Lead Opinion
Johnson was indicted, convicted and sentenced on January 7, 1969, on four counts of forging a fictitious name to documents with intent to defraud. See Code Ann. § 26-3914. With regard to punishment for the respective counts, Johnson received sentences of 7, 2, 2, and 5 years to be served consecutively. Johnson filed a motion for new trial which was amended. This new trial motion as amended was overruled on March 26, 1969. No appeal was taken.
Subsequently Johnson attacked his conviction collaterally by a habeas corpus proceeding in which he made several contentions including one that the sentence was illegal. The Supreme Court of Georgia upheld this contention as to Count 1 stating: "The sentence of 7 years exceeds the maximum provided by statute and is illegal. This will not result in the prisoner’s discharge under this sentence, but will require that he be returned to the court where he was sentenced in order that a legal sentence may bе imposed upon him.” Johnson v. Smith,
Pursuant to such direction, the issue of punishment for Count 1 was resubmitted to a jury on August 12, 1971. The jury set punishment at two years with a recommendation of misdemeanor punishment. The trial cоurt declined to accept the recommendation and sentenced the defendant to two years on Count 1 computed from January 7, 1969, with entitlement thereon for any time served in jail prior to January 7, 1969. The present appeal was taken from the resentencing proceeding.
The issue is clearly limited to the question of punishment. The sentence was not only within the range prescribed by statute (not less than two years nor more than five years) but was set by the jury at the statutory minimum, that being two years.
Although the jury mаde a recommendation for punishment as a misdemeanor, the trial court in the exercise of its discretion granted by our statute declined to accept such recommendation. A provision authorizing juries to recommend misdemeanor punishment for certain felonies was first enacted in 1895 (Ga. L. 1895, p. 63). As is stated in Harris v. State of Ga.,
Accordingly in the instance of the present appeal the trial judge exercised a legal discretion declining the recommendation and his action in that respect was final.
We find no error.
Judgment affirmed.
Lead Opinion
On Motion for Rehearing.
Acting without counsel appellant has now filed a belated brief which this court has undertaken to treat as being in the nature of a motion for rehearing so that his contentions may receive full consideration. It should be noted a competеnt attorney’s services were offered to him at each stage of the proceedings. These included the original trial of Janu
From the Supreme Court report it аppears there was no review of the adverse ruling on the new trial motion because defendant was at that time an escapee. Thus by his own action he prevented his counsel from taking an appeal wherein some of the points raised in the instant appeal would have been passed on. See Gravitt v. State,
The appointed attorney in the instant appeal filed a written motion (R., p. 59) certifying he had read the transcript and record and concluded he could not find "any arguable errors” in the re-sentencing trial and that if any occurred, they "must be considered harmless since the minimum sentence was imposed.” After the trial court grаnted the attorney’s withdrawal request on March 1, 1972, this appeal was taken by appellant in person. Our original opinion written after our review of the record and transcript of thе trial had led us to the same conclusion as appointed counsel.
Prior to enactment of the statute entitled "Criminal Procedure—Pre-Sentence Hearing in Felony Cases” (Ga. L.
Appellant alleges a number of alleged errors to have occurred in the original trial of January 7, 1969, but this court cannot legally consider these as wе are limited under our bifurcated procedure to the re-sentencing trial of August 12, 1971. The Supreme Court in Dudley v. State,
Aрpellant argues that the trial court here erred in charging the jury that it was to consider the imposition of sentence under the provisions of Code Ann. §26-3914 which provided for punishment "for not less than twо years nor more than five years” when he should have charged that under Section 26-1702 of the new Criminal Code of Georgia the same offense carries a penalty of "not less than оne nor more than five years.” This contention is without merit as the offenses committed by him and the original trial occurred prior to July 1, 1969, the effective date of the new Criminal Code. The originаl indictment contained four
Appellant enumerates as error that he was never given a preliminary hearing. This is apparently based on the holding by the United States Supreme Court in Coleman v. Alabama,
It should also be noted that sinсe the rendition of Coleman v. Alabama, supra, the Supreme Court of Georgia ruled in Smith v. Brown,
Our court in Shields v. State,
Defendant’s principal complaint is that he received four sentences because of the multi-count indictment when his crime consisted of only one transaction. He argues there was only one account opened with W. T. Grant Co. so that each signature of the fictitious name to contracts was in effect only an "add-on” to the original account. In Patterson v. Caldwell,
Rehearing denied.