27 S.E.2d 240 | Ga. Ct. App. | 1943
1. In a criminal case the trial court or the judge thereof is without authority, after the expiration of the term at which a sentence is imposed, to modify or change a sentence which is complete.
2. A suspended sentence has the effect of probating the defendant.
"It appearing that the sentence to serve twelve months on the public works in the above-stated case [number 2350] entered on the 11th day of August, 1942, was to run consecutively with sentence for a like time, imposed in another conviction on an indictment against the same defendant, charging possessing untaxed liquors in the same court and not concurrently, which sentence was in case numbered 2289 and entered on the same date, to wit, August 11, 1942; and it appearing that both said public-works sentences were suspended by the court, and that said defendant was by order of the court required to show cause in the court-house of said Jackson County before the undersigned presiding judge at *18 two o'clock p. m., the 27th day of March, 1943, why said sentences should not now be enforced; on the said hearing it appears from the records of the City Court of Jefferson, said state and county, that said defendant entered a plea of guilty to transporting and possessing liquors in violation of the laws of Georgia as charged in an accusation in said city court, on the 9th day of March, 1943, which accusation charged said criminal acts to have occurred on the 8th day of March, 1943, in Jackson County, Georgia; and it appearing from statement of officers that there was a considerable quantity of liquor involved in said latter case. It further appears, that, according to Dr. Paul Scoggins of Commerce, Georgia, a reputable physician, the said defendant is afflicted with a somewhat advanced case of diabetes and requires insulin treatment, and that the county authorities of said Jackson County are not equipped to supply such treatment: It is ordered and adjudged, that the twelve-months sentence in the above-stated case is now enforced, and that the defendant be carried to the Georgia State Prison authorities at Tattnall Prison at Reidsville, Georgia, to serve said sentence. This the 29th day of March, 1943."
To this order the defendant excepted on two grounds: first, that the term of court during which the sentence of August 11, 1942, was imposed, having expired, the superior court of Jackson County and/or the judge thereof was without authority of law to modify or change the terms of the sentence of August 11, 1942, so as to require the defendant to serve the same at "Tattnall Prison at Reidsville, Georgia," instead of serving the time of the sentence on the public works of Jackson County as specified in the sentence of August 11, 1942; and second, that since seven months and eighteen days of the suspended sentence, — from August 11, 1942, to the date of revocation, March 29, 1943, — had expired, the court was without authority of law to require the defendant to serve twelve months from March 29, 1943, but was authorized only to require him to serve that portion which had not expired, to wit, four months and twelve days.
1. The order of March 29, 1943, apparently dealt with sentence number 2350. We therefore assume, since the two sentences of August 11, 1942, were to run consecutively, that *19
sentence number 2350 was to be served first, with sentence number 2289 to follow. The trial court or the judge thereof is without authority, after the expiration of the term at which a sentence is imposed, to modify or change such sentence. In Porter v.Garmony,
In view of the authorities cited, we are constrained to hold that the court erred in changing the place of service of the sentence in the manner specified. After the expiration of the term of court at which the original sentence is imposed it becomes a question *20 of the authority of the judge, and not a question of reducing the sentence, or equity, or a merciful attitude toward the defendant. The point is that the authority of the judiciary comes to an end in this respect, and the authority and pardoning power of the executive begins, aided by such commission or body as the legislature within the scope of its authority may establish.
2. As we have observed, in dealing with the second question, we assume that in his order of March 29, 1943, the judge was dealing with the sentence to be served first (of the two sentences imposed on August 11, 1942). Under the Code, § 27-2706, a suspended sentence has the effect of probating the defendant, as provided by the Code, § 27-2702. It follows that the defendant should have as a credit on his twelve-months sentence the time from August 11, 1942, until the date his sentence was revoked, March 29, 1943. This court dealt specifically with this question in the case of Wood v. State,
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.