Jackson v. State, 35397
| Decision Date | 30 November 1954 |
| Docket Number | No. 35397,No. 2,35397,2 |
| Citation | 91 Ga.App. 291,85 S.E.2d 444 |
| Parties | JACKSON v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where, as here, a probated sentence was meted out to a defendant in a criminal case at a term of court prior to the time of an alleged violation of the terms of probation and the hearing thereon, but the term of such sentence was to begin at a future time which had not yet arrived, the trial court had no power to amend the sentence or revoke its probation feature before the defendant commenced service of such sentence. The court did, however, have jurisdiction to entertain a petition to revoke the probation feature of another sentence which the defendant was actually serving at the time of the hearing.
2. It was not error to admit in evidence the sentence of the court relating to the case in which the defendant was at the time serving a probated sentence.
3. The evidence was ample to substantiate that the defendant had violated the terms of his probation.
This case represents an appeal from a judgment of the Superior Court of Gwinnett County revoking probation sentences. The defendant, Leonard Jackson, was sentenced on April 27, 1953, on pleas of guilty, in three cases (Nos. 4763, 4764, and 4922) for liquor violations, each sentence to run consecutively and not concurrently with the other two cases, and each providing for a fine of $625 and 12 months in the public-works camp of Gwinnett County, the latter provision to be probated upon payment of the fine. The fines were paid. On August 7, 1954, a hearing was had on a petition of the solicitor-general seeking to revoke the probation features of the sentences and, after hearing evidence, the court passed the following order: 'It is hereby ordered and directed that the defendant serve the remainder of the two one-year sentences now in force on the public works of Gwinnett County or otherwise as the State Board of Corrections may direct, and that the probation in each sentence be revoked.'
The exceptions are to the overruling of certain demurrers to the petition to revoke the probationary features of the sentence, to the introduction of evidence, and to the judgment revoking the probation.
W. L. Nix, Lawrenceville, for plaintiff in error.
Hope D. Stark, Sol. Gen., Lawrenceville, for defendant in error.
1. It is contended by the defendant, in his demurrers to the petition and by exception to the judgment revoking the probation, that this action represents a misjoinder of causes of action, in that it was sought in one action to revoke three probated sentences in three separate and distinct cases, and that the judgment attempting to have this effect is contrary to law. As a matter of fact, only two of the cases are material to this record, the defendant having, at the time of the order of revocation, served more than 12 months on probation. Although the sentences in the original cases, which specified that they were to be served consecutively and not concurrently on probation, failed to specify the order in which they should follow one another, a sequence of service corresponding to the order of cases by number will be implied. Rosso v. Aderhold, 5 Cir., 67 F.2d 315. Accordingly, the defendant had served his sentence in case No. 4763 and was serving his sentence in case No. 4764 at the time of the violation alleged and the hearing thereon, and the court had jurisdiction, if the action was otherwise proper, to revoke the probation in case No. 4764.
As to case No. 4922, however, a different question is presented. 'One * * * serving a sentence on probation is fulfilling his sentence as effectually as if confined in jail or on the chaingang. ' Roper v. Mallard, 193 Ga. 684(2), 19 S.E.2d 525. Accordingly, and subject only to the differences inherent in the two forms of punishment, a probationary sentence is served in the same manner and subject to the rules of law relating to the service of sentences generally. One such rule is that, where the sentence expressly so states, the punishments for different offenses will be served consecutively rather than concurrently. Code § 27-2510; Long v. Stanley, 200 Ga. 239, 36 S.E.2d 785. This is equally applicable to misdemeanor cases. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305(8), 43 S.E. 780, 61 L.R.A. 739. Further, it is a general rule that, where sentences are served consecutively rather than concurrently, the second sentence does not begin until the date of termination of the first sentence, and this applies whether the period of the first sentence is shortened because of good behavior, lengthened because of an escape, or its term otherwise varied. 15 Am.Jur. 125, § 467. It follows that, where a prisoner is serving one of two or more consecutive sentences within the confines of a penitentiary, public-work camp or jail, orders relating to the nature or duration of his punishment as determined by his conduct within the penal institution affect only the sentence which he is serving, not a sentence upon which he has not yet embarked, and the same rule must apply to orders relating to the nature or duration of the defendant's punishment as determined by his conduct outside the penal institution when he is serving a probated sentence. This being so, the court should have entertained only the ...
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State v. Howland
...the second term will not begin until the prisoner is turned over to the authorities of the second designated prison.' In Jackson v. State, 91 Ga.App. 291, 85 S.E.2d 444, the court 'As to case No. 4922, however, a different question is presented. 'One * * * serving a sentence on probation is......
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Jackson v. Jones, 41965
...147 N.E.2d 782, 68 A.L.R.2d 708 (1958). 2. The state makes essentially two arguments. First, the state relies upon Jackson v. State, 91 Ga.App. 291, 85 S.E.2d 444 (1954), as the only Georgia authority on the question under review. As argued by the state, Jackson v. State, supra, does consti......
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Todd v. State
...of the unlawful acts upon which the revocation proceeding was predicated. Held: Under the ruling of this court in Jackson v. State, 91 Ga.App. 291(1), 85 S.E.2d 444 a probated or suspended sentence may be revoked provided the sentence being revoked is in effect and being served at the time ......
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Price v. State, s. 35503
...to notify the defendant of the acts upon which revocation of his probation sentences is sought. See what is written in Jackson v. State, Ga.App., 85 S.E.2d 444, on motion for 2. Under the provisions of Code, § 27-2705, supra, the examination of the defendant to determine whether he has viol......