PORTERFIELD v. THE STATE.
52488
Court of Appeals of Georgia
September 13, 1976
139 Ga. App. 553
QUILLIAN, Judge.
SUBMITTED JULY 15, 1976
It seems incredible that such an essentially unfair procedure could exist in a system of justice based on fair play. The issue is not one of impeaching the appraisers’ return, but one of determining the amount of money or property or both to which a widow and/or minor children are entitled for support for one year. It seems most one-sided and arbitrary that an appraisers’ return should be given judicial certification as “prima facie correct” when the appraisers might never have met, made any investigation, heard or examined any evidence, or done anything more than estimate the maximum value of the estate and make such their award. Either the rule prohibiting attack on the appraisers’ return or that making the return prima facie correct or both, should be changed. The members of this court are powerless to do so. I can but hope that those of our highest court will correct the imbalance created in some of their predecessors’ decisions. I concur in the judgment of affirmance.
QUILLIAN, Judge.
The defendant was indicted, tried and convicted for violation of the Georgia Controlled Substances Act. He was sentenced to 10 years, 3 years to be served in confinement, the balance on probation. On appeal to this court his conviction was affirmed. Porterfield v. State, 137 Ga. App. 449 (224 SE2d 94). Afterwards, he filed a motion to modify his sentence. After a hearing, the trial judge entered an order which recited: “... the Court adjudges that since the term of court at which sentence was imposed had expired prior to the filing of this motion, it lacks jurisdiction to modify the sentence; and that this is true irrespective of the fact that the case was appealed and the case affirmed and this motion was made, at the same
In Porter v. Garmony, 148 Ga. 261 (1) (96 SE 426), the Supreme Court held: “Where one accused of a misdemeanor was convicted, and at the term at which the trial took place was sentenced to serve a term in the chain-gang, and the accused carried the case by writ of error to the Court of Appeals, where the judgment of the lower court was affirmed, the trial court was without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the sentence formerly imposed; and where he did pass an order modifying and changing the sentence, such order was void, as the court was without jurisdiction to alter the sentence originally imposed.”
Here the defendant argues that he was forced to choose between appealing and filing a motion to modify; that literally applying the statutory language acts to deprive him of his constitutional rights. We find: 1) the language of the statute is clear and unambiguous; 2) there was no constitutional attack made on the statute; 3) there is nothing to prevent a defendant from both appealing and making a motion to modify the conviction. Georgia courts have long held that while a trial judge loses the inherent right to modify a judgment after the term expires, a motion made during the term serves to extend the power to modify. Ammons v. Bolick, 233 Ga. 324, 325 (210 SE2d 796) and cits.
The trial judge did not err in denying the motion.
Judgment affirmed. Deen, P. J., concurs. Webb, J., concurs specially.
SUBMITTED JULY 15, 1976 — DECIDED SEPTEMBER 13, 1976.
Harry N. Gordon, District Attorney, F. B. Tyler, Jr., Assistant District Attorney, for appellee.
WEBB, Judge, concurring specially.
I concur in the judgment. Where one convicted has reason to believe his sentence is too harsh, he has the right to have such sentence, if it is for five or more years, reviewed by a panel of three superior court judges pursuant to and as provided by