Collett v. State
| Decision Date | 14 March 1974 |
| Docket Number | No. 48464,Nos. 1,3,2,48464,s. 1 |
| Parties | Vannette COLLETT v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A trial judge has authority to enter a suspended sentence in proper cases, such as this one.
2. The sentence reducing the felony to a misdemeanor pursuant to the jury's recommendation, was a legal sentence, but the conditions imposed on the suspension of the sentence amounted to banishment from certain counties within the state, and were void as against public policy.
Albert M. Horn, Atlanta, for appellant.
George W. Darden, Dist. Atty., Ralph W. Kearns, Jr., Marietta, for appellee.
The jury returned a verdict of guilty for violation of the Georgia Drug Abuse Act against the defendant, Vannette Collett. The judge sentenced defendant to 12 months in a public works camp and added the following: 'Suspended provided defendant moves within 7 days from this date outside of the following counties and not to return within these counties without court permission during the next 12 months: Fulton, DeKalb, Cobb, Clayton, Gwinnette (sic), Douglas and Paulding Counties and does not use any of the public streets or highways of said counties.' This sentence was dated July 18, 1972.
A warrant designated 'warrant for arrest of probationer' was issued and filed in the office of the Clerk of Cobb County Superior Court on May 1, 1973. The grounds for violation of probation were stated in said warrant as follows: 'Subject has been living in Cobb County, at 1007 Gresham Road; subject was at the Cobb County Jail on March 23, 1973, and was seen traveling on Interstate 75 in Cobb County on March 25, 1973.' It was signed as presented by Assistant District Attorney, Cobb Judicial Circuit.
The proceeding to revoke was brought before the court on May 8, 1973. The defendant, through her attorney, filed a written motion to dismiss 'the petition for revokation (sic) of probation on the ground that the sentence herein is illegal and void constituting a sentence of banishment.' The judge overruled the motion and certified his order for review. Hence, this appeal.
1. The first issue to be resolved in this appeal is whether the trial judge has authority to impose a suspended sentence in a criminal case. Several of the members of this court hold that no such authority exists except as incidental to a review of the judgment. This position is supported by older cases from this court and the Supreme Court. The most recent of these cases (Clarke v. Carlan, 196 Ga. 130, 26 S.E.2d 362), is a 1943 case which predates the enactment of Code Ann. §§ 27-2709 and 27-2714, both of which have their origins in Ga.L.1956, p. 27 et seq. The statute has since been amended so as to bring the law to the form presented in the two aforesaid sections of our annotated code. Code Ann. § 27-2709 provides in part: 'If it appears to court upon a hearing of the matter that the defendant is not likely to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court in its discretion shall impose sentence upon such defendant but may stay and suspend the execution of such sentence or any portion thereof, and may place him upon probation under the supervision and control of the circuit probation supervisor for the duration of such probation.' (Emphasis supplied.)
Code Ann. § 27-2714 provides: 'In all criminal cases in which the defendant shall be found guilty, or in which a plea of guilty or plea of nolo contendere shall be entered, and the trial judge after imposing sentence shall further provide that the execution of such sentence shall be suspended, such provision shall not have the effect of placing such defendant on probation as provided in this law (§§ 27-2702 through 27-2726.1).' (Emphasis supplied.)
The two sections of our Code, when construed in pari materia, clearly authorize thorize a trial judge to enter a suspended sentence when the statutory conditions exist justifying it. This court has stated: "While it is agreed that a suspended sentence does not have the effect of placing the defendant on probation (Code Ann. § 27-2714), we see no distinction between a condition imposed for a suspension and one imposed for probation,' so that a condition which would be authorized in the case of a probated sentence would be authorized in the case of a suspended sentence.' Falkenhainer v. State, 122 Ga.App. 478, 480, 177 S.E.2d 380, 381, and cit. (1970).
