Elder v. State , 143 Ga. App. 610 ( 1977 )

Quillian, Presiding Judge.

The defendant appeals from the sentences entered upon his pleas of guilty to driving with ability impaired by alcohol (Code Ann. § 68A-902 (Ga. L. 1974, pp. 633, 671)), and driving while his license was suspended or revoked (Code Ann. § 68B-402 (Ga. L. 1975, pp. 1008,1042)). Held:

1. The Supreme Court having found this court and not it to have jurisdiction, we need not consider the purported constitutional attacks on the statutes herein involved.

Submitted September 14, 1977 Decided September 26, 1977 Rehearing denied October 21, 1977 Ben Lancaster, for appellant. Charles Crawford, District Attorney, for appellee.

2. There is no merit in defendant’s contention regarding the trial judge’s failure to exercise discretion and to probate his sentence.

3. Code Ann. § 68B-402 provides, for one not convicted as a habitual offender, a sentence of not less than 2 days nor more than 6 months (plus a fine) for driving while one’s license is suspended or revoked. Hence, the judgment imposing a one year sentence for this offense was error. The judgment in that regard must be reversed for resentencing in compliance with the law.

Judgment affirmed in part; reversed in part.

Shulman and Banke, JJ., concur.