or the prosecuting attorney requests a hearing on such matter

within 30 days.” Clark, 371 Ga. App. at 40 (b) (quoting OCGA § 17-

10-1 (a) (1) (B) (i)) (emphasis in original). The Court of Appeals then

explained that “the manner in which Clark may benefit” from this

statute “initially turns upon the use of the word ‘shall’” because this

term can be construed either as a “mandatory directive” or as

“merely directory” — which would be the proper construction when

it was “not accompanied by any negative words restraining the doing

of the thing afterward.” Id. at 41 (b) (citations and punctuation

omitted; emphasis in original).

The Court of Appeals concluded that, as used in OCGA § 17-

10-1 (a) (1) (B), the term “shall” is meant to be “directory rather than

mandatory.” Clark, 371 Ga. App. at 41 (b). The Court of Appeals

reached this conclusion based on the following determinations: (1)

the statute “does not contain any negative words which would

prevent DCS from sending notice of a probationer’s status outside

the 60-day window prescribed in the statute”; (2) the statute does

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not “in any other manner expressly declare that a designated result

will follow noncompliance or that the agency will cease to have

authority to take specified action after 60 days”; (3) “even assuming

a lack of performance by DCS, i.e., that it did not provide the

prescribed notice within the 60-day window, probation is viewed

generally as a matter of judicial grace since there is no substantial

right to receive a probated sentence”; and (4) “a failure by DCS to

provide notice within the 60-day window will result in no injury or

prejudice to the substantial rights of interested persons.” Id. at 42

(b) (citation and punctuation omitted; citing Sanchez v. Walker

County Dept. of Family & Children Svcs., 237 Ga. 406, 410 (229

SE2d 66) (1976)).

The Court of Appeals acknowledged that, in this case, DCS “did

not provide notice, at this time or at any other time, to the State and

the trial court of the status of Clark’s probation as directed by OCGA

§ 17-10-1 (a) (1) (B) (i).” Clark, 371 Ga. App. at 42 (b). But the Court

of Appeals disagreed with Clark’s contention that, based upon DCS’s

failure to provide notice, “his probation stands terminated as a

10
matter of law.” Agreeing with the trial court’s analysis, the Court of

Appeals observed that “DCS’s notice to the State and the trial court

during the 60-day window merely triggers a procedure that, in part,

requires DCS to submit an order terminating probation,” which the

trial court “shall execute unless the court or the prosecuting attorney

requests a hearing on such matter within 30 days of the receipt of

such order.” Id. at 43 (c) (citation and punctuation omitted; emphasis

in original).

To that end, the Court of Appeals explained that OCGA § 17-

10-1 (a) (1) (B) (i) “grants the trial court the overarching discretion

to ‘take whatever action it determines would be for the best interest

of justice and the welfare of society’ once notice and an order of

termination have been presented by DCS, regardless of whether the

State requests a hearing.” Clark, 371 Ga. App. at 43 (c). And the

Court of Appeals determined that, based upon this clear language,

“termination of probation is not automatic even if DCS complied

with its initial duty to provide notice to the State and the trial court.”

Id. Concluding that “the trial court correctly applied these principles

11
when it denied Clark’s motion to terminate probation” in this case,

the Court of Appeals affirmed the trial court’s ruling. Id. at 44 (c).

We granted Clark’s petition for certiorari and asked the parties

to address whether the Court of Appeals erred in concluding that

the notice requirement of OCGA § 17-10-1 (a) (1) (B) is directory, as

opposed to mandatory, and if the statute is mandatory, what (if

anything) is the remedy for DCS’s failure to satisfy that

requirement.

2. Analysis

(a) On appeal, Clark argues that the term “shall,” as used in

OCGA § 17-10-1 (a) (1) (B), is mandatory, and the Court of Appeals

erred in concluding otherwise. We agree.

In statutory interpretation cases such as this, it is
well settled that a statute draws its meaning from its text.
When interpreting a statute, we must give the text its
plain and ordinary meaning, view it in the context in
which it appears, and read it in its most natural and
reasonable way. For context, we may look to other
provisions of the same statute, the structure and history
of the whole statute, and the other law — constitutional,
statutory, and common law alike — that forms the legal
background of the statutory provision in question. When

12
we construe such statutory authority on appeal, our
review is de novo.

