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
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
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
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
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.”
6
Additionally, while not reflected in its written order, the trial court
also ruled during the April 4 hearing that, “based upon the
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
the 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, 371 Ga. App. at 38. 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
7
termination provisions of OCGA § 17-10-1 (a) (1) (B) were not
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 39-40 (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
8
date, and 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
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) (citation 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 42 (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
9
the 60-day window prescribed in the statute”; (2) the statute does
not “in any other manner 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. (citing Sanchez v.
Walker County Dept. of Family and 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 required 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
10
terminated as a 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 if such order.” Id. at 43 (c)
(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.” Id. 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 when it denied Clark’s
11
motion to terminate probation” in this case, the Court of Appeals
affirmed the trial court’s ruling. Id. at 44.
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 [OCGA § 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 [OCGA §
35-3-37], the Department of Community Supervision
13
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 [OCGA § 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) (emphasis supplied).
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
14
Court of Appeals relied on the following rule of statutory
construction to conclude that OCGA § 17-10-1 (a) (1) (B) is directory:
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 v. Walker County Dept. of Family and Children Svcs., 237
Ga. 406, 410 (229 SE2d 66) (1976) (emphasis supplied). See also
Clark, 371 Ga. App. at 42 (b) (holding that a failure by the DCS to
provide notice within the 60-day window “will result in no injury or
prejudice to the substantial rights of interested persons”) (citing
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
15
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
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). 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, ___ Ga. ___, ___ (2) (___ SE2d
16
___) (Case No. S24A1386, decided on January 28, 2025) (citation
omitted). But, even under Sanchez, the statute is mandatory here
because Clark’s substantial rights may be affected. In circumstances
where DCS notifies the 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. 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
17
happens if DCS does not comply with the statute. To that end, Clark
argues on appeal that, because the notice 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.” 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 the “the only sensible remedy . . . in the
absence of a timely hearing [is that] a qualifying petitioner’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), 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. 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 the
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
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)
(“Because the Court of Appeals’s ultimate judgment affirming
Martinez-Arias’s convictions was correct, we affirm.”); Nordahl v.
State, 306 Ga. 15, 27 (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