Woodall v. State

Deen, Judge.

The "Statewide Probation Act,” Code Ann §§ 27-2702 through 27-2721, and particularly §27-2709 (Ga. L. 1956, pp. 27, 31; 1958, pp. 15, 20; 1960, p. 1148) provide wide powers to superior courts in matters of probations and revocation of probated sentences. Pretermitting the question of whether the Cobb Superior Court has authority to revoke the probation of appellant, originally granted by the State Board of Pardons and Paroles, it is clear that powers under the Statewide Probation Act are limited "except for an offense punishable by death or life imprisonment . . . may hear and determine the question of probation of such defendant.” Since appellant was found guilty of murder and was given a life sentence, Code Ann. § 27-2709 would not apply. It appears that the State Board of Pardons and Paroles would have exclusive jurisdiction as to further consideration of rescinding probation or conditional release. Code Ann. §§ 77-518, 77-519, 77-520 (Ga. L. 1943, pp. 185, 192, 193; 1955, pp. 351, 352; 1964, pp. 497, 498; 1965, pp. 478, 479, 480, 481).

Submitted September 16, 1970 Decided October 15, 1970. W. R. Robertson, III, for appellant. Ben F. Smith, District Attorney, George W- Darden, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Assistant Attorneys General, for appellee.

The order of the board states that the defendant serve the remainder of his sentence on probation, and it is appellee’s argument that "due to the fact that the appellant is a probationer and not a parolee he is then subject to the supervision of the superior court where he was convicted or transferred,” and that the court therefore has authority to revoke the probation. The distinction is not well drawn, since under Code Ann. § 77-514 the board does have authority to release a prisoner on probation, he is then a "conditional releasee” under the terms of Code Ann. § 77-519 and is to be further dealt with by the board as therein stated.

The trial court erred in holding that it had jurisdiction of revocation of appellant’s probation therefore, this case must stand

Reversed.

Hall, P. J., and Evans, J., concur.