Plunkett v. Miller

Hines, J.

1. The method of revoking a probation granted to a convicted defendant is fixed by our probation law. In ease such defendant fails to observe all rules prescribed by the court for his conduct, to report to the probation officer as directed, and to maintain a correct life, he may, at any time prior to the final disposition of the probationer’s case, while in the custody of such officer, be brought without warrant before the court, or the court may issue a warrant directing that he be arrested and brought before it; and when such defendant is brought before the court, the court after due examination may revoke its leave to probationer to serve his sentence outside of the confines of the chain-gang, jail, or other place of detention. Acts 1913, pp. 112, 114; Park’s Penal Code, § 1081(d).

2. This method of revocation -of the probation of a convicted defendant, being prescribed by statute, is exclusive; and can not be dispensed with by provision in his original sentence which declares that his probation shall be ipso facto revoked by his failure to observe any of the rules prescribed by the court for his conduct during the period of his probation.

3. The due examination thus provided by the statute requires that the probationer be given notice and an opportunity to be heard upon the question whether his parole shall be revoked or not; and an order revoking his parole in his absence, without notice and an opportunity to be heard; is null and void. Roberts v. Lowry, 160 Ga. 494 (128 S. E. 746).

4. The order of the judge of the city court of Richmond County, in which court the defendant was sentenced for a violation of the prohibition law, revoking her parole and directing that she serve the remainder of her sentence within the confines of the State farm at Milledgeville, was null and void upon the grounds, (1) that the judge could not lawfully change the original sentence of the defendant after it had been partially executed, and (2) that such order was passed without notice and opportunity to the defendant to be heard upon the question of the revocation of her parole.

5. It follows that the judge of the superior court did not err, on the hearing of the defendant’s application for habeas corpus, in ordering her discharged from the custody of the .sheriff, it appearing that that officer held her in custody under her original sentence and under the order of the judge of the city court revoking her parole.

6. Whether the defendant can now be brought before the judge of the city court upon a warrant duly issued by him for the purpose of determining whether the probation of the defendant should be revoked, and whether, upon due examination, the judge of the city court can revoke her parole, and require her to serve her original sentence in the chain-gang, if he finds that she had violated the rules prescribed for her conduct while on parole, is not now for decision by this court. \

No. 5090. December 21, 1925.

Judgment affirmed.

All the Justices concur. W. Inman Curry, for plaintiff in error. A. R. Williamson, C. Vernon Elliott, and H. A. Woodward, contra.