*1 Dealers against these as plaintiffs relieve should the except comply nothing it has done Supply 37-107, 37-112. §§ law. Code Moreover, find the bank is entitled majority the by cited the Yet the cases priority. to be restored its Davis applicable here, if would allow majority, they were bank, of not backwards rights to be subrogated v. Nat. Bank In Cornelia Bank First does. majority as 234) (1930), it was the Quitman, 170 Ga. SE (i.e., bar), at not the creditor Davis the case purchaser bank), entitled to (i.e., subrogation. who was priority equals If his subrogation, Davis obtains which indebtedness $30,000, the amount Johnson’s If the bank obtains reinstatement paid Davis bank. Johnson, it claim priority from can security its deed — must be $234,183.63. That existing indebtedness seem they say mean what majority subrogated to allow bank somewhat anomalous I dissent. to me that to its It’s so anomalous rights. own HUFF v. McLARTY. 33418.
Hall,
Justice.
County,
Sheriff of Clarke
by the
appeal
This is an
court in a habeas
superior
of the
from an order
Georgia,
on the
McLarty
releasing
corpus action
sentence had
the term of his
ground
major
presented concerns the time
expired. The
issue
run.
begins
a
In 1973,
who
McLarty
Eight”
one
"Athens
sit-in
were arrested
office
during
President
the University
McLarty
was convicted of
Georgia.
criminal
trespass,
and was sentenced to
a $500
State,
McLarty
In
and to serve
months on probation.
37)
(1973)
Subsequent to his himself to these having presented officials, McLarty went about his business as a student at the University of at all times available Georgia, was of Athens where City probation his was scheduled to be served. He heard further nothing concerning sentence.
In March, 1975, the trial issued a bench judge warrant for his arrest failure to the fine. His "probation” then "revoked” and he sentenced to serve months in confinement. He was incarcerated on 19,1975, March a filed habeas action on corpus March 1975, and on that day was released after signing his own $1,000. bond for 21,1975, On May a hearing was held on petition. his The habeas court ruled that payment the fine was not a condition precedent to his being allowed to serve his on probation, and that his to run period began 6, 1973, on December when the remittitur came down from this court. Consequently, the 12-month probationary period had ended before the sought to incarcerate in March, 1975, and he was thus entitled to his release.
We with the agree habeas court’s although result we run at a different began the term of find that time. (in brief), He his here. appellant is the
The sheriff office, the solicitor and Athens the head of the (the in three conversations latter judge the trial points, two basic mistaken about were McLarty), First, they this lawsuit. the result of control those points McLarty’s payment taking position in all erred being to his a precedent condition fine was the $500 Second, probation. begin allowed refusing premature erred solicitor and June, 1974 offer in its order fine, court the habeas Considering "Condition as follows: this issue correctly decided written the conditions [among Fine of Pay 'To document, him] requires sentencing 8 or At Condition place . . .’ herein ordered $500.00 document, Defendant is the sentencing elsewhere on the payment the Court intended given notice that precedent. condition [psychiatric] evaluation *3 lawfully required have While . . . the Court Code under condition precedent of a fine as a payment be that the Defendant demands 27-2709, due process a condition is in fact that said condition made aware intent that the trial court’s no record There is precedent. the time of his the Petitioner at was communicated sentencing.” hearing at the habeas find that
We further nothing that there was acknowledged testified and that the required in the document which sentencing date, nothing be therein showed paid by any certain precedent beginning probation. that it was a condition it merely The was "the standard judge testified precedent. to treat fine as a condition policy” the pro- bation testified that it was that has precedent official "the judge’s] years...” been set trial court over the [the lawfully pursued Such a not be where policy may amounts, here, the terms of the sentence varying as criminal offenses shall actually imposed. "Sentences for certain, definite, ambiguity, and free from and where the the benefit of the doubt shall be contrary appears, the Buice v. given Bryan, accused. Ga. [Cits.]” 676) (1956). Cross v. Huff, Accord, 509-510 SE2d the Ga. had right to rely the document, told sentencing been having nothing at contradictory thereof the time sentencing. of Because that document did not make the the payment fine a precedent condition but one merely showed it as several conditions of not a continuing probation, it was condition This precedent. argument demolishes the sheriffs here for failure to the fine the began never to run.
