Tenney v. StateTenney v. State
Appellant, Larry William Tenney, appeals pro se his sentence and conviction of the offenses of possession of a firearm by a convicted felon, two counts of theft by conversion, and two counts of theft by taking. See generally
1. The record reflects that appellant entered a plea of guilty to the offenses for which indicted. Neither at trial nor on appeal does appellant assert that his plea should be withdrawn. As appellant has filed no enumerations of error or brief in his behalf, we have carefully examined the record and find appellant’s guilty pleas to have been knowingly, intelligently, and voluntarily made. See generally
Boykin v. Alabama,
2. Review of the trial record and transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt, from appellant’s knowing, intelligent, and voluntary plea of guilty, that appellant was guilty of the offenses charged.
Jackson v. Virginia,
3. Appellant was sentenced on each of the five counts of the indictment of which he had been found guilty. Count 3 was for theft by conversion of four video cassette tapes, with a value less than $500. Count 4 was for theft by taking of $500. The record reflects that, as to Count 3, appellant was sentenced to confinement for a period of five years to serve consecutively to the sentence imposed under Count 1; *821 and, “[t]hat the above sentence may be served on probation.” As to Count 4, appellant was sentenced to confinement for a period of five years to serve consecutively to the sentence imposed under Count 3; and, “[t]hat the above sentence may be served on probation.” Both sentences contained, inter alia, the following probation condition, “[i]f such probation is revoked, the [c]ourt may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law. . . .” (Emphasis supplied.)
Moreover, assuming arguendo, appellant had been eligible for sentencing as a repeat offender, under the provisions of
In this instance, the trial judge expressly sentenced appellant to five years confinement for both Counts 3 and 4. This period of confinement exceeded the sentence authorized by law for these two particular offenses.
Although, as a general rule, “[t]he judge imposing the sentence is granted power and authority to suspend or probate the sentence under such rules and regulations as he deems proper” (
In this instance, as to Counts 3 and 4, the trial court has imposed probated confinement for a period of five years when the maximum period of confinement which could be imposed was for a term of one year. We cannot say this error was harmless, particularly as both sentences run consecutively and one of the conditions of the probation was, that in the event probation was revoked, the trial court could order the execution of the sentence originally imposed, which in this case would be confinement for five years as to both Counts 3 and 4.
Accordingly, the period of probation authorized for these two counts exceeds that authorized by statute and must be corrected. Thus, the sentence imposed as to Counts 3 and 4, only, is reversed, and the matter is remanded to the trial court for resentencing with direction that the offending portion of the sentence be eliminated.
The record and transcript reveal no other errors prejudicial to the substantive rights of the appellant.
Judgment affirmed, but with direction that the sentence be remanded to the trial court for correction as pointed out in Division 3 above.