Lester v. Foster
| Decision Date | 14 February 1951 |
| Docket Number | No. 17367,17367 |
| Citation | 63 S.E.2d 402,207 Ga. 596 |
| Parties | LESTER v. FOSTER, Sheriff. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where, upon conviction in a criminal case, the defendant has been sentenced by the court, and either placed on probation or his sentence suspended--thereby having the effect of placing such defendant on probation--he is entitled to a notice and hearing before the probation feature or suspension of his sentence can be revoked.
This is a habeas corpus case, in which the petitioner sought his release from the custody of the Sheriff of Fulton County, wherein it appears that, after his conviction of a misdemeanor, a sentence was imposed upon him and suspended by the trial court, and that thereafter, without notice, or an opportunity to be heard, and in the absence of the petitioner, the court which imposed the sentence revoked its suspension and ordered the defendant placed in the custody of the proper authorities to serve the sentence, and that he was being detained by the sheriff under this order. The trial court denied the petition for habeas corpus and remanded the petitioner to the custody of the sheriff, and to this judgment he excepts.
Wilbur B. Nall, A. Tate Conyers, Atlanta, for plaintiff in error.
Paul Webb, Sol.-Gen., John I. Kelley and William Hall, all of Atlanta, for defendant in error.
HAWKINS, Justice (after stating the foregoing facts).
The trial court evidently based the judgment in this case upon the decision of this court in Mincey v. Crow, 198 Ga. 245, 31 S.E.2d 406, wherein it was held: 'The revoking of a suspended sentence, the effect of which is to require service of the unexpired portion thereof, may be done with or without cause, and in the absence of the accused.' That decision is authority for the ruling here complained of, but counsel for the plaintiff in error have requested that it be reviewed and overruled. That request is granted. An examination of that opinion will disclose that it is predicated upon the decision of the Court of Appeals in Wood v. State, 68 Ga.App. 43, 21 S.E.2d 915, and Streetman v. State, 70 Ga.App. 192, 27 S.E.2d 704. An examination of the Wood case will disclose that the question here presented was not there involved, for the record discloses that the defendant was given notice and a hearing before the suspension of that sentence was revoked. The questions for determination there were whether the defendant could be required to serve the entire sentence or only the unexpired portion thereof, and whether the act of 1933, now Code, § 27-2706, was repealed by the act of February 16, 1938, Ga.L.Ex.Sess.1937-1938, p. 326, or by the act of March 24, 1939, Ga.L.1939, p. 285, Code Ann.Supp. § 27-2525 et seq. The Court of Appeals there held, and we think properly so, that the act of 1933, Code, § 27-2706, was not repealed, but was of force; and in the course of the opinion held that, since the original sentence there imposed was suspended 'until further order of the court,' this provision of the sentence sufficiently complied with the provisions of Code § 27-2702 (), to authorize the court to use its discretion in revoking; and that the trial court had authority to compel the defendant to serve any portion of it remaining within the limits of twelve months next succeeding the date of the sentence, but not the entire sentence; and that the trial court could do this 'with or without cause.' Whether the trial court could revoke the suspension 'with or without cause' was not involved in that case, and this language was purely obiter. The other case of Streetman v. State, 70 Ga.App. 192, 27 S.E.2d 704, supra, did involve the question of whether a suspension could be revoked without notice or hearing, and held that it could be so revoked, and cited the Wood case, supra, as the only authority for such holding. Both the Court of Appeals in the Streetman case and this court in the Mincey case overlooked and failed to give effect to the act of 1933, now Code, § 27-2706, which specifically...
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Williams v. Com.
...28 F.Supp. 625) (conditional pardon). Brill v. State, 159 Fla. 682, 684--685, 32 So.2d 607 (suspended sentence). Lester v. Foster, 207 Ga. 596, 598--599, 63 S.E.2d 402 (suspended sentence). Cross v. Huff, 208 Ga. 392, 398, 67 S.E.2d 124 (suspended sentence). People ex rel. Joyce v. Strasshe......
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...to afford the probationer such notice and a hearing would render a revocation order void for lack of due process of law. Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402. However, a hearing on a revocation '* * * is not a trial on a criminal charge * * *.' and the probationer has no right to a ......
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In re N.M., A12A0758.
...an ineffective assistance of counsel claim); In the Interest of B.C., 169 Ga.App. at 202, 311 S.E.2d 857 (citing Lester v. Foster, 207 Ga. 596, 597, 63 S.E.2d 402 (1951), for the proposition that a juvenile court may not revoke probation sua sponte, and Scott v. State, 131 Ga.App. 504, 206 ......
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...698; Ledford v. State, 107 Ga.App. 244, 248, 129 S.E.2d 555; Dockery v. Parks, 117 Ga.App. 589, 590, 161 S.E.2d 406; Lester v. Foster, 207 Ga. 596, 63 S.E.2d 402; Nuckolls v. Merritt, 216 Ga. 35, 114 S.E.2d Under the facts of this case a rebuke is especially required. If the Code section is......