Higdon v. Cooper , 247 Ga. 746 ( 1981 )

247 Ga. 746 (1981) 279 S.E.2d 451

HIGDON
v.
COOPER.

37538.

Supreme Court of Georgia.

Decided June 30, 1981.

Thomas J. Killeen, for appellant.

Arthur K. Bolton, Attorney General, Michael R. Johnson, Assistant Attorney General, for appellee.

UNDERCOFLER, Justice.

On June 1, 1979, Higdon entered a guilty plea to burglary. Under a mistake that Higdon was a first offender, the trial court sentenced him to two years on probation, said probation conditioned upon successful completion of the "Gateway House" program. Higdon was confined under this sentence. Later it was discovered Higdon was not a first offender and on June 15, 1979, the trial court revoked the two year probated sentence and Higdon was sentenced to five years confinement. The trial court found that, ". . . Higdon acted in conscious deceit and misrepresentation as to his apparent lack of prior convictions in that he not only remained silent as the District Attorney stated that said Higdon had no prior record. . . ."

Higdon's writ of habeas corpus was denied and he is here on appeal. We reverse. The law is clear. Once a defendant begins to serve his sentence it may not be increased. England v. Newton, 238 Ga. 534, 536 (233 SE2d 787) (1977).

Judgment reversed. All the Justices concur, except Jordan, C. J., and Marshall, J., who concur in the judgment only.