Fleming v. State

113 Ga. App. 113 (1966) 147 S.E.2d 480

FLEMING
v.
THE STATE.

41800.

Court of Appeals of Georgia.

Submitted February 8, 1966. Decided February 11, 1966.

Lewis & Javetz, Emanuel Lewis, for appellant.

Andrew J. Ryan, Jr., Solicitor General, Robert E. Barker, for appellee.

DEEN, Judge.

1. Code § 27-2510 provides that all sentences pronounced in criminal cases shall be served concurrently "unless otherwise specifically provided therein." Whether a sentence is to be served concurrently with or consecutively to another previously passed on the defendant and which he is engaged in serving at the time is, accordingly, a part of the second sentence, and where the court stipulates that it shall "run consecutively to any other sentence heretofore imposed upon this defendant in the State of Georgia" this provision, too, is a part of the sentence and should be pronounced in the presence of the defendant. See Chastain v. State, 75 Ga. App. 880, 884 (45 SE2d 81).

2. However, a judgment of conviction will not be reversed and a new trial granted because of an error or irregularity in the manner of sentencing; the remedy is for the court to recall the defendant and sentence him as provided by law. King v. State, 103 Ga. App. 272 (3) (119 SE2d 77); Heard v. Gill, 204 Ga. 261 (49 SE2d 656); Peppers v. Balkcom, 218 Ga. 749 (2c) (130 SE2d 709). The case is therefore remanded with direction that the defendant be sentenced in accordance with law.

Judgment affirmed and case remanded with direction that the defendant be resentenced. Nichols, P. J., and Hall, J., concur.