Stockton v. State , 70 Ga. App. 17 ( 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.

DECIDED OCTOBER 4, 1943. At the August term, 1942, of Jackson superior court, Will Stockton, whom we will call the defendant, was convicted in two misdemeanor cases, (1) number 2289 for possessing non tax-paid liquor, (2) number 2350 for selling beer without a license, and sentenced to serve twelve months on the public works of Jackson County in each case. The sentences were "to run consecutively, and not concurrently." The service of the time on the public works as provided by the sentences was "suspended by the court." These sentences were dated August 11, 1942. It appears from the record that the defendant was required to pay a fine, and did so. On March 17, 1943, the judge of the superior court issued a notice to be served on the defendant to show cause why he should not be required to serve the sentences dated August 11, 1942, because he was "charged in the city court of Jefferson, Jackson County, Georgia, on the 9th day of March, 1943, with the offense of transporting liquor, a misdemeanor, and that he entered a plea of guilty thereto on March 9, 1943." The defendant was duly served, and a hearing was had on the notice on rule nisi. After evidence was submitted and considered, the following order was passed (after stating the case):

"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 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 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, 148 Ga. 261 (96 S.E. 426), it was said: "Where one accused of a misdemeanor was convicted, and at the term at which the trial took place was sentenced to serve a term in the chain-gang, and the accused carried the case by writ of error to the Court of Appeals, where the judgment of the lower court was affirmed, the trial court was without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the sentence formerly imposed; and where he did pass an order modifying and changing the sentence, such order was void, as the court was without jurisdiction to alter the sentence originally imposed." In Auldridge v. Womble, 157 Ga. 64 (120 S.E. 620), it was held: "After the adjournment of the term of court at which a sentence is imposed, the judge is without authority to change and modify it. The principle of law contained in the decisions of this court, holding that after the adjournment of the term of court at which the sentence is imposed the judge cannot change and modify it, was not altered by the provisions of section 1 of the act relating to the probation of offenders in certain cases, approved August 16, 1913." In Rutland v. State, 14 Ga. App. 746 (82 S.E. 293), the ruling was, that "a new sentence can not be pronounced after the term has passed and the first or original sentence has been either wholly or in part complied with; and no amendment to the judgment can take place, where to allow it would require the passing of a new sentence." And in Matthews v.Swatts, 16 Ga. App. 208 it was said: "A judge has no authority to amend his judgment in any particular after the term of court at which it was passed has expired." As to the authority of the court to amend, correct, or revoke a sentence during the term of court in which it was rendered, see Gobles v. Hayes,194 Ga. 297 (21 S.E.2d 624), presenting a learned discussion.

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 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, 68 Ga. App. 43 (26 S.E.2d 140).

Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.