Amerson v. Zant , 243 Ga. 509 ( 1979 )

Nichols, Chief Justice.

The question presented is whether Amerson’s three sentences of June 20,1972, which, in accordance with the jury’s verdict, are to be served consecutively to each other, should be served consecutively to, or, instead, concurrently with, his previous sentences.

Amerson last was tried and convicted in 1972 during the period when the jury was required to set his sentences. See Code Ann. §§ 27-2502, 27-2503. Because the jury did not specify that the 1972 sentences were to run consecutively to his previous sentences, Amerson contends that Code Ann. § 27-2510 (b) requires that the 1972 sentences be served concurrently with his previous sentences. The case of Bradshaw v. State, 132 Ga. App. 363 (208 SE2d 173) (1974) seems to support his position.

A majority of this court has held that the failure of the jury to specify that sentences for multiple convictions under a multicount indictment should run consecutively to each other requires that they shall run concurrently with each other. Code Ann. § 27-2510 (a); Wade v. State, 231 Ga. 131, 133 (200 SE2d 271) (1973); Mathis v. State, 231 Ga. 401 (202 SE2d 73) (1973); Gandy v. State, 232 Ga. 105 (205 SE2d 243) (1974). Presiding Justice Undercofler and I dissented in those cases. See also, Smith v. State, 139 Ga. App. 660 (229 SE2d 74) (1976); England v. Newton, 238 Ga. 534, 536 (233 SE2d 787) (1977) and State Bd. of Corrections v. Smith, 238 Ga. 565 (233 SE2d 797) (1977).

Submitted January 26, 1979 Decided April 17, 1979. Grover Amerson, pro se.

In 1969 Amerson was sentenced in Richmond County to five years each on four counts of robbery to run consecutively and thereafter was sentenced in Baldwin County to twenty years each on eleven counts of burglary to run concurrently. His only complaint is that his three sentences in Richmond County in 1972 to five years each for two counts of aggravated assault and two years for one count of escape, that were set by the jury to be served consecutively to each other, should be served concurrently with all his previous sentences, rather than commencing at the end of his previous sentences, since the jury did not specify that the 1972 sentences were to commence at the end of all of his previous sentences.

This court does not construe Code Ann. § 27-2510 (b) as being applicable under the facts of the present case. See Daughtrey v. State, 138 Ga. App. 504, 507 (2) (226 SE2d 773) (1976). The (b) section of Code Ann. § 27-2510 properly is to be construed as being applicable to groups of offenses committed in a single crime spree, where convictions for such offenses have been obtained in separate courts or terms of court. That section does not constitute a limitation upon the discretion of the trial court, derived from the common law, to set sentences imposed as a result of convictions for a new group of offenses that are separate and distinct from previous sentences to commence at the termination of all sentences previously imposed. Smith v. Ault, 230 Ga. 433 (3) (197 SE2d 348) (1973).

No abuse of the discretion of the sentencing court having been made to appear, the judgment appealed must be affirmed.

Judgment affirmed.

All the Justices concur, except Jordan and Hill, JJ., who dissent. Arthur K. Bolton, Attorney General, Mary Beth Westmoreland, for appellee.