That us to the next brings question, concerning when the did statute begin. governing is which §Ann. "Time from Code 27-2505 entitled sentences "It shall run.” In that statute reads: be the pertinent part duty of sentence for imposition the several judges, the laws, term of specify violation of the penal computed as shall be service under such sentence the is the defendant confined in jail date of provided incarcerated, and has no or or motion otherwise in such cases except pending, new trial Court or Appeals Supreme to the State appealed conviction, in which Court for reversal of event computed from the date the sentence shall be remittitur of made the appellate court is the court in had, is provided conviction defendant is not but is bond incarcerated or in liberty under sheriff convicted:...” As an initial matter, only think we reasonable construction of the term "Supreme Court” statute means the Georgia Court not the Supreme United States Court. proviso, last quoted "provided at liberty not must be bond” construed mean not otherwise liberty give under bond effect to the obvious intent which statutory is that the sentence shall remittitur appellate from the court is *4 court, made judgment for defendants who then still are Those at large. large defendants shall not any receive credit time entering before upon their v. Beaty, Dixon penalty. incarceration or other 188 Ga. (4 633) (1939). Potts, v. 689 Aldredge See also 187 (200 113) (1938). Ga. 290 SE proviso, Under this whether McLarty was on bond or not at time the remittitur
446 in he was not down, it is plain this court went could not time of his sentence and therefore
custody, act which would must await some but immediately begin, The statute does that be? might act cause it to What begin. not say. A the state. not be an act of it need
It is clear
in
delay
because of the state’s
voided
sentence is not
Poston,
447 paid. first be must county they
Because the officials admit that never properly explained instituted his and never its (see requirements 27-2710), terms and himto Code Ann. lawfully required paid and because the fine was not by any right date, certain March, officials had no "probation” alleged 1975 to "revoke” the for his failure to comply App. with its State, terms. See Hinton v. 127 Ga. pursuant His confinement unlawful, the bench warrant was and the habeas correctly held him entitled to his release. months was thus
completed long past. June, 1975, which is now At point during that 12 months the officials had the right formally reporting and to institute his its requirements period, and other for the remainder of the by doing compel compliance and so with its terms They having and conditions. never did so. The now expired, completed McLarty sentence is full release. entitled to his point concerning
One remains fine which is $500 unpaid. sentencing still document enumerated payment eighth of the fine as the condition of Additionally, separate the sentence contained this paragraph, following conditions: "It is pay further ordered the Court that the defendant a fine of $500.00.” paragraph
We think this must be construed as a independent court, further sentence of the months of the 12 confinement/probation. McLarty therefore owes and must the fine. discharging McLarty
The order of the habeas court However, is affirmed. we order that require payment habeas court amend its fine. and remanded with direction. All Affirmed except concur, Hill, J., Justices who concurs in the judgment only, Nichols, J., Marshall, C. Bowles and JJ., who dissent. 28, 1978. 197
Argued April Decided June Stula, for appellant. Ken Head, John W.
Galis, Timmons, Andrews & Timmons, Jr., for appellee. Justice, dissenting.
Bowles, tried and convicted charged, properly written following specific a misdemeanor. signed by judge: imposed *6 the Court and before the Bar of being defendant
"The should of the Court why the sentence no reason showing not be pronounced; considered, adjudged ordered and is, thereupon,
"It be, McLarty Scott the said Lawrence the Court that by (the Clarke to confinement is, sentenced hereby (such the institution Camp) Public Works County the as of Corrections State Board jurisdiction said direct), the may of Corrections Director a term of for labor be confined defendant shall to law. according months, computed defendant the said ordered "It is further there to County, of said jail the common committed to the by proper until demanded in close kept authorities. cause, it further the is examined having
"The court be served on may above sentence ordered not violate the does said defendant probation provided unit said during any of governmental criminal laws behavior; and, further general good and be of following complies defendant that said provided, part the Court as a of imposed by herein special conditions this sentence.
"1 (customary probation requirements). thru 7 of herein ordered. "8. the Fine Pay $500.00 the Court that the defendant by "It further ordered is at the nearest to be evaluated and treated be required Facility. Mental Health Georgia Regional by "It further ordered the court that the defendant is a fine of $500.00. hereby appointed C. Anderson is "Further ordered defendant, provided by Officer of said law. Probation and the defendant is "It is further order of Court hereby amend, advised Court any alter, modify any revoke or conditions of this or probation change probation discharge The probationer shall be subject to arrest violation of any condition herein If such granted. revoked, the Court may order the execution sentence which was originally imposed, thereof, portion the manner provided by law.”
