Gandy v. State

• Decision Date: 04 April 1974
• Docket Number: No. 28448,28448
• Citation: 205 S.E.2d 243,232 Ga. 105
• Parties: Robert C. GANDY, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 243

205 S.E.2d 243

232 Ga. 105

Robert C. GANDY, Jr. v. The STATE.

No. 28448.

Supreme Court of Georgia.

April 4, 1974.

Rehearing Denied April 23, 1974.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, R. Andrew Weathers, Morris H. Rosenberg, Arthur K. Bolton, Atty. Gen., William F. Bartee, Jr., Asst. Atty. Gen., G. Stephen Parker, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

GUNTER, Justice.

This appeal is from two convictions for armed robbery. The appellant was indicted, tried, and convicted for having committed two armed robberies on February 16, 1973. After finding the appellant guilty on both counts of the indictment the jury, pursuant to our two-step felony procedure, fixed the punishment for the appellant on the first count to be imprisonment for life and on the second count to be imprisonment for twenty years. The two sentencing verdicts by the jury did not indicate whether the two sentences were to run consecutively or concurrently.

The written sentence imposed by the trial judge was imprisonment 'for and during his natural life to be computed according to law as to count one; and twenty (20) years to follow count one, as to count two.'

The appellant has enumerated three errors in this court. Enumerations two and three are wholly without merit, and we do not deem it necessary to even treat them in this opinion.

The first enumerated error contends that since the sentencing verdicts by the jury were silent as to whether the two sentences should run concurrently or consecutively, then they must run concurrently, and the trial judge's imposition of consecutive sentences was erroneous.

This enumerated error is based upon the decisions of this Court in Wade v. State, 231 Ga. 131, 200 S.E.2d 271, and Mathis v. State, 231 Ga. 401, 202 S.E.2d 73.

In Wade this Court said (pp. 134, 135, 200 S.E.2d p. 274): 'When these three code sections are construed together, we conclude that the jury in felony cases fixes the punishment of the convicted person. If there are two or more convictions in a multi-count indictment, the jury must prescribe the sentence to be served on each count. And unless the jury specifies that the sentences imposed are to run consecutively, then the law (Code Ann. § 27-2510) is that they shall run concurrently. The trial judge, in entering a sentence or sentences, has legal authority to probate a sentence or any part thereof. Code Ann. § 27-2502. But a trial judge does not have legal authority to say whether sentences imposed by a jury in a multi-count indictment shall run concurrently or consecutively. Under our present statutes that function is solely within the province of the jury, because the jury fixes the 'total punishment' for a person convicted on one or more counts of a multi-count indictment. We therefore hold that the sentence entered by the trial judge on June 23, 1972, and the sentence entered by the trial judge on December 9, 1972, were not valid sentences because they did not follow the sentence-verdict returned by the jury.'

In Mathis this court said (231 Ga. p. 404, 202 S.E.2d p. 76): 'However, this court in Wade v. State, 231 Ga. 131, 200 S.E.2d 271, held that Code Ann. §§ 27-2502, 27-2534 and 27-2510 when construed together allow the jury in felony cases to fix the punishment of the convicted person and that unless the jury specifies that the sentences imposed are to run consecutively, then the law is that they shall run concurrently. Therefore, we hold that the trial judge was not authorized to provide that the ten-year aggravated assault sentence was to run consecutively after the termination of the armed robbery sentence. It is directed that this portion of the trial court's sentence be stricken and that the two sentences run concurrently since the jury did not state they were to run consecutively.'

In this case the state has asked that this court's ruling in Wade, which was followed in Mathis, be now overruled, the state's contention being that prior to the Wade decision the trial judge had the authority and discretion to determine whether multiple sentences would run concurrently or consecutively.

We decline to overrule Wade and Mathis for the reasons hereinafter stated.

In 1833 the General Assembly of Georgia enacted a statute as follows: 'Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such sentences shall be severally executed, the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence, and the length of its duration.' Ga.L.1833, p. 208. This statute was the law of Georgia and remained unchanged until the year 1956. In the 1933 Code it was § 27-2510.

It is thus seen that during all of these years, from 1833 to 1956, the General Assembly of Georgia had specified by statute that multiple felony sentences were to be served consecutively. In felony cases no discretion was lodged in either judge or jury that permitted the serving of such multiple sentences concurrently.

Prior to 1919 Georgia was a 'judge sentencing' state. An 1843 statute provided as follows: 'That when any person shall be convicted in any court of this State, of a crime or misdemeanor hereafter to be committed, which shall subject him, her or them to imprisonment and labor in the penitentiary of this State, the judge before whom such trial and conviction may be had, shall sentence the person so convicted to hard labor for such period of time as he is authorized by the Penal Code of this State, in the penitentiary of this State, or at such other place or places as the Governor of the State may thereafter direct.' Cobb's Digest, 1851, p. 842. Therefore, even when 'judge sentencing' was the rule, the trial judge was required to impose consecutive sentences for multiple felony convictions in accordance with the 1833 statute referred to above.

In 1919 Georgia became a 'jury sentencing' state in all felony cases other than those punishable by life imprisonment. The 1919 statute provided in part as follows: 'That from and after the passage of this Act that the jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as the punishment for said crime, and the judge in imposing the sentence shall commit said convicted person to the...