Inman v. State, 46452

• Citation: 124 Ga.App. 190,183 S.E.2d 413
• Decision Date: 08 July 1971
• Docket Number: No. 46452,No. 3,46452,3
• Parties: James A. INMAN v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 413

183 S.E.2d 413

124 Ga.App. 190

James A. INMAN v. The STATE.

No. 46452.

Court of Appeals of Georgia, Division No. 3.

July 8, 1971.

Syllabus by the Court

Conditions of probation imposed by a court must be reasonably related to the probationer's rehabilitation to a law-abiding life and not unduly restrictive of his liberty or personal self-expression. A condition requiring a short haircut does not meet this test.

Defendant appeals from the judgment of conviction and sentence for the offense of possessing marijuana. Defendant and a friend were stopped in their automobile by a policeman (for reasons unknown). The officer searched the car and found a pipe which was later determined to have marijuana scrapings in it. The young men were arrested and subsequently indicted for possession. Defendant claims he made a plea bargain with the district attorney who denies any such thing. Whatever the truth, defendant did enter a plea of nolo contendere. After summary hearing, the judge, noting that this was a first offense, orally sentenced him to two years on probation, subject to the payment of a $500 fine and to his 'obtaining and maintaining a short haircut during the entire period of probation.'

Defendant immediately met the court probation officer, paid the fine, was read the rules of probation and signed them, along with a waiver of extradition (in case he left the jurisdiction). He then asked his lawyer to request the court to delete the haircut condition. Two days later his lawyer presented the judge with a petition for modification of the sentence concerning for haircut, with a prayer for a rule nisi to hear the matter. The judge declined to sign the rule and instead directed counsel to bring defendant back two days later for resentencing. For obvious reasons, the petition was not filed or served on the district attorney; however, the record shows that the State made an appearance at the 'resentencing.'

At the outset of this proceeding, the judge stated that he had not yet signed any judgment in the case; that following the non-binding oral sentence he had 'made subsequent investigation'; and that he had determined that the sentence should be 'modified.' Defendant's lawyer first argued several legal issues (which will be discussed below) and finally made a motion to change defendant's plea. He met adverse rulings throughout. The court then informed defendant that it was going to 'reduce' his sentence-that he would get instead, one year in the penitentiary and a rebate of his fine which had been 'prematurely' paid. The court signed this judgment on the spot and defendant went straight to jail. (His request for supersedeas bond was also denied.)

Nightingale, Liles & Dennard, Thomas E. Dennard, Jr., B. N. Nightingale, Brunswick, for appellant.

W. Glenn Thomas, Dist. Atty., Jesup, Wesley A. Wraggs, Brunswick, for appellee.

HALL, Presiding Judge.

1. The State contends that the oral declarations of a judge are not binding; that as no judgment ordering probation was ever signed, the defendant never commenced serving such a sentence; that the matter of sentence was still within the breast of the court; and therefore, the written judgment and sentence of one year's incarceration must be affirmed.

While it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354; Gobels v. Hays, 194 Ga. 297, 21 S.E.2d 624; Rutland v. State, 14 Ga.App. 746, 82 S.E. 293. See also 168 A.L.R. 706.

We do not believe the question of whether defendant's punishment was increased merits discussion. The State does not argue the point. The real issue is whether defendant had begun serving his sentence. To take the technical view that nothing had happened yet, because the judge had not signed a document, is to ignore the realities of court practice and administration. Every lawyer knows that judges do not sit at the bench drawing complex orders or judgments. In a civil action, the prudent attorney comes armed with suitable writings to present if he prevails. In a criminal action, the State has forms which only require the insertion of the date, defendant's name, the charge and the number of years he gets. The transcript here reveals that in this type of case, the formal judgment of conviction, sentence and probation is prepared by the probation office and submitted to the judge at some later time for signature. Without knowing what the backlog of paperwork this particular office has, we can assuredly say that it does not have the power to delay the running of a sentence because of clerical problems, when all other necessary steps in the process have been completed.

Defendant had gone with a probation officer, at the court's direction, immediately following the oral sentence. He was instructed in the rules of probation and signed all the required papers. He paid his fine. He was released as, and because he was, a probationer, expecting and expected to follow the rules. He did not break the haircut condition, he pursued a legal process to have it changed. If the probation office had neglected to draft a judgment for two years, then by any standard of due process, defendant would have been entitled to discharge.

Accordingly, the court was without power to resentence him, and the subsequent judgment and sentence is utterly void.

2. There remains the sentence of two years probation-with a short...