Johnson v. State , 161 Ga. App. 506 ( 1982 )

McMurray, Presiding Judge.

The defendant herein pleaded guilty to the offense of armed robbery, and the trial court on September 6, 1978, entered a “First Offender Sentence” wherein it was “ordered by the Court without adjudicating the defendant guilty that the defendant be placed on probation for a period of ten years pursuant to the provisions of Georgia Law, 1968, pp. 324, 325 (The First Offender Act).” He was also required during his period of probation to pay a fine of $1,000 as directed by the probation office and pay full restitution, although the amount of restitution was not set forth in the sentence. This sentence also stated that at the end of the period of probation the court would determine “whether or not to adjudicate the defendant guilty or to expunge the record of the proceedings in this case,” but should defendant violate any of the terms of probation the court would enter an adjudication of guilt and require the defendant to serve “said probated sentence in custody.” Conjunctively with the foregoing sentence of the court, the court on September 6, 1978, entered a “Sentence of Probation” sentencing the defendant to confinement for a period of 10 years under the First Offender Act and ordered that the defendant serve said period upon probation. This “Sentence of Probation” expressly stated that if this probation was revoked the court could order the execution of the original sentence imposed (10 years) or any portion thereof in the manner provided by law, “after deduction therefrom the amount of time the defendant has served on probation.”

The defendant was then allowed to serve the sentence on probation provided he complied with general and special conditions therein set forth by the court. Included therein is the requirement that he report to the probation supervisor as directed and not to change his present place of abode, that is, move outside the jurisdiction of the court or leave the state for any period of time without prior permission of the probation supervisor.

On July 7,1981, a petition was filed for adjudication of guilt and imposition of sentence by reason of the fact that the defendant had violated the terms and conditions of his probation, that is, in failing to report to the probation officer as directed and having changed his present place of abode without prior permission of the probation officer. The petition, including the show cause order of the court, was served upon the defendant, and after a hearing the court issued its order stating that after a full hearing had been conducted the court determined the terms of probation had been violated in that he had failed and refused willfully to report to his probation officer, had failed and refused to report his change of address to the probation officer and “failed to pay his fine as ordered.” He was then adjudged guilty and ordered to serve 20 years. Defendant appeals. Held:

1. While the defendant was required, as a term of his probation, to pay the fine at the rate of $30 per month, and this was not one of the terms of probation which he had been charged with allegedly violating, nevertheless the court made a determination that he also had violated the terms of probation as charged in the petition as to the two conditions set forth. There is no merit in the enumeration of error that the trial court “revoked the Defendant’s probation based on a ground not contained in the Petition for Revocation.”

2. Under the slight evidence rule the evidence here was sufficient for the trial court to find that the terms of probation set forth in the petition had been violated. Likewise, under the recent case of State v. Brinson, 248 Ga. 380 (1) (283 SE2d 463), the court’s statement in its order as to the findings of fact relating to the grounds for revocation was sufficient.

3. However, the imposition of a 20-year sentence was greater than the 10-year confinement order (which was probated), and the trial court could not re-sentence the defendant to a greater term than that originally given him under the sentence of 10 years even if it recited same was “under the First Offender Act.” This case is entirely different from that of State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790), reversing Wiley v. State, 131 Ga. App. 511 (206 SE2d 140), wherein a probationary sentence of three years was entered under the First Offender Act (“preliminary only”) wherein if same had been completed without violation “permits the offender complete rehabilitation without the stigma of a felony conviction.” Here the trial court also entered, conjunctively with the first offender sentence, a “Sentence of Probation” sentencing the defendant to confinement for a period of 10 years even though reciting same was “under the First Offender Act” and ordered that the defendant serve said period upon probation. The court ordered that “further proceedings are deferred in accordance with said Act, provided, that said defendant complies with the following general and special conditions herein imposed by the Court as a part of this sentence.” This sentence of probation clearly stated further that if such probation is revoked “the Court may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law after deduction therefrom the amount of time the defendant had served on probation.” (Emphasis supplied.) Here the court ordered not only a first offender sentence, but a confinement sentence which was likewise probated. It is, therefore, the exact sentencing procedure found in Lillard v. State, 156 Ga. App. 54, 55-56 (2) (274 SE2d 96), and unlike the sentence found in State v. Wiley, 233 Ga. 316, 317, supra, in which only a preliminary probationary sentence was imposed “without the stigma of a felony conviction.” Our criminal law is statutory, therefore, same is in derogation of the common law and must be strictly construed. See Wood v. State, 68 Ga. App. 43, 47 (a) (21 SE2d 915); Entrekin v. State, 147 Ga. App. 724 (1) (250 SE2d 177); Cross v. Huff, 208 Ga. 392, 396 (67 SE2d 124). Whether or not it was the intention of the trial court to place the defendant on probation for a term of 10 years and adjudication of guilt of the defendant was to be deferred and suspended pending the service of the probated sentence, nevertheless in the case sub judice unlike the sentence in Wiley, supra, the trial court likewise sentenced the defendant to 10 years in confinement. Consequently, with the finding by the court that defendant’s terms of probation had been violated under that sentence, he is entitled to have deducted from his 10-year sentence “the amount of time the defendant has served on probation.” See Stephens v. State, 245 Ga. 835, 836-838 (268 SE2d 330), wherein the Supreme Court held: “An accused is entitled to rely on the provisions set forth in the sentencing document. . .” and “the maximum time . . .” could not be increased “when the probation was revoked.” The case is remanded for a proper sentence to be entered.

Judgment affirmed in part and reversed in part.

Quillian, C. J., concurs. Pope, J., concurs specially. Decided March 4, 1982. Floyd H. Farless, for appellant. Larry Salmon, District Attorney, for appellee.