State v. Coleman, 306 Ga. 529, 530 (832 SE2d 389) (2019) (citations

and punctuation omitted). Moreover, we assume “‘that the General

Assembly meant what it said and said what it meant when it comes

to the meaning of statutes.’” Stubbs v. Hall, 308 Ga. 354, 363 (4) (840

SE2d 407) (2020) (citation omitted).

With these principles in mind, we turn to the statutory text in

question, OCGA § 17-10-1 (a) (1) (B). This statute provides:

(i) When a defendant with no prior felony conviction
is convicted of felony offenses or is charged with felony
offenses and is sentenced pursuant to subsection (a) or (c)
of Code Section 16-13-2 or Article 3 of Chapter 8 of Title
42, and the court imposes a sentence of probation or not
more than 12 months of imprisonment followed by a term
of probation, the court shall include a behavioral
incentive date in its sentencing order that does not exceed
three years from the date such sentence is imposed.
Within 60 days of the expiration of such incentive date, if
the defendant has paid all restitution owed; not had his
or her probation revoked in the immediately preceding 24
months, or when the court includes a behavioral incentive
date less than two years from the date a sentence was
imposed, not had his or her probation revoked during
such period; and not been arrested for anything other
than a nonserious traffic offense as defined in Code
Section 35-3-37, the Department of Community

13
Supervision shall notify the prosecuting attorney and the
court of such facts. The Department of Community
Supervision shall provide the court with an order to
terminate such defendant’s probation which the court
shall execute unless the court or the prosecuting attorney
requests a hearing on such matter within 30 days of the
receipt of such order. The court shall set the matter for a
hearing as soon as possible but not more than 90 days
after receiving the order to terminate. The court shall
take whatever action it determines would be for the best
interest of justice and the welfare of society.
(ii) This subparagraph is intended to be retroactive
and shall be applied to any case in which a person with
no prior felony conviction was convicted of felony offenses
or was charged with felony offenses and was sentenced
pursuant to subsection (a) or (c) of Code Section 16-13-2
or Article 3 of Chapter 8 of Title 42, and the court imposed
a sentence of probation or a sentence of not more than 12
months of imprisonment followed by a term of probation.
A behavioral incentive date shall as a matter of law be
included in the sentencing order, but in a case where it
was not, the behavioral incentive date shall be three years
from the date such sentence was imposed.

OCGA § 17-10-1 (a) (1) (B) (i) and (ii).

At issue here is whether the term “shall” — as used throughout

the pertinent provisions of the statute — demonstrates that these

procedures are meant to be mandatory or are merely directory. The

Court of Appeals relied on the following rule of statutory

construction to conclude that OCGA § 17-10-1 (a) (1) (B) is directory:

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Language contained in a statute which commands the
doing of a thing within a certain time, when not
accompanied by any negative words restraining the doing
of the thing afterward, will generally be construed as
merely directory and not as a limitation of authority, and
this is especially so where no injury appeared to have
resulted from the fact that the thing was done after the
time limited by the plain wording of the Act. . . . A
statutory provision is generally regarded as directory
where a failure of performance will result in no injury or
prejudice to the substantial rights of interested persons,
and as mandatory where such injury or prejudice will
result.

Sanchez, 237 Ga. at 410 (citations and punctuation omitted;

emphasis supplied). See also Clark, 371 Ga. App. at 42 (b) (holding

that a failure by DCS to provide notice within the 60-day window

“‘will result in no injury or prejudice to the substantial rights of

interested persons’”) (quoting Sanchez, 237 Ga. at 410).

We disagree with the Court of Appeals that the statute is

merely directory. First, the term “shall” is generally construed as

mandatory unless there is a contextual reason to think it is merely

permissive. See Bell v. Hargrove, 313 Ga. 30, 33-34 (2) (867 SE2d

101) (2021). See also Carr v. State, 303 Ga. 853, 856-857 (2), 865 (5)

(a) n.15 (815 SE2d 903) (2018) (“Although the word ‘shall’ is

15
generally construed as a mandatory directive, this Court has

explained that it need not always be construed in that fashion, if the

context in which it is used indicates a permissive instruction.”)

(citation and punctuation omitted). There is no such contextual

reason here; to the contrary, the context suggests that “shall” is

mandatory. Among other things, the statute prescribes hard

deadlines for both DCS and the trial court to carry out their tasks.

