Cross v. Huff, 17596

• Decision Date: 10 October 1951
• Docket Number: No. 17596,17596
• Citation: 67 S.E.2d 124,208 Ga. 392
• Parties: CROSS v. HUFF.
• Court: Georgia Supreme Court

Page 124

67 S.E.2d 124

208 Ga. 392

CROSS v. HUFF.

No. 17596.

Supreme Court of Georgia.

Oct. 10, 1951.

Syllabus by the Court.

A judge imposing a sentence is granted power to suspend or probate the sentence under such rules and regulations as he thinks proper. The judge has the right and authority to revoke the suspension or probation, after notice and a hearing, when the defendant violates any of the rules and regulations prescribed by the court. Code, §§ 27-2702, 27-2705, as amended by Ga.L.1950, p. 352. Where no rules or regulations are prescribed in the alleged suspended or probated sentence, and no violation of a prescribed rule or regulation is alleged, the court is without authority to order the defendant incarcerated upon the theory that he has violated the terms and conditions of a probation sentence.

The plaintiff in error (herein called the defendant) filed a petition for writ of habeas corpus against the Sheriff of Clarke County, and in substance alleged: On May 29, 1951, the defendant entered a plea of guilty to an accusation preferred against him in the City Court of Athens, charging him with illegal parking. He was sentenced to pay a fine of $43.50, and to work in the public works camp of the county for the full term of twelve months. The sentence, after imposing said punishment, contained the following provision: 'With the privilege to pay said fine and costs and be discharged at any time after entering upon such public works.' The fine was paid on the date imposed, and the defendant was released. He was rearrested, and on July 7, the judge of the city court entered an order that he be turned over to the board of commissioners of roads and revenues to serve in the public works camp of the county. The payment of the fine was an entire satisfaction of the sentence, and he is now being illegally held in custody by the sheriff.

Attached to the petition, and made a part thereof, was a copy of the sentence imposed by the Judge of the City Court of Athens. In so far as material here the sentence provided: 'Whereupon, It is considered and adjudged by the court that the said Defendant William P. Cross do pay a fine of $43.50, including all costs of this prosecution, and that it is ordered, by the Court, that said defendant * * * do work in that Public Works Camp of Clarke County for the full term of twelve months, to be computed from this date; * * * and, in case said defendant fails to pay said fine and costs within three days from this date, it is ordered, by the court, that said defendant be turned over to the Board of Commissioners of Roads and Revenues of this county, who are required to deal with and dispose of said defendant according to this sentence. With the privilege to pay said fine and costs and be discharged at any time after entering upon such Public Works. Upon payment of the fine the 12 months to be served outside said jail and/or camp on probation until further order of this court.'

Also attached as a part of the record was a copy of the petition of the Solicitor of the City Court of Athens to revoke the alleged probationary sentence. The judgment of the judge of the city court, which appears in the record, was in part as follows: 'After having heard evidence presented to the court from both sides in said ease, it is ordered that the said probation sentence be, and the same is hereby revoked, and that the defendant be disposed of and dealt with in accordance with the terms of same.'

On the hearing before the judge of the superior court, the sheriff testified that he is sheriff of the county, and that he houds the defendant in his custody by virtue of an order or judgment from the City Court of Athens, revoking a probation sentence. He identified the order (partially quoted above) and testified that: The defendant was arrested on July 6, and hearing was had in the city court on July 7. Three or four witnesses were present, and the sentence was revoked after a hearing by the court.

The judge of the city court testified: 'Had the hearing on the 7th and I revoked the sentence, after defendant had been duly notified, to show cause why the sentence should not be revoked. As to introduction of evidence I recall the names of three witnesses, L. C. Borders, a 14-year-old boy Geechie Martin, and officer McCurley, city policeman. The sentence was dated May 29th, 1851, I remember making this note at the time of the plea, in case No. 11179, Wm. P. Cross, White, 26, Winterville, Ga., Illegal parking, $43.50 fine and twelve months probation. When I pronounced sentence, I remember fining him the costs which Mr. Crawford, the clerk, had tabulated $43.50, and twelve months' probation, and saying to the defendant at the time he was being dealt with lightly because of the lack of evidence. I recall stating to him in open court that he was serving twelve months on probation. As to statements by the petitioner that he knew he was serving on probation, I recall last Saturday that Mr. Cross more than once--these hearings being very informal and purposely so--more than once he stated that he wouldn't have done such and such or been a party to such and such, because he knew he had this probation sentence hanging over him and he had to be careful, or words to that effect. He never said anything in my presence to indicate any misunderstanding of the sentence. Yes, the fine had been paid before the hearing for revocation, the same having been paid on May 30th, 1951.'

No other evidence was introduced, and at the conclusion of the hearing the judge of the superior court passed an order remanding the defendant to the custody of the sheriff. The exception is to that judgment.

Carlisle Cobb, Rupert A. Brown, Athens, for plaintiff in error.

D. M. Pollock, Sol. Gen., Monroe, for defendant in error.

HEAD, Justice.

Counsel for the defendant insist that the original sentence imposed by the judge of the city court was not a 'probation sentence;' that the defendant was sentenced to pay a fine of $43.50 and 'work in the Public Works Camp of Clarke County for the full term of Twelve months * * * with the privilege to pay said fine and costs and be discharged at any time after entering upon said Public Works.'

Counsel for the State insist the 'the last clear pronouncement of the court in the sentence in this case is 'upon payment of the fine the 12 months to be served outside said jail and/or camp, on probation until further order of the court' (compare Carter v. Johnson, 168 Ga. 688, 689, 148 S.E. 590; and that the word 'discharged' as used in the sentence merely allowed the defendant to serve his sentence outside of the public works camp.

From the language of...