The defendant was indicted on January 3,1980, on two counts: (1) aggravated assault on a peace officer, Detective Robert Lowe, on Seрtember 21, 1979; and (2) simple battery on Detective Robert Lowe on September 21,1979. The first trial resulted in a hung jury.
Defendant was reindicted on four counts. Counts 1 and 2 were the same as before. Count 3 charged obstruction of an officer, in that the defendant obstructed and hindered Detective Robert Lowe from arresting him on September 21,1979. Count 4 charged using abusive or obscene language in the presence of the female employees of the Dаiry Queen on Gray Highway on September 21,1979. At the second trial, the evidence showed that on September 21,1979, the defendant ordered two chili cheese dogs at the drive-in window at the Dairy Queen on Gray Highway, that he returned when he discovered that the cheese had been left off and engaged in аn argument with several female employees, and that he struggled with Detective Lowe as he was being removed from the premises. The second jury acquitted the defendant on Count 1 and found him guilty on Counts 2, 3 and 4 (misdemeanors).
On June 17,1980, the trial court announced sentence: on Count 2, 12 months on probation on condition the defendant enter the Macon Diversion Center; on Counts 3 and 4,12 months on probation to run concurrently with each other but consecutively to the sentence on Count 2, conditioned on a $500 fine and restitution to Detective Lowe of medical bills and lost wages. Before this sentence was reduced to writing and entered, on June 27 the trial court sentenced the defendant to serve 12 months in jail on Count 2 and deleted the $500 fine, with the remaindеr of the sentence to remain as before.
Defendant enumerates error as follows: (a) the trial court erred in overruling his demurrer to Count 4 of the indictment in that the crime of using obscene, vulgar or profane language in the presence of a female or a male under age 14, Codе § 26-2610 (b), is unconstitutionally vague and overbroad, and is based upon sex;
*184 (b) the trial court erred in overruling his demurrer to the indictment attacking the addition of Counts 3 аnd 4 after the first jury was unable to reach a verdict on Counts 1 and 2;
(c) the trial court erred in overruling his plea of double jeopardy, made first in his motion for new trial, based upon his guilty plea in municipal court to the charge of disorderly conduct; and
(d) the trial court erred in increasing his sentence on Count 2 from 12 months on probation to 12 months in jail. We will consider enumeration of error (c) first as it could be dispositive of the case.
1. In support of his dоuble jeopardy plea, defendant urges that his guilty plea in municipal court to the charge of disorderly conduct precluded his being tried in supеrior court, citing
State v. Burroughs,
2. Defendant urges that he cannot be reindicted for additional crimes after a jury is unable to reach a verdict on the original indictment. He urgеs that the trial court erred in overruling his demurrer to Counts 3 and 4 of the second indictment. We agree.
State v. Tate,
Code § 26-506 (b) provides that “If the sevеral crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the proseсution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution — ” The state urges that the addition of Counts 3 and 4 is allowеd by Code § 26-507 (b). The answer to this argument is that whether or not allowed by Code § 26-507 (b), the addition of Counts 3 and 4 is barred by Code § 26-506 (b), quoted above. The defendant is not to be penalized, by the addition of new charges, for the state’s failure to obtain a conviction upon the first trial.
3. Our determination in Division 2 that the convictions on
*185
Counts 3 and 4 cannot stand renders it unneсessary for us to reconsider the constitutional validity of Code § 26-2610 (b) on which Count 4 was based. See
Breaux v. State,
4. The defendant urges that it was error for the trial court to increase his sentence on Count 2 from 12 months on probation to 12 months in jail. A sentence which has been reduced to writing and signed by the judge may not be increased after the defendant has begun to serve that sentence.
Higdon v. Cooper,
An oral declaration as to whát the sentence shall be is not the sentence of the court; the sentеnce signed by the judge is.
Morgan v. Mount,
Here the judge’s oral declaration of a 12 months probated sentence was not reduced to writing and there is no evidence that service of that sentence was commenced. Under these facts, the oral declaration as to what the sentence would be was within the breast of the court and could be increased at any time before it was formally entered by the judge or before service of the sentence was commenced. See
Sherman v. State,
Defendant relies upon North Carolina v. Pearce,
At the resentencing hearing the trial judge stated that after thinking about it, he had concluded that he had made an error and that the probated sentence was not proper in view of the fact that the *186 defendant had been found guilty of simple battery, the victim being a pоlice officer engaged in the performance of his duties. North Carolina v. Pearce has not been extended so as to apply to this сase and we decline to extend it because, as found above, the court was authorized to amend its oral pronouncement and therе is no suggestion of vindictiveness against the defendant for having exercised any legal right; there is only the trial court’s effort to make the punishment fit the crimе of which the jury had found the defendant to be guilty.
Judgment affirmed as to Count 2; reversed as to Counts 3 and 4.
Notes
Nothing stated herein is intended to change the holdings of this court in
State v. Germany,