See OCGA § 17-10-1 (a) (1) (B).

Second, the Court of Appeals erred in determining that DCS’s

failure to comply with the notice requirement of OCGA § 17-10-1 (a)

(1) (B) in this context results in “no injury or prejudice to the

substantial rights of interested persons,” like Clark. Clark, 371 Ga.

App. at 42 (b) (citation and punctuation omitted). The test the Court

of Appeals applied from Sanchez, 237 Ga. at 410, is somewhat out of

step with our more recent precedent. See Nelson v. Strickland, 320

Ga. 733, 735 (2) (911 SE2d 665) (2025). But, even under Sanchez,

the statute is mandatory here because Clark’s substantial rights

may be affected. In circumstances where DCS notifies the

16
prosecuting attorney and the trial court of a defendant’s compliance

with the terms of OCGA § 17-10-1 (a) (1) (B) (i) — i.e., that

restitution has been paid, probation has not been revoked in the

immediately preceding 24 months, and there have been no arrests

for anything other than nonserious traffic offenses — such notice is

of benefit to that defendant as it could potentially result in the

termination of his or her probation. And, without such notification

from DCS, the trial court may not otherwise review the terms of this

defendant’s probation, which could result in prejudice to the

defendant’s “substantial rights.” Sanchez, 237 Ga. at 410 (citation

and punctuation omitted). We therefore conclude that the notice

requirement imposed by OCGA § 17-10-1 (a) (1) (B) on DCS is

mandatory.

(b) Although we have concluded that OCGA § 17-10-1 (a) (1) (B)

is mandatory, our analysis does not end there — because

determining that the statutory provision is mandatory does not

answer what happens if DCS does not comply with the statute. To

that end, Clark argues on appeal that, because the notice

17
requirement of OCGA § 17-10-1 (a) (1) (B) is mandatory, DCS’s

failure to comply with this mandatory language results in the

automatic termination of Clark’s probation. In support of this

argument, Clark asserts that the statute “creates a system in which

there is a presumption that probation will be terminated early when

the behavioral incentive date is reached as long as the enumerated

conditions have been met,” and in such circumstances, DCS “‘shall

provide the court with an order to terminate,’” which “‘the court shall

execute[ ]’ unless the prosecution or the court intervene to request a

hearing on the matter within 30 days.” See OCGA § 17-10-1 (a) (1)

(B) (i). According to Clark, if DCS had provided a proposed order to

the trial court in this case but a hearing had not been requested or

scheduled within 30 days, the terms of the statute “would clearly

require termination.” On this basis, Clark contends that “[t]he only

sensible remedy . . . in the absence of a timely hearing [is that] a

qualifying probationer’s probation must be terminated as a matter

of law.”

18
We disagree. Reading OCGA § 17-10-1 (a) (1) (B) “in its most

natural and reasonable way,” Stubbs, 308 Ga. at 363 (4) (citation

and punctuation omitted), we recognize that the statute provides

that DCS “shall” — i.e., is required to — notify the prosecuting

attorney and the trial court when a defendant has complied with and

met the conditions of OCGA § 17-10-1 (a) (1) (B) (i). However, the

statute does not provide that, if DCS fails to provide such notice, the

trial court “shall” then execute an order terminating the defendant’s

probation. OCGA § 17-10-1 (a) (1) (B) (i).

As explained by the Court of Appeals, “DCS’s notice to the

State and the trial court during the 60-day window merely triggers

a procedure that, in part, requires DCS to submit an order

terminating probation” to the trial court. Clark, 371 Ga. App. at 43

(c). But, even in instances where DCS properly provides notice and

a proposed order terminating probation to the trial court, the statute

provides that the trial court or the prosecuting attorney may still

request “a hearing on such matter,” and following such hearing,

“[t]he court shall take whatever action it determines would be for

19
the best interest of justice and the welfare of society.” OCGA § 17-

10-1 (a) (1) (B) (i). In other words, the trial court maintains the

discretion to decide whether to terminate a defendant’s probation in

this context — termination is not automatic. See id. In the same

way, when DCS fails to submit a proposed order terminating

probation to the trial court in order to trigger this statutory

procedure, automatic termination of a defendant’s probation is not

the remedy for any such failure on DCS’s part. See id.

