Johnston v. State , 1979 Ga. App. LEXIS 2839 ( 1979 )

McMurray, Presiding Judge.

Defendant was charged in two indictments with a total of nine counts of child molestation. The defendant waived his right to jury trial, and the trial court found the defendant guilty as charged qn all counts. A sentence of twenty years in the penitentiary, to serve nine years with the balance on probation, was imposed as to each count, with the sentences to run concurrently with each other.

At trial a court appointed psychiatrist testified that defendant was competent to stand trial, that in his opinion defendant understood the difference between right and wrong, and that defendant in his opinion was not suffering from a delusional compulsion. Defendant presented the testimony of another psychiatrist, who concluded that defendant suffered from a psychiatric illness described as a borderline personality. Defendant’s witness testified that he did not believe the facilities at Reidsville State Prison or Central State Hospital were adequate for the long term treatment of the disorder.

The sole enumeration of error contends that defendant’s ". . . constitutional right to treatment under the Eighth and Fourteenth Amendments to the Constitution of the United States was violated by the sentence imposed which denies him treatment for his mental disorder.” Defendant argues that he should have been sentenced to a facility capable of giving him appropriate treatment and that the failure to do so is cruel and unusual punishment. Held:

Submitted September 24, 1979 — Decided October 10, 1979 — Rehearing denied October 31, 1979. J. Roger Thompson, Frank J. Petrella, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Andrew Weathers, H. Allen Moye, Assistant District Attorneys, for appellee.

Where the sentences imposed are within the statutory limits, as they are here, they are not subject to the attack that they constitute cruel and unusual punishment. Jones v. State, 232 Ga. 771, 776 (7) (208 SE2d 825); Goughf v. State, 232 Ga. 178, 182 (3) (205 SE2d 844); Dixon v. State, 231 Ga. 33, 36 (8) (200 SE2d 138). Furthermore, this court is without jurisdiction to review the sentence. Tucker v. State, 131 Ga. App. 791 (2) (207 SE2d 211); Philmore v. State, 142 Ga. App. 507, 508 (2) (236 SE2d 180).

Judgment affirmed.

Banke and Underwood, JJ., concur.