Hinton v. State, 47654

• Decision Date: 22 January 1973
• Docket Number: No. 2,No. 47654,47654,2
• Citation: 127 Ga.App. 853,195 S.E.2d 472
• Parties: Emmitt HINTON v. The STATE
• Court: Georgia Court of Appeals

Page 472

195 S.E.2d 472

127 Ga.App. 853

Emmitt HINTON v. The STATE.

No. 47654.

Court of Appeals of Georgia, Division No. 2.

Jan. 22, 1973.

Grogan, Jones & Layfield, John C. Swearingen, Jr., Richard A. Childs, Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., Douglas C. Pullen, Columbus, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Emmitt Hinton, sentenced to 'five years in the penitentiary, to be suspended,' following a plea of nolo contendere to possession of narcotics, was subsequently apprehended 'carrying a concealed weapon and pistol without license.' For the latter offense, the trial judge revoked his suspended sentence. From this order he appeals. Enumerations of error involve two principles of law.

1. In cases of felonies not punishable by life imprisonment 'the judge imposing said sentence is . . . granted power and authority to suspend or probate said sentence, under such rules and regulations as he thinks proper.' Ga.L.1919, p. 387; 1950, pp. 352, 354; 1964, pp. 483, 484 (Code Ann. § 27-2502). The trial court did not err in imposing a suspended sentence and, therefore, did not err in not sustaining appellant's motion to correct sentence by changing it to a probated sentence.

2. 'The judge is also empowered with the right and authority to revoke said suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court.' Code Ann. § 27-2502, supra, and the condition that the defendant obey all State, Federal, and municipal laws is not so vague, indefinite, ambiguous, and uncertain as to be unenforceable. Bryant v. State, 89 Ga.App. 891, 893, 81 S.E.2d 556. The evidence required to revoke a suspension is only some evidence that the defendant has violated the conditions of the probation which satisfies the trial court hearing the same in the exercise of a very wide discretion-it is not necessary to show that the defendant has been convicted of the act constituting the violation of the probation. Bryant v. State, 89 Ga.App. 891, 893, 81 S.E.2d 556, supra; Rowland v. State, 124 Ga.App. 494, 184 S.E.2d 494; Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37. When the sentence announced in court with the defendant present was 'five years in the penitentiary, to be suspended' and the sentence reflected in a later written order stating the condition for obedience of laws, knowledge of such condition not being imputable to the defendant, the effect of such a sentence is an unconditional discharge. '. . . to deprive a defendant of his liberty upon the theory that he has violated rules and regulations prescribed in his sentence, when no rules, regulations, conditions, limitations, or restrictions were imposed by such sentence, would deprive the defendant of 'due process of law'. The defendant was not put upon notice of what was expected or demanded of him, and the judge only has authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court.' Cross v. Huff, 208 Ga. 392, 398, 67 S.E.2d 124, 127; Morgan v. Foster, 208 Ga. 630, 631(2), 68 S.E.2d 583; Code Ann. § 27-2502, supra. See also Chastain v. State, 75 Ga.App. 880, 45 S.E.2d 81.

The only sentence brought to the attention of the defendant was the oral pronouncement in court. We said in Inman v. State, 124 Ga.App. 190, 192, 183 S.E.2d 413, 414: 'While it...