21 S.E.2d 624 | Ga. | 1942
1. Ordinarily a superior court has plenary power over its orders and judgments during the term in which they were rendered, and may amend, correct, or revoke them for the purpose of promoting justice.
2. The power of a superior court in a criminal case to amend a sentence during the same term of the court in which it was imposed, by shortening the period of imprisonment, is not lost by entry of the defendant upon the service of such sentence.
3. Where by an amendment so made during the same term the period of service in the penitentiary, as fixed in a sentence for a reducible felony, is changed to a shorter term in the public-work camp, as for a misdemeanor, the amendment may also provide for service of the misdemeanor sentence, or any remainder thereof, on probation.
4. The jurisdiction of a trial court as to amendment of sentences is not affected by the Code, § 77-313, relating to the authority of the Prison Commission.
5. Under the preceding rulings, the court was not without jurisdiction, during the same term in which the sentences were imposed, to amend them in the respects above indicated; and the judge did not err in sustaining the writ of habeas corpus and in discharging the prisoners in accordance with the sentences as amended.
"Defendant shall serve misdemeanor sentence, to wit: twelve months in the public-work camp, and following that six months in jail, but after serving four and one-half months of said public-work camp sentence, including time in jail prior to, as well as subsequent to, entrance into public-work camp, that he be discharged from his confinement and allowed to serve the remainder of sentences aforesaid outside of the confines of prison, on probation, and subject to his good conduct." It was further ordered as to *298 each defendant that he be forthwith released from custody, and that a copy "of this amendment be . . furnished the Penal Board of Georgia, in order that said prisoner be released from his confinement."
The warden in charge having refused to release the defendants as directed, an application for the writ of habeas corpus was instituted in their behalf. The warden filed a response, alleging that he was holding the defendants under jurisdiction of the State Prison Commission, in virtue of the original sentences imposed in July, 1941. The case was tried on an agreed statement showing the facts above recited. The judge passed an order sustaining the writ, and the warden excepted. (As to substitution of "public-work camp" for "chain-gang," see Ga. L. Ex. Sess. 1937-38, p. 352.)
The offense of cattle-stealing is a reducible felony, and the defendants could originally have been sentenced as for a misdemeanor. Code, § 27-2501; Ga. L. 1939, p. 285, § 2. The sole question presented in this court is whether the court had jurisdiction to amend the sentences after the defendants had begun service thereunder, although the amendments were made during the same term at which the original sentences were imposed, and had the effect of reducing or mitigating the punishment, as fixed thereby. There are numerous decisions to the effect that a trial court is without power to change a sentence after the defendant has been committed thereunder, by increasing the punishment, even during the same term in which the original sentence was passed; and while in some jurisdictions it has been held that the punishment can not even be reduced during the same term, after the defendant has entered upon execution of the original sentence, there is a decided conflict in the authorities on the latter question. The question here is not one as to the power of a court to correct its judgments or minutes so as to make them conform to the truth, such as was involved in Merritt
v. State,
In Emerson v. Boyles,
The decisions holding that there is a lack of jurisdiction in such circumstances are usually based upon the principle that no person shall be subject to be put in jeopardy more than once for the same offense, but would seem to misapply the principle where the punishment is actually ameliorated and the defendant himself is not complaining. There can be no double or second jeopardy in mere reduction of punishment. As to waiver of the defense of former jeopardy, see Hall v. State,
The superior court, as a general rule, has plenary power over its orders and judgments during the term at which they were rendered, and may amend, correct or revoke them for the purpose of promoting justice. "During the term of the court at which a judgment is rendered, it is within the breast of the presiding judge, and may be vacated upon proper cause shown; but after the term has expired, the judgment `is upon the roll' and is not subject to review or revision by the trial court." Sims v.Georgia Railway Electric Co.,
The court not only so changed the sentences as to impose punishment as for a misdemeanor, but ordered that the remainder of each sentence should be served on probation. In United Statesv. Murray,
In this connection, we have been reminded of the Code, § 77-313, providing that "All convicts, whether sentenced for felony or misdemeanor crimes, and all convict camps shall be under the direct supervision of the Prison Commission, which shall provide rules and regulations for the management, discipline, and control of said convicts, and of said convict camps, subject to the approval of the Governor." It is insisted by counsel that, under this section, when the defendants began execution of their sentences they immediately came under the exclusive jurisdiction of the Prison Commission, and for this reason the sentences were not afterwards subject to change or revision by the court. We can not sustain this contention. The function of the Prison Commission under this section is merely to enforce sentences that are lawfully imposed, and the question as to whether a court is acting within its jurisdiction in modifying a sentence is in no wise affected by this section.
The court was not without jurisdiction, during the same term at which the sentences were rendered, to amend them in the respects indicated, and the judge did not err in sustaining the writ and discharging the prisoners in accordance with the sentences as amended.
Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.