Plunkett v. Miller

• Decision Date: 21 December 1925
• Docket Number: 5090.
• Citation: 131 S.E. 170,161 Ga. 466
• Parties: PLUNKETT, SHERIFF, v. MILLER.
• Court: Georgia Supreme Court

131 S.E. 170

161 Ga. 466

PLUNKETT, SHERIFF, v. MILLER.

No. 5090.

Supreme Court of Georgia

December 21, 1925

Syllabus by Editorial Staff.

In view of Acts 1913, p. 114, § 4, being Park's Ann. Pen. Code, § 1081(d), where probationer fails to observe prescribed rules he may at any time prior to final disposition of his case while in custody of officer, be brought without warrant before the court, or court may issue warrant for his arrest and when duly brought before the court, it, after due examination, may revoke its leave to him to serve sentence outside the chain gang or place of detention.

Method of revocation of probation prescribed by Acts 1913, p. 114, § 4, being Park's Ann. Pen. Code, § 1081(d), is exclusive, and cannot be dispensed with by provision in original sentence that probation shall be ipso facto revoked by failure to observe prescribed rules.

Due examination provided by Acts 1913, p. 114, § 4, being Park's Ann. Pen. Code, § 1081 (d), requires that probationer be given notice and opportunity to be heard on question whether his parole shall be revoked.

In view of Acts 1913, p. 114, § 4, being Park's Ann. Pen. Code, § 1081 (d), an order revoking a parole in defendant's absence, without notice and an opportunity to be heard, is null and void.

Where defendant was sentenced to chain gang but placed on probation, order revoking parole and directing that she serve remainder of sentence at state farm held void, on ground that judge could not lawfully change original sentence after it had been partially executed.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Petition for a writ of habeas corpus by Mary Miller against J. T. Plunkett, Sheriff. Application was sustained and petitioner ordered discharged from custody, and defendant brings error. Affirmed.

A. R. Williamson, C. Vernon Elliott, and H. A. Woodward, all of Augusta, for defendant in error.

Syllabus OPINION.

HINES J.

1. The method of revoking a probation granted to a convicted defendant is fixed by our probation law. In case such defendant fails to observe all rules prescribed by the court for his conduct, to report to the probation officer as directed, and to maintain a correct life, he may, at any time prior to the final disposition of the probationer's case, while in the custody of such officer, be brought without warrant before the court, or the court may issue a warrant directing that he be arrested and brought before it; and when such defendant is brought before the court, the court, after due examination, may revoke its leave to probationer to serve his sentence outside of the confines of the chain gang, jail, or other place of detention. Acts 1913, pp. 112, 114; Park's Pen. Code, § 1081 (d).

2. This method of revocation of the probation of a convicted defendant, being prescribed by statute, is exclusive, and cannot be dispensed with by...