In the Supreme Court of Georgia



                                                           Decided: June 20, 2016


                      S16A0419. HAYWARD v. DANFORTH.


       HINES, Presiding Justice.

       This Court granted Dante Hayward’s application for a certificate of

probable cause to appeal the denial of his petition for a writ of habeas corpus,

posing the single question of whether the habeas court erred in finding that the

trial court’s revocation of Hayward’s parole was not a violation of the doctrine

of separation of powers. For the reasons that follow, we reverse.

       On March 27, 2007, Hayward pled guilty to drug charges in two cases in

the Superior Court of Screven County, and received an aggregate sentence of

twenty-five years, with eight years to serve in prison, and seventeen years on

probation. Hayward was released on parole on February 19, 2009.1 On July 1,

2010, the State filed a petition to revoke Hayward’s probation based on



       1
         Although no order of the Board of Pardons and Paroles appears in the record, the habeas
court specifically found that on “February 19, 2009, [Hayward] was released by the State Board of
Pardons and Paroles,” and the Warden concedes this to be the case in his brief to this Court.
allegations that on June 24, 2010, he was arrested and charged with three new

criminal offenses. On July 26, 2010, after a hearing, the trial court revoked the

balance of Hayward’s aggregate sentence, calculating that the remaining time

on his aggregate sentence was twenty years, three months, and eight days, which

the court ordered Hayward to serve in the state penal system.

       On July 19, 2013, Hayward filed a petition for a writ of habeas corpus in

Telfair County asserting that in revoking the remaining portion of his original

sentence while he was in the legal custody of the Board of Pardons and Paroles,

the trial court violated the Georgia Constitution’s provision regarding the

separation of powers. See Ga. Const. of 1983, Art. I, Sec. II, Par. III.2 And, this

is correct.

       The Constitution vests the Parole Board with executive powers, including

the power to parole convicted prisoners. Ga. Const. of 1983, Art. IV, Sec. II,

Par. II (a).3 See Humphrey v. State, 297 Ga. 349, 350-351 (773 SE2d 760)

       2
           Ga. Const. of 1983, Art. I, Sec. II, Par. III, reads:

The legislative, judicial, and executive powers shall forever remain separate and distinct; and no
person discharging the duties of one shall at the same time exercise the functions of either of the
others except as herein provided.
       3
           Ga. Const. of 1983, Art. IV, Sec. II, Par. II (a) reads:


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(2015); Terry v. Hamrick, 284 Ga. 24, 25 (2) (663 SE2d 256) (2008). A judicial

attempt to control parole conditions “violates the constitutional provision

regarding the separation of powers.” Terry, supra. See also Humphrey, supra,

holding that a trial court cannot, in a criminal sentence, purport to limit the

power of the Board to grant parole in a manner not authorized by statute.

Hayward had been granted parole by the Board and was in its legal custody until

the expiration of his sentence, or until pardoned. OCGA § 42-9-42 (d) (1).4

Thus, the habeas court erred in ruling that Hayward was not in the Board’s legal

custody, and thus further erred in finding no violation of the separation of

powers provision of the Georgia Constitution.

        Regarding the seventeen-year portion of Hayward’s sentence that the trial

court had originally specified to be served on probation, the habeas court noted

that OCGA § 17-10-1 (a) (1) provides that the trial court may revoke probation

Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be
vested with the power of executive clemency, including the powers to grant reprieves, pardons, and
paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a
sentence for any offense against the state after conviction.
        4
            OCGA § 42-9-42 (d) (1) reads:

Any person who is paroled shall be released on such terms and conditions as the board shall
prescribe. The board shall diligently see that no peonage is allowed in the guise of parole relationship
or supervision. The parolee shall remain in the legal custody of the board until the expiration of the
maximum term specified in his or her sentence or until he or she is pardoned by the board.

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“even before the probationary period has begun.”5 However, pretermitting any

constitutional issue, OCGA § 17-10-1 (a) (4) specifically sets forth that “[n]o

revocation of any part of a probated sentence shall be effective while a

defendant is in the legal custody of the State Board of Pardons and Paroles.”6

Accordingly, the habeas court’s denial of Hayward’s petition for relief must be

reversed.

       Judgment reversed. All the Justices concur.




       5
           OCGA § 17-10-1 (a) (1) reads:

Except in cases in which life imprisonment, life without parole, or the death penalty may be
imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after
a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a
specific number of months or years which shall be within the minimum and maximum sentences
prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power
and authority to suspend or probate all or any part of the entire sentence under such rules and
regulations as the judge deems proper, including service of a probated sentence in the sentencing
options system, as provided by Article 9 of Chapter 8 of Title 42, and including the authority to
revoke the suspension or probation when the defendant has violated any of the rules and regulations
prescribed by the court, even before the probationary period has begun, subject to the conditions set
out in this subsection; provided, however, that such action shall be subject to the provisions of Code
Sections 17-10-6.1 and 17-10-6.2.
       6
           OCGA § 17-10-1 (a) (4) reads:

In cases of imprisonment followed by probation, the sentence shall specifically provide that the
period of probation shall not begin until the defendant has completed service of the confinement
portion of the sentence. No revocation of any part of a probated sentence shall be effective while a
defendant is in the legal custody of the State Board of Pardons and Paroles.

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