Following conviction, McLarty appealed Supreme sentence to the Court the State Georgia, his conviction was unanimously affirmed.
State, 37). Ga.
Upon notice filing appeal, of that a supersedeas bond $1,000. was set at The defendant has been since that free time until arrested bench under a warrant to begin serving his sentence. affirmance his conviction
Following an Supreme Georgia, additionally Court he filed Court of United States denied. person
He never surrendered his to the sheriff or to officer, until after bench warrant had been issued for his arrest at which time he himself in. turned *7 He then a and brought petition for habeas was corpus again under special approved by released bond the court 20,1975. that on At proceeding March all times he has counsel, been represented by and his counsel was notified both appellate actions of courts. The that majority opinion says after his denied by the United States Supreme Court he himself in "presented” turn to the county solicitor and to His judge. testimony own in respect to each "presentation,” shows an effort only on his to part have the sentence and modified reduced no there is evidence that he offered himself for the purpose of commencing to serve the imposed. sentence Both contracts were made out of court at the law private offices each court officer. The solicitor told him his regard appeals,"... to in any event that out, whenever the time runs his will let him attorney know when is out and he will have to report.” (Emphasis The supplied.) solicitor then him referred to the support any does not judge’s testimony The
trial judge. his probation. to part on defendant’s offer that de- affirmatively officer testified until after the with office his fendant made contact The defendant’s for arrest. issued his bench warrant was no offer of surrender shows in his own behalf testimony get to with merely covers contacts but sentence modified. sentence written construction
Any reasonable a given that he was conclude given to the defendant would a confinement sentence of twelve months’ straight authority by the court "Every imposed fine. $500 immediately be or within such paid this Code shall (Emphasis time as court direct.” sup- reasonable § Code Ann. 27-2901. plied.) him granted permission sentence alternate It on "further serve the sentence straight with the following said defendant provided, complies that conditions the Court as a special imposed by part herein naming therein other requirements this sentence”: during probation period, specific carried out imposed fine of otherwise requirement and the mandate paid. plain the defendant is These words 27-2901 mean that sentence Code Ann. being paid immediately. the fine permissive upon our Irrespective interpretation differences ordinary significance meaning, words having the twelve months’ has neither served any probationary has he served confinement sentence nor bond, under supersedeas When allowed freedom sentence. final to surrender himself abide the required he was duty There is no law required by in the case. judgment him notify him, or arrest though the state otherwise do the state so. permissible agreement present bond is his solemn supersedeas the final of the court. Until he himself abide It so he has not the law. view complied my has done complain he about not the terms of knowing cannot until he himself for the surrenders *8 is no the Constitution purpose. guarantee There statute requires speedy serving nor delay sentence. has been occasioned the convicted party’s and his appeal own choice remain free. The conclusion majority of the that he opinion ready "stood trial, his sentence” is pure After term surmise. appeal, judge has little very authority over the §§ sentence. Code Ann. 27-2502 and 27-2709. Indeed had the judge after sentence a specific issued order releasing him from confinement not be could credited sentence under it not release would count. Potts, 113) (1938); Brown v. Aldredge Ga. 290 SE 3) (1931) Clark, Ga. 524 SE and cits. Ann. Code 27-2505 quoted majority opinion provides sentence shall computed date the remittitur of the court made the appellate had, of the court in which the conviction is provided the liberty is not at under bond but is defendant in county incarcerated or sheriff of convicted. fallacy is that majority holding run "McLarty presented when himself began Out-of-court efforts authorities.” is not compromise modify presenting or his sentence himself an imposed to serve
otherwise. if
Even then of one year began June, 1974, 20,1975, on March completed it was he was and again arrested released on bond at his own request. majority conclusion of the
must now original appears be an apology people to the this state a convicted allowing person to otherwise escape most his responsibility.
I am authorized to state that Chief Justice Nichols and Justice Marshall join in this dissent.
33422. ODOM v. ODOM. Justice.
Bowles, This is an from an order of the Court Superior of Bibb County which awarded the appellee $600 attorney fees.