In Rowland v. State, 120 Ga.App. 248, 170 S.E.2d 58, the defendant pleaded guilty to six counts of uttering forged instruments, for which he received a suspended sentence of confinement for three years to follow another sentence previously imposed, subject to certain conditions. The defendant violated one of the conditions of his suspended sentence and was brought before the court for a revocation hearing. This court affirmed the trial court's revocation and, in answer to defendant's challenge of the regularity of the sentence, held (on p. 249) that, (Emphasis supplied.) See also Todd v. State, 107 Ga.App. 771, 131 S.E.2d 201, which involves a suspended sentence.
Likewise, in Cross v. State, 128 Ga.App. 774, 775, 197 S.E.2d 853 speaking in reference to a suspended sentence this court noted, 'we are satisfied that the (trial) court may provide rules and regulations in connection therewith and may, on violation of such rules and after notice and opportunity to be heard, during the time such sentence runs in accordance with its own terms, revoke the suspension and require that the remainder be served within a penal institution.'
Here, the suspended sentence in this case is in complete harmony with the jury verdict, which, after finding the defendant guilty of possessing marijuana, provided: 'also unanimous decision with (recommendation) of lieniency (sic) We the jury recommend a two thousand dollar fine and no years in prison with a recommendation that this be treated as a misdameaner (sic) with probation.' (Emphasis original.)
The decisions of this court in Falkenhainer, Rowland, Todd, and Cross, supra, specifically involved suspended sentences. We hold that a trial judge has authority to enter a suspended sentence in proper cases.
2. The defendant's motion to dismiss the petition for revocation contends 'that the sentence herein is illegal and void, constituting a sentence of banishment.' The sentence imposed by the trial judge has been fully set forth earlier in this opinion. The verbiage of the sentence can leave little doubt that it was the intention of the jury that the defendant receive only misdemeanor punishment. The sentence imposed (12 months suspended on condition) shows that the trial judge approved the recommendation of the jury and reduced the felony to a misdemeanor, as provided in Code § 27-2501, and was a legal sentence.
The defendant, however, contends that the conditions imposed on the suspended sentence (i.e., move out of the county within 7 days; stay out of the seven named counties during the term of the suspended sentence and not to use the public streets and highways of said counties) amount to a sentence of banishment and is unconstitutional. Art. I, Sec. I, Par. VII of the Constitution of the State of Georgia of 1945 (Code Ann. § 2-107), which provides: 'Neither banishment beyond the limits of the State, nor whipping, as a punishment for crime, shall be allowed.' We can find no Georgia cases interpreting this paragraph of our Constitution. Code Ann. § 27-2711 () sets forth the conditions of probation and gives the court the authority to determine the terms and conditions thereof. Here we are not concerned with a probated sentence, but one which has been suspended on certain conditions. As previously noted, Code Ann. § 27-2714 specifically provides that suspended sentences shall not have the effect of placing the defendant on probation. The only real distinction between a probated sentence and a suspended sentence is that a probated sentence is served under the supervision of the probation officers pursuant to the 'Statewide Probation Act,' Code Ann. §§ 27-2702 through 27-2726.1 (), whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge. Black's Law Dict. (Rev. 4th Ed.), p. 183. See also 8 C.J.S. Banishment p. 593.
It is argued that our Constitution is clear and that banishment occurs only when a person is expelled beyond the borders of the state. We have no Georgia cases on this point holding either view. The general rule is that banishment, while unusual, is not cruel, and does not constitute a violation of the prohibition against cruel and unusual punishments. 24B. C.J.S. Criminal Law § 1978(2), p. 554. It is impliedly prohibited by public policy, 21 Am.Jur. 2d 559, Criminal Law, § 609, in the absence of statutory authorization. 24B C.J.S. Criminal Law § 1991, p. 611.
In People v. Blakeman, 170 Cal.App.2d 596 (339 P.2d 202) the defendant pleaded guilty to the offense of assault and battery and proposed that he would leave the community. It was adjudged that he pay a fine of $500 and be imprisoned one year in the county jail, providing that the imposing of the jail sentence be suspended upon condition that he absent himself from the county. Ten months later,...
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