Balkcom v. Gunn

• Decision Date: 15 November 1949
• Docket Number: 16870.
• Parties: BALKCOM v. GUNN.
• Court: Georgia Supreme Court

56 S.E.2d 482

206 Ga. 167

BALKCOM v. GUNN.

No. 16870.

Supreme Court of Georgia

November 15, 1949

Syllabus by the Court.

1. Where a person is placed under a probation sentence, the probation feature thereof cannot be revoked, under Code, § 27-2705, without notice to the probationer and an opportunity to be heard on the question of whether he had violated its terms.

2. Code, § 27-2705 was not repealed by Ga.L.1939, p. 285.

3. Where a probation sentence is given, the trial judge is without authority to reserve therein the right to revoke the same without notice or hearing.

Blackwell Gunn sought and secured release from the warden by a writ of habeas corpus. On May 20, 1946, he was given probation sentences of 12 months each, running consecutively, for five misdemeanor sentences each for some form of shooting. At the expiration of three of these sentences, and before the commencement of the last two, to wit, on May 19, 1949, the trial judge, without notice or hearing, revoked the probation provision thereof and directed that the defendant serve the latter two sentences in the public-works camp. The sole question here presented is whether the superior court judge was authorized under the terms of the sentence to revoke the probation provision thereof without notice or hearing.

The relevant portion of the sentence was: 'However, it is hereby ordered that said defendant * * * is hereby given leave to serve the aforesaid sentence outside the confines of the jail, public-works camp, or other place of detention, as the case may be, provided that said aforesaid person shall indulge in no unlawful, disorderly, injurious or vicious habits or conduct; shall avoid places or persons of disreputable character; shall report to the probation officer as directed; shall not leave the jurisdiction of the court without permission; and shall observe such other conditions as are specified below, or at any time be required by the court, judge thereof, or the probation officer, under the rules of probation now in effect or that may hereafter be promulgated.' The next paragraph was as follows: 'The court reserves the right to revoke this order admitting the defendant to probation at any time the court in its discretion believes the conduct of the defendant to justify same.'

Without notice or hearing the judge revoked the probation features of the sentences, and Gunn was placed in the State prison at Reidsville.

To Gunn's petition for the writ of habeas corpus the warden filed a general demurrer, which was overruled by the Judge of the City Court of Reidsville, who entertained the petition and discharged Gunn from custody, to which ruling the warden excepted.

J. T Grice, Dep. Asst. Atty. Gen., Maston O'Neal, Sol. Gen Bainbridge, for plaintiff in error.

W. Reeves Lewis, Vidalia, T. Ross Sharpe, Lyons, for defendant in error.

ATKINSON, Presiding Justice (after stating the foregoing facts).

1. By the act of 1913, Ga.L.1913, p. 112, sec. 1, Code, § 27-2702, provision is made for the probation of misdemeanor sentences. By section 4 of the same act, Code, § 27-2705, provision is also made for the revocation of the probation features of such a sentence. It states: 'In case of failure to meet any of these requirements, and at any time prior to the final disposition of the case of any probationer in the custody of a probation officer, the officer may bring him without warrant before the court or the court may issue a warrant directing that he be arrested and brought before it. When such person is brought before the court, the court after due examination may revoke its leave to the probationer to serve his sentence outside the confines of the chain gang, jail or other place of detention.' In construing this section, our courts have held that the probation feature of the sentence cannot be revoked without giving the probationer a hearing. Roberts v. Lowry, 160 Ga. 494(1-2), 128 S.E. 746; Plunkett v. Miller, 161 Ga. 466, 131 S.E. 170; Williams v. State, 162 Ga. 327(3), 133 S.E. 843; Smith v. Veach, 165 Ga. 190, 140 S.E. 356; Robinson v. State, 62 Ga.App. 539, 8 S.E.2d 698; Brown v. State, 71 Ga.App. 303, 30 S.E.2d 783.

2. The warden insists that Code, § 27-2705, which was codified from the act of 1913, p. 112, providing for a hearing before the revocation of a probation sentence, was repealed by the act of 1939, p. 285, now Code Ann.Supp. § 27-2525. To determine this question, some history of our law as to sentences will be helpful. Prior to 1919, in felony cases in which the only punishment was a term of years, the jury found a verdict of either guilty, or not guilty, or guilty with a recommendation for misdemeanor punishment, and the trial judge fixed the punishment within the term fixed by law. Subsequently to the act of 1913, p. 112, in imposing misdemeanor punishment the trial judge could place the accused under probation. By the act of 1919, p. 387, the General Assembly provided that in felony cases not punishable by life imprisonment...