Heard v. Gill , 204 Ga. 261 ( 1948 )

After a valid verdict of guilty, with punishment fixed at three to five years, has been returned by a jury, and the trial judge has imposed an oral sentence in accordance therewith but through inadvertence the written sentence signed by the judge is for a term of seven to ten years, such sentence and judgment signed by the trial judge is a nullity because it does not follow the verdict, as required by the law. Code, § 27-2502. However, it appearing on the face of the record that a valid verdict has been returned, such a sentence, though a nullity, may be corrected to conform to the verdict; and this may be done after the expiration of the term at which the sentence was imposed. "Although it is the general rule that trial courts have no power, after the end of the term at which a sentence is imposed, to ``modify and change the sentence formerly imposed,' and that such a new judgment is a nullity (Porter v. Garmony, 148 Ga. 261, 262, 96 S.E. 426; Auldridge v. Womble, 157 Ga. 64, 120 S.E. 620), nevertheless a defendant, after a plea or verdict of guilty, may, when a void sentence has been imposed, be returned before the proper court ``in order that a legal sentence may be imposed upon him in accordance' with law." American Surety Company of New York v. State of Georgia, 50 Ga. App. 777, 783 (179 S.E. 407), and cit. In Morris v. Clark, 156 Ga. 489 (2) (119 S.E. 303), this court, after holding that a sentence imposed upon the accused was a nullity because it was not in accordance with the law, held: "A plea of guilty by the defendant appearing in the record, he can not be discharged, although the sentence is a nullity; and the case is remanded to the court below, with direction that the applicant be taken before the proper court in order that a legal sentence may be imposed upon him in accordance with the indeterminate-sentence law." This procedure has been approved as recently as Whittle v. Jones, 198 Ga. 538, 545 (32 S.E.2d 94), where the court said: "If the sentences had been void, a verdict of guilty appearing in the record, it would seem that this would not entitle the applicant to his discharge on habeas corpus. He stands convicted of a crime, and if no sentence had been rendered, of if the one that was passed was void . . the proper procedure apparently would have been to remand him to be sentenced for his crime." As stated in Screen v. State, 107 Ga. 716 (33 S.E. 393): "The irregularity in the sentence is not of such a character as to entitle the plaintiff in error to be discharged from custody. He has been lawfully convicted, and he can not, for the reason that the sentence was . . irregular, be allowed to escape the penalty which the law declares shall follow his conviction. While it was proper to refuse to discharge him from custody, he was entitled to have the sentence so changed as to make it conform to the law in all particulars; and the judgment is affirmed, with direction that the sentence be so amended as to conform" to the verdict of the jury.

Judgment affirmed, with direction. All the Justices concur, except Bell, J., absent on account of illness.

No. 16288. SEPTEMBER 14, 1948. Willie Duffee Heard filed a petition for the writ of habeas corpus, contending that he was being illegally detained under a void judgment and sentence, in that the jury in the trial of his case had returned a verdict reading, "We, the jury, find the defendant guilty, 3 to 5 years;" and the court, after the return of such a verdict, imposed upon the applicant a sentence of not less than 7 years and not more than 10 years, contrary to the terms of the verdict. It was alleged that the applicant's confinement was in violation of the due-process clauses of the Constitutions of the United States (Code, § 1-805) and of Georgia ( § 2-103), and that the sentence was not in accordance with the Indeterminate-Sentence Law of 1919 (Code, § 27-2502).

On the hearing, the parties entered into an agreed statement of facts, the material portions of which are as follows:

"Willie Duffee Heard was indicted at the March, 1947, term of Fayette Superior Court on a charge of burglary, to which charge he entered his plea of guilty at said term of court. . . The court then and there orally sentenced him from 7 to 10 years in the penitentiary. F. A. Sams, attorney for the said Willie Duffee Heard, appealed to the court for a new trial, that is, a trial before a jury, and the court consented orally for the defendant to have a new trial, but no formal order was issued to this effect in writing. At the September term, 1947, Willie Duffee Heard pleaded not guilty and went to trial before a jury. Upon trial of the case, the jury returned a verdict as follows: ``We, the jury, find the defendant guilty, 3 to 5 years, this 8th day of September, 1947.' The court followed the verdict of the jury, and then and there orally sentenced the defendant, Heard, to serve from 3 to 5 years in the penitentiary. In preparing formal and written sentence the clerk of court inadvertently showed a sentence of 7 to 10 years in the penitentiary, which said sentence the court signed without knowing about the mistake. The defendant Heard has entered in the penitentiary and has served less than a year of his said sentence."

At the conclusion of the hearing, the court remanded the applicant to the custody of the warden. The exception is to this judgment.