Howard v. State

231 Ga. 186 (1973) 200 S.E.2d 755

HOWARD
v.
THE STATE.

28142.

Supreme Court of Georgia.

Submitted September 10, 1973. Decided October 4, 1973.

Boling, Neville & Chinall, Richard Neville, for appellant.

C. B. Holcomb, District Attorney, B. B. Robertson, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.

NICHOLS, Justice.

On August 15, 1972, the defendant entered pleas of guilty to the murders of C. W. Morgan and Wilma Morgan. A jury was impaneled to decide the question of punishment and verdicts recommending the death sentence were returned. Thereafter, a death sentence in each case was imposed and a motion to set such sentence aside was filed and denied. A motion for new trial was filed but not ruled upon. A certificate of immediate review of the motion to set aside and amend the death sentence was granted. Held:

Under the decisions of this court in Sullivan v. State, 229 Ga. 731 (194 SE2d 410); Sirmans v. State, 229 Ga. 743 (194 SE2d 476); Grantling v. State, 229 Ga. 746 (194 SE2d 405); and Massey v. State, 229 Ga. 846 (195 SE2d 28), and cits., the death sentences imposed on August 16, 1972 must be vacated and a judgment entered sentencing the defendant to be imprisoned for the balance of his life, this being the only lawful sentence which may be entered upon the finding of the jury that the defendant should receive the maximum sentence permitted by law.

"Under decisions exemplified by Fowler v. Grimes, 198 Ga. 84, 92 (31 SE2d 174), it is not necessary that the defendant be present in open court or represented by counsel. However, direction is given that each defendant and his counsel of record be served with a copy of the life sentence within five days from the date of entry." Sullivan v. State, 229 Ga. 731, supra.

Judgment reversed with direction. All the Justices concur.