55 S.E.2d 875 | Ga. Ct. App. | 1949
1. Under the record of this case the sentences ran consecutively and not concurrently.
2. One serving a sentence on probation is not entitled to "good time" allowance under the provisions of Code (Ann. Supp.) § 77-380.
On May 17, 1949, a petition was filed in Gordon Superior Court by Warren Akin, Solicitor-General of the Cherokee Circuit, to revoke the probationary sentence imposed upon the defendant in cases numbers 2 and 3, based on the contention *310 that the sentences in cases numbers 2 and 3 did not expire until 36 months from September 3, 1946, and that the defendant should be required to serve from May 17, 1949, until September 3, 1949, within the confines of said penal institutions.
The defendant responded to the effect that said sentences had been fully served and extinguished prior to the issuance of the rule on May 23, 1949, wherein the judge presiding, on hearing on the petition to revoke the probationary sentence imposed on the defendant, ruled that the defendant should be required to serve the remainder of the sentences within the confines of the said penal institutions, in accordance with sentences imposed in cases numbers 2 and 3.
The defendant excepted to this ruling, and brings the case here by bill of exceptions contending that such revocation of the probationary sentence was an incorrect ruling, in that there was no probationary sentence remaining in either of said cases upon which any valid judgment revoking said sentence could be based. 1. The defendant bases his contentions for a reversal of this case first upon the contention that the sentence in case number 2 and the sentence in case number 3 ran concurrently and not consecutively. From the entire record it is evident that this contention arose over the conflict in the dates of the sentences in cases numbers 2 and 3. The sentence in case number 2 is dated September 3, 1946. The sentence in case number 3 is dated August 3, 1946. The terms of the Superior Court in Gordon County are the fourth Mondays in February, May, August 3, 1946, is a typographical error. This is borne out further by the response of the defendant to the petition of the solicitor-general to revoke the probationary sentence of the defendant. In that response the defendant alleges that he began the service of the sentence in case number 2 on September 3, 1946, and, following the expiration of that sentence, entered upon the service of the sentence in case number 3. Since the August term of the Superior Court of Gordon County did not open until the fourth Monday in *311 August, 1946, it is clear that the contention of the defendant, to the effect that the provision in the sentence in case number 2 that the service of the sentence in case number 3 should begin at the expiration of the sentence in case number 2 is mere surplusage and should be disregarded, is without merit. Therefore, the two sentences should be considered as running consecutively and not concurrently.
2. The only remaining contention of the defendant as to why the judgment of the court should be reversed is that the defendant, even though serving his sentence outside the confines of the penitentiary and on probation, should be granted four days' credit in each month of the sentence for good behavior, or good conduct as if he were serving the sentence in a penal institution. This contention of the defendant has been decided adversely to him in Green v. Adams,
The court did not err in its judgment revoking the probationary sentence of the defendant for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Worrill, J., concur.Townsend, J., disqualified.