State v. Collett

Citation208 S.E.2d 472,232 Ga. 668
Decision Date04 September 1974
Docket NumberNo. 28967,28967
PartiesThe STATE v. Vannette COLLETT.
CourtSupreme Court of Georgia

Ralph Kearns, Sam Huff, Asst. Dist. Attys., Thomas J. Browning, Marietta, for appellant.

Albert M. Horn, Lawrence L. Schneider, Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

Certiorari was granted to review a 5-4 decision of the Court of Appeals, 131 Ga.App. 411, 206 S.E.2d 70 in which the majority concluded that banishment of the defendant from seven counties in Georgia, imposed as a condition for suspension of a sentence by the trial court, violates the public policy of the state. We have determined the decision by the Court of Appeals must be reversed.

The 1945 Georgia Constitution (Code Ann. § 2-107, art. I, § I, par. 7) expressly forbids banishment beyond the limits of the state. This provision was placed in the 1877 Constitution of Georgia and subsequently included in the present Constitution in the same language. The question presented is whether the 1877 drafters of this constitutional provision intended to prohibit banishment 'beyond the limits of the State' but not to prohibit banishment from specified areas within the state.

Author Walter McElreath makes this historical comment about the banishment section: 'Transportation or banishment for crime was unknown to the common law, but in England by statute some felonies were so punishable. Neither banishment nor whipping were within the meaning of 'cruel and unusual punishment,' as used in the Act of Settlement from which these words were taken, nor were they understood as such when Georgia became an independent state, and they are, therefore, not prohibited by the provisions . . . of this section (which prohibit cruel and unusual punishment), and the foregoing paragraph was inserted in the (1877) Constitution to add banishment and whipping to the class . . . which the englightened humanity of the present day regards as, in fact, cruel.' McElreath, On the Constitution of Georgia, The Harrison Company (publisher), p. 442 (1912). 1

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Dr. Ethel K. Ware, in A Constitutional History of Georgia, 2 makes this observation about the banishment provision included in the 1877 Constitution: 'Certain other subjects which might . . . better have been left to the legislature were nevertheless imbedded in the organic law: the abolition of whipping and of banishment as punishment for crime, . . .'

Thus, we see that the historical policy of the state prohibits banishment from the state and this policy is firmly fixed in our fundamental law. The suspension condition imposed in the sentence in the present case is within the broad definition of banishment as that term generally has been used in legal writings. However, the drafters of our constitutional prohibition against banishment limited this general definition by choosing to define banishment more narrowly to mean only banishment beyond the limits of the state. Neither the constitutional authors nor the legislature has addressed the question of 'banishment' from designated areas within the state as a condition of suspension of a sentence. The legislature has expressed a policy with respect to conditions of probation. Code Ann. § 27-2711 provides the court may require the probationer to 'remain within a specified location,' in addition to compliance with other conditions set forth in the statute. The majority of the Court of Appeals has reasoned that the form of banishment used to suspend the sentence in the present case should be prohibited in Georgia. Perhaps this is true, but we believe that if it is to be absolutely prohibited, it must be done by the legislature. There presently is no statute in Georgia providing conditions for suspension of a sentence except Code Ann. § 27-2502 which gives the trial judge authority to suspend or probate a sentence under such rules and regulations as the judge deems proper. Ga.L.1974, p. 354.

The probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement. E.g., see, Davis v. State, 53 Ga.App. 325, 329, 185 S.E. 400; Gay v. State, 101 Ga.App. 225(1), 113 S.E.2d 223; O'Quinn v. State, 121 Ga.App. 231(3), 173 S.E.2d 409; Falkenhainer v. State, 122 Ga.App. 478, 177 S.E.2d 380; Cross v. Huff, 208, Ga. 392, 67 S.E.2d 124.

The defendant in the present case has made only a general...

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    • United States
    • Georgia Supreme Court
    • 15 Marzo 2010
    ...S.E.2d 574 (1987) (dissent); Ga. Power Co. v. Allied Chemical Corp., 233 Ga. 558, 566(2), 212 S.E.2d 628 (1975); State v. Collett, 232 Ga. 668, 669, fn. 1, 208 S.E.2d 472 (1974); Leggett v. Macon Baptist Assn., 232 Ga. 27, 30(II), 205 S.E.2d 197 Speer v. Martin, 163 Ga. 535, 541, 136 S.E. 4......
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    • 18 Mayo 2016
    ...76 Cal.App.2d 648, 173 P.2d 825, 826 (1946).16 Beavers v. State, 666 So.2d 868, 872 (Ala.Crim.App.1995).17 State v. Collett, 232 Ga. 668, 208 S.E.2d 472, 473 (1974) ; People v. Baum, 251 Mich. 187, 231 N.W. 95, 96 (1930).18 Though Justice Brewer's dissent lacks “value as precedent,” it is “......
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    • United States
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    ...area as a condition of suspension of the sentence was held by this court to violate public policy. However, in State v. Collett, 232 Ga. 668, 208 S.E.2d 472, the judgment of the Court of Appeals was reversed, the Supreme Court stating at page 671 as follows: "When this (banishment from the ......
  • Ray v. McCoy
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    ...policy of the state prohibits banishment from the state and this policy is firmly fixed in our fundamental law." State v. Collett, 232 Ga. 668, 669, 208 S.E.2d 472, 473 (1974). West Virginia prisoners, incarcerated in federal facilities in West Virginia, who are punished for breaking prison......
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1 books & journal articles
  • Anti-prostitution zones: justifications for abolition.
    • United States
    • Journal of Criminal Law and Criminology Vol. 91 No. 4, June 2001
    • 22 Junio 2001
    ...(La. 1980) (upholding defendant's banishment from the French Quarter). (90) See Snider, supra note 84, at 495. (91) See State v. Collett, 208 S.E.2d 472, 474 (Ga. (92) See generally United States v. Lowe, 654 F.2d 562 (1981) (acknowledging that condition of probation barring defendants from......

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