Rutland v. State
| Decision Date | 07 July 1914 |
| Docket Number | 5639. |
| Citation | 82 S.E. 293,14 Ga.App. 746 |
| Parties | RUTLAND v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
As a general rule, the judgment of a court is within the breast of the court until the end of the term at which it was rendered and a sentence may be amended at any time during the term and before execution has begun; but, if the defendant has complied with or entered upon the execution of a valid sentence, it cannot be set aside and a new or different one imposed, even at the same term. A fortiori a new sentence cannot be pronounced after the term has passed and the first or original sentence has been either wholly or in part complied with, and no amendment to the judgment can take place, where to allow it would require the passing of a new sentence.
Additional Syllabus by Editorial Staff.
The difference between a sentence in a criminal case and a judgment in a civil case is that the former is but an expression of the discretion of the judge who tried the case whereas the judgment in the civil case is the result of the application of evidence upon the points involved to the law pertinent to the issue definitely made in the pleadings, and to nothing else.
Error from Superior Court, Worth County; E. E. Cox, Judge.
J. C Rutland was convicted of crime, and brings error. Reversed.
Perry, Foy & Monk, J. B. Williamson, and Tison & Bell, all of Sylvester, for plaintiff in error.
R. C. Bell, Sol. Gen., of Cairo, J. H. Tipton and L. D. Passmore, both of Sylvester, and Little, Powell, Hooper & Goldstein, of Atlanta, for the State.
The question raised in this case is whether it is within the power of a judge of the superior court, after the adjournment of the term at which the sentence was imposed, to alter or amend a sentence entered upon the minutes of the court; and especially whether it is within his power, by a modification of the sentence, to increase the penalty imposed by a previous sentence which was valid and in accordance with, and authorized by, the verdict. The precise point does not seem to have been adjudicated by the Supreme Court of this state, though it has been dealt with by numerous courts of last resort in other jurisdictions. In Plain v. State, 60 Ga. 284, Judge Bleckley pointed out that a prisoner cannot complain that his sentence is mitigated or reduced from a term which is within the limits prescribed by law, because the change is a boon to the defendant and for his benefit; and the case of Jobe v. State, 28 Ga. 235, is cited. However, neither in Jobe's Case nor in the Plain Case, supra, had the judgment orally pronounced by the court been entered upon the minutes; and in both cases the alteration of the sentence was made before the adjournment of the term during which the trial was had, and the change was made, therefore, while the judgment, even if entered upon the minutes, would still, in legal contemplation, have been lodged in the breast of the judge. And likewise in Meaders v. State, 96 Ga. 299, 22 S.E. 527 (), the Supreme Court, while disapproving the imposition of a severer penalty based upon the reason assigned by the trial judge, specifically affirmed that the right of the judge to change the sentence as he did (even if there had been good cause for the change) rested upon the general rule that:
"Judgments of a court are within its breast until the end of the term, and a sentence may be amended at any time during the term and before execution has begun."
In the case at bar, as disclosed by the record of the superior court of Worth county, the defendant was sentenced to "be placed and confined at labor in the chain gang * * * for and during the full term of 12 months, and 6 months in jail; provided that the defendant be relieved of said chain gang and jail sentence after serving 6 months in the chain gang, upon the payment of $500, without costs of said case; payment to be made instanter." The sentence further provided, in accordance with the act approved August 16, 1913 (Acts of 1913, p. 112), that "upon the payment of said fine the defendant should be allowed to serve said sentence of 18 months as above stated outside the confines of said chain gang or other place of detention," upon terms thereafter fully set forth in the sentence (relating to good behavior, reports to probation officer, etc.). The offense charged was a misdemeanor. The sentence imposed was within the discretion with which the court was clothed. After the imposition of the sentence, and upon the same day, the superior court of Worth county adjourned for the term, and shortly thereafter the defendant paid the fine of $500 and reported to the probation officer. The sentence as imposed, so far as its contents could be authenticated by the minutes of the court, was fully executed, unless the defendant, by subsequent bad conduct, should bring himself within the penalties of which the sentence was intended to hold him in terrorem. On March 12, 1914, the solicitor general filed a petition asking that the sentence upon the minutes be corrected so as to conform to a previous oral pronouncement of sentence alleged to have been uttered by the court, and alleging that the provision relating to 18 months' service under the probation officer, without labor or imprisonment, had been incorporated by mistake, in the hurry incident to the hasty adjournment of the court. The court was not at that time in session, but the petition filed by the solicitor general contained a prayer that the judge would call a special term of court for the purpose of determining the merit of the petitioner's motion to amend the judgment and sentence.
In response to the petition the court, in vacation, issued a rule calling upon the defendant to show cause why the judgment should not be corrected so as to make it speak the truth of the sentence orally pronounced by the court, and calling a special term of the court, to be held on March 14, 1914, "for the purpose of entertaining, hearing, and passing upon said petition and motion, and for the transaction of any and all other business pertaining to the subject-matter thereof that may come or be brought to the attention of the court and the judge thereof." On March 14, 1914, at the special term above referred to, after hearing evidence as to the clerical preparation of the sentence sought to be set aside, and after a statement by the judge himself as to what transpired, and that it was his intention to sentence the prisoner in accordance with a written memorandum which had been kept by the clerk, and that the sentence as signed by him was signed without reading the whole of it, the judge passed an order so amending the sentence that, although the defendant had paid the $500 fine, he would only be permitted to avail himself of serving the sentence under the surveillance of the probation officer after he had served six months at hard labor upon the public works, in the chain gang. In other words, under the sentence as it appeared upon the minutes of the January adjourned term of Worth superior court, the defendant had the option of serving the entire sentence of 18 months in the merely constructive custody of the probation officer, without labor or imprisonment, whereas, under the sentence as amended by the judgment at the special term, he could only exercise this option for 12 months after having worked six months in the chain gang, with the result that the change in the sentence practically amounts to the imposition of a sentence of 6 months' service in the chain gang in addition to the penalty imposed by the original sentence entered upon the minutes before the adjournment of the court.
We are clear in the opinion that the court erred in amending the sentence. It is greatly to be doubted whether section 4876 of the Civil Code confers upon a judge of the superior court the power to call a special term of court for the purpose of amending a sentence in a criminal case. The language of the Code section as to special terms is that:
"Such judges are authorized to hold special terms of said courts for the trial of criminals, or for the disposition of civil business, either or both."
Certainly the amendment of the sentence in a criminal case, if permissible at all, cannot be said to be civil business, nor can it be said to be the trial of a criminal; for, while the imposition of sentence is one of the incidents of a criminal trial, it is also the conclusion and ultimate incident of the trial, and, while the whole necessarily includes all of the parts, the sentence cannot, in legal contemplation, be considered the equivalent of a criminal trial, nor can it be supposed that it was so considered by the General Assembly at the time of the passage of the act of 1890-91 (Acts of 1890-91, p. 74).
Should we seek to treat the proceeding filed in the present instance as being a proceeding similar in its nature to a motion to set aside a judgment, many points of dissimilarity between the incidents and the consequences of civil and criminal proceedings at once suggest themselves. But even were this a civil case, we should hardly hold it to be equitable to permit the state, as one of the parties, to retain $500 paid by the opposite party upon a judgment declaring that upon its instant...
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