As it stands, nothing in the text of OCGA § 17-10-1 or the

remaining provisions of Chapter 10 of Title 17 — the chapter

governing sentences and punishment — “provides a remedy, let

alone an express remedy,” Stubbs, 308 Ga. at 365 (4), for DCS’s

failure to notify the prosecuting attorney and the trial court of a

defendant’s compliance with the provisions necessary to have his or

her probation terminated.4 See OCGA § 17-10-1 (a) (1) (B) (i). And

—————————————————————
4 We note that, in instances where DCS has not provided notice in
compliance with OCGA § 17-10-1 (a) (1) (B), a defendant could file a mandamus
action against DCS to initiate the process. See OCGA § 9-6-20 et seq.
Additionally, a defendant always has the right to move for early termination
of his or her probation. See OCGA § 42-8-37 (b).
20
the content of the statute does not reflect that the General Assembly

meant for a defendant to be automatically released from probation

as a result of DCS’s noncompliance with the notice requirement. See

id. What the statute does reflect is that the parties are permitted to

be heard in these matters and that the General Assembly vested the

trial court with the absolute discretion to make determinations that

are in “the best interest of justice and the welfare of society.” Id.

We therefore hold that DCS’s failure to provide notice under

OCGA § 17-10-1 (a) (1) (B) does not result in the automatic

termination of a defendant’s probated sentence, and we affirm the

judgment of the Court of Appeals, albeit for a different reason. See

Martinez-Arias v. State, 313 Ga. 276, 293 (4) (869 SE2d 501) (2022)

(“[B]ecause the Court of Appeals’s ultimate judgment affirming

Martinez-Arias’s convictions was correct, we affirm.”); Nordahl v.

State, 306 Ga. 15, 27 (4) (829 SE2d 99) (2019) (affirming the

judgment of the Court of Appeals under the “right for any reason”

doctrine).

Judgment affirmed. All the Justices concur.

21
Decided February 18, 2025.

Certiorari to the Court of Appeals of Georgia — 371 Ga. App.

37.

Amara R. Montgomery, Daniel Wells, for appellant.

Darius Pattillo, District Attorney, Sharon L. Hopkins, Assistant

District Attorney, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 18, 2025

S24G0855. CLARK v. THE STATE.

LAGRUA, Justice.

We granted certiorari in this case to determine whether the

notice requirement articulated in OCGA § 17-10-1 (a) (1) (B)1 is

—————————————————————
1 This statute provides in relevant part:

When a defendant with no prior felony conviction is convicted of
felony offenses or is charged with felony offenses . . . , and the court
imposes a sentence of probation or not more than 12 months of
imprisonment followed by a term of probation, the court shall
include a behavioral incentive date in its sentencing order that
does not exceed three years from the date such sentence is
imposed. Within 60 days of the expiration of such incentive date,
if the defendant has paid all restitution owed; not had his or her
probation revoked in the immediately preceding 24 months, or
when the court includes a behavioral incentive date less than two
years from the date a sentence was imposed, not had his or her
probation revoked during such period; and not been arrested for
anything other than a nonserious traffic offense as defined
in [OCGA § 35-3-7], the Department of Community Supervision
shall notify the prosecuting attorney and the court of such facts.
The Department of Community Supervision shall provide the
court with an order to terminate such defendant’s probation which
the court shall execute unless the court or the prosecuting attorney
requests a hearing on such matter within 30 days of the receipt of
such order. The court shall set the matter for a hearing as soon as
mandatory, and if so, what remedy exists when the Department of

Community Supervision (“DCS”) fails to provide notice in

compliance with this statute. For the reasons that follow, we

conclude that, although the Court of Appeals erred in determining

that the notice requirement in OCGA § 17-10-1 (a) (1) (B) is directory

rather than mandatory, the Court of Appeals correctly concluded

that, even when DCS fails to comply with this notice requirement,

termination of the defendant’s sentence is not automatic, and the

trial court maintains the discretion to decide whether to terminate

the defendant’s probation. Therefore, we affirm.

