Porterfield v. State, 52488
| Decision Date | 13 September 1976 |
| Docket Number | No. 52488,No. 3,52488,3 |
| Citation | 139 Ga.App. 553,228 S.E.2d 722 |
| Parties | B. R. PORTERFIELD v. The STATE |
| Court | Georgia Court of Appeals |
Jack H. Affleck, Robert D. Peckham, Athens, for appellant.
Harry N. Gordon, Dist. Atty., F. B. Tyler, Jr., Asst. Dist. Atty., Athens, for appellee.
The defendant was indicted, tried and convicted for violation of the Georgia Controlled Substances Act. He was sentenced to 10 years, 3 years to be served in confinement, the balance on probation. On appeal to this court his conviction was affirmed. Porterfield v. State, 137 Ga.App. 449, 224 S.E.2d 94. Afterwards, he filed a motion to modify his sentence. After a hearing, the trial judge entered an order which recited: '. . . the Court adjudges that since the term of court at which sentence was imposed and expired prior to the filing of this motion, it lacks jurisdiction to modify the sentence; and that this is true irrespective of the fact that the case was appealed and the case affirmed and this motion was made, at the same term of court at which the remittitur from the Court of Appeals was filed in this Court.' Appeal was taken from that decision. Held:
Code Ann. § 27-2502 (Ga.L.1974, pp. 352, 354) recites: 'After the term of court at which the sentence is imposed by the judge, he shall have no authority to suspend, probate, modify or change the sentence of said prisoner, except as otherwise provided.'
In Porter v. Garmony, 148 Ga. 261(1), 96 S.E. 426, the Supreme Court held: 'Where one accused of a misdemeanor was convicted, and at the term at which the trial took place was sentenced to serve a term in the chain gang, and the accused carried the case by writ of error to the Court of Appeals, where the judgment of the lower court was affirmed, the trial court was without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the sentence formerly imposed; and where he did pass an order modifying and changing the sentence, such order was void, as the court was without jurisdiction to alter the sentence originally imposed.'
Here the defendant argues that he was forced to choose between appealing and filing a motion to modify; that literally applying the statutory language acts to deprive him of his constitutional rights. We find: 1) the language of the statute is clear and unambiguous; 2) there was no constitutional attack made on the statute; 3) there is...
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Gray v. State
...within the term of court and that "a motion made during the term serves to extend the power to modify." Porterfield v. State , 139 Ga. App. 553, 554, 228 S.E.2d 722 (1976) (physical precedent only).3 As explained in United States v. Mayer , 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914), the......
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Gray v. State
...defendant, except as otherwise provided by law.") (emphasis supplied); see also Ga. L. 1991, p. 310, § 1.4 See Porterfield v. State , 139 Ga. App. 553, 554, 228 S.E.2d 722 (1976) (noting, after discussing Ga. Code Ann. § 27-2502, that "a motion made during the term serves to extend the powe......
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State v. Fredericks, A02A0193.
...a judgment after the term expires, a motion made during the term serves to extend the power to modify. (Cit.)' Porterfield v. State, 139 Ga.App. 553, 554, 228 S.E.2d 722 [(1976)]." Doby v. Evans, 258 Ga. 777(2), 373 S.E.2d 757 (1988). See also Platt v. State, 200 Ga.App. 784, 409 S.E.2d 878......
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Tyson v. State
...the term expires, a motion made during the term serves to extend the power to modify." (Citation omitted.) Porterfield v. State, 139 Ga.App. 553, 554, 228 S.E.2d 722 (1976). See State v. Fredericks, 256 Ga.App. 401, 402-403, 568 S.E.2d 489 (2002); State v. Bradbury, 167 Ga.App. 390, 392(4),......