1. Pertinent Facts and Procedural History

On May 18, 2017, Marvante Clark was indicted by a Henry

County grand jury for burglary, theft by receiving stolen property,

two counts of violation of the Georgia Controlled Substances Act,

OCGA § 16-13-20, et seq., obstruction of an officer, and possession

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possible but not more than 90 days after receiving the order to
terminate. The court shall take whatever action it determines
would be for the best interest of justice and the welfare of society.
OCGA § 17-10-1 (a) (1) (B) (i).
2
of marijuana, less than an ounce. On February 12, 2018, Clark

entered a guilty plea to all counts except one count of violation of the

Georgia Controlled Substances Act, which was nolle prossed by the

trial court. The trial court sentenced Clark as a first offender to a

total of ten years, with one year to be served in confinement and the

remainder to be served on probation.

On January 25, 2023, the State requested, and the trial court

issued, a warrant for Clark’s arrest, alleging that Clark violated his

probation on January 7, 2023, by committing a new offense of theft

by receiving stolen property. Clark was arrested shortly thereafter,

and in March 2023, Clark filed a motion to terminate his probation,

contending that his “probation should have terminated as a matter

of law” on February 12, 2021, under the retroactive application of

OCGA § 17-10-1 (a) (1) (B).2

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2 When the trial court sentenced Clark as a first offender on February

12, 2018, the early termination provisions of OCGA § 17-10-1 (a) (1) (B) (i) were
not yet in effect. However, the statute was amended to include those provisions
in May 2021 and given retroactive effect. See Ga. L. 2021, p. 223, § 1. See also
OCGA § 17-10-1 (a) (1) (B) (ii) (providing that subparagraph (a) (1) (B) (i) of the
statute “is intended to be retroactive”).
3
In support of Clark’s motion, he asserted that his February

2018 sentencing order, which imposed “no more than twelve months

of imprisonment followed by probation,” did not include a behavioral

incentive date, and pursuant to OCGA § 17-10-1 (a) (1) (B) (ii), where

a behavioral incentive date has not been included in an original

sentencing order, the “behavioral incentive date shall be three years

from the date such sentence was imposed.” OCGA § 17-10-1 (a) (1)

(B) (ii). Clark further argued that, under OCGA § 17-10-1 (a) (1) (B)

(i), if—within 60 days of the expiration of the behavioral incentive

date—the defendant has (1) paid all restitution owed; (2) not had his

or her probation revoked in the immediately preceding 24 months;

and (3) not been arrested for anything other than a nonserious

traffic offense, DCS is required by the statute to “provide the Court

with an order to terminate probation.” Clark claimed that, as of

February 12, 2021—three years from the date he was sentenced—

he “did not owe restitution, did not have his probation revoked in

the immediately preceding 24 months, and did not have any new

arrests,” but DCS did not provide the trial court with notice of

4
Clark’s compliance and a proposed3 order to terminate his probation

as required by law. Clark contended that, because DCS failed to

provide the requisite notice to the trial court, his probation should

have “automatically terminated” under OCGA § 17-10-1 (a) (1) (B)

(i).

The trial court heard Clark’s motion on April 4, 2023.

Following the hearing, the trial court issued a written order on April

28, 2023. In the trial court’s April 28 order, the trial court confirmed

that “no behavioral incentive date was included in [Clark’s]

sentencing order” and that OCGA § 17-10-1 (a) (1) (B) (ii) provides

that “a behavioral incentive date is retroactively applied to

situations such as this,” which date “shall not exceed three years

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3 DCS does not have the authority to issue an order terminating a
defendant’s probation, as such authority lies strictly with the trial court. See
OCGA § 15-1-3. See also OCGA § 42-8-37 (b). Accordingly, any order presented
by DCS to the trial court in this context would be a “proposed” order unless
and until it is executed and entered by the trial court. See OCGA § 17-10-1 (a)
(1) (B) (i) (“[DCS] shall provide the court with an order to terminate such
defendant’s probation which the court shall execute unless the court or the
prosecuting attorney requests a hearing on such matter . . . .” (emphasis
supplied)); OCGA § 42-8-37 (d) (2) (“When the court is presented with such
order, it shall execute the order to terminate unless the court or the prosecuting
attorney requests a hearing on such matter . . . .” (emphasis supplied)).

5
from the date the sentence is imposed.” As to Clark’s argument that,

as of February 12, 2021, he had “met all three factors” provided in

OCGA § 17-10-1 (a) (1) (B) (i) and so “his probation should have