Opinion
36656.
DECIDED APRIL 8, 1957.
Petition to correct sentences. Before Judge Foster. Haralson Superior Court. October 17, 1956.
D. B. Howe, Harold L. Murphy, for plaintiff in error.
Robert J. Noland, Solicitor-General, James I. Parker, Assistant Solicitor-General, contra.
The sentence in the instant case are full, complete, clear, definite and unambiguous, and were passed during the term of court at which the pleas of guilty were entered. The sentences were complied with by the defendant before the petition to change the sentences was filed by the solicitor-general. It follows that the court was without authority to change the written sentences at a subsequent term of the court.
DECIDED APRIL 8, 1957.
R. J. Noland, as Solicitor-General of the Superior Court of Haralson County on October 17, 1956, during the July term of the said Superior Court of Haralson County, petitioned Judge W. A. Foster, Jr., of the said court, seeking to change two written and signed sentences imposed by the court on January 20, 1956, so that the said written sentences would conform to oral pronouncements of the court, said oral pronouncements having been made prior to the time the written sentences were passed and signed. There were two indictments, each charging the defendant with public drunkenness. One indictment was numbered 1870 and the other 1877. The sentence signed by the court relating to indictment 1870 reads: "Whereupon, it is ordered, considered and adjudged by the court that the defendant aforesaid do serve and be confined in the chaingang of this State on public works of said county, or such other county as the proper authorities may direct for the full term of three months, to be computed from the date of his delivery to such chaingang authorities, and six months to be served on probation. It is further ordered that upon payment by said defendant of the sum of costs — dollars, and including the cost of this prosecution at any time before the expiration of this sentence, that he be released from any further service of this sentence. This 20 day of January, 1956. Robert J. Noland, Solicitor-General. Tal. Circuit. W. A. Foster, Jr., Judge, S.C.T.C."
The sentence relating to indictment 1877 reads: "Whereupon, it is ordered, considered and adjudged by the court that the defendant aforesaid do serve and be confined in the chaingang of this State on public works of said county, or such other county as the proper authorities may direct for the full term of three months, to be computed from the date of his delivery to such chaingang authorities. This sentence to run consecutive to sentence in case 1870. An additional six months to be served on probation at expiration of this sentence. It is further ordered that upon payment by said defendant of the sum of costs — dollars, and including the cost of this prosecution at any time before the expiration of this sentence, that he be released from any further service of this sentence. This 20 day of January, 1956. Robert J. Noland, Solicitor-General, Tal. Circuit. W. A. Foster, Jr., Judge, S.C.T.C."
On the hearing the solicitor-general testified for the State as follows: "I am Solicitor-General of the Tallapoosa Judicial Circuit. I was serving as solicitor-general on January 20, 1956, when James Martin White entered pleas of guilty in cases numbered 1870 and 1877 in Haralson Superior Court. I remember the oral pronouncement of sentence in each case as made by the court. In case number 1870 the oral sentence pronounced was `Let the defendant pay the cost or serve three months and upon payment of costs let the defendant serve six months on probation.' In case number 1877 the oral sentence pronounced was `Let the defendant pay the costs or serve three months on probation and upon payment of the costs let the defendant serve six months on probation. This sentence to follow the sentence in case number 1870.' The clerk prepared the sentences in each case at my direction. In the rush of business at the January term of Haralson Superior Court we mistakenly prepared and presented to the court the sentences signed in each of these cases and through mistake, inadvertence and the rush of business the sentences were not in conformity with the oral sentences as pronounced by the court."
The court stated: "I do not recall the cases. I do not remember the oral sentences pronounced. I cannot say whether or not the sentences as signed by me in January were as intended to be imposed by the court on the defendant at the time they were signed."
The defendant testified: "I am James Martin White, the defendant. I do not remember the oral sentence in either case. I paid the cost in each case. I was under the impression that when I paid the cost the cases were completely over and disposed of."
It is stipulated by counsel for each party that the January term, 1956, of the Superior Court of Haralson County expired five days prior to the July term, 1956, of the Superior Court of Haralson County and that the July term of said court began on July 16, 1956. It was further stipulated that the costs in each case had been paid in accordance with the written sentences.
On October 17, 1956, the judge passed an order attempting to change the written sentences to conform to the oral pronouncements contended for by the solicitor-general. The original written sentences were admitted in evidence over objections of the defendant. The original indictments in each case were admitted without objections.
The defendant filed an answer alleging that the written sentences were clear, definite, and unambiguous, that the sentences had been complied with and terminated and that changing the sentences would amount to double jeopardy of the defendant.
The defendant, by a direct bill of exceptions, brings the case to this court for review. The question for determination is: Did the court err in entering an order during the July term, 1956, changing the sentences imposed at the January term, 1956.
In Cooley v. Dixon, 149 Ga. 506 (1) ( 101 S.E. 181) the Supreme Court said: "R. Cooley was convicted of a misdemeanor, in the City Court of Savannah; and the following sentence was imposed: `Whereupon it is considered and ordered that the said defendant do pay a fine of $500.00 and costs, and be discharged on payment thereof; but if the said defendant fail to pay the said fine and costs, it is ordered that in lieu thereof he be, for the space of 6 months, imprisoned in the common jail of Chatham County, and be put to work and labor in the chaingang of Chatham County, for space of 12 months, the 12 months on chaingang to be probated.' Properly construed, the meaning of the sentence is that if the defendant should pay a fine of $500, and costs, he should be discharged on payment thereof, and that such payment would be an entire satisfaction of the sentence. Dixon v. Baughn, 149 Ga. 86 ( 99 S.E. 34)."
In Porter v. Garmony, 148 Ga. 261 (1) ( 96 S.E. 426) the following appears: "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 chaingang, 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."
The headnote of Rutland v. State, 14 Ga. App. 746 ( 82 S.E. 293) reads: "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 can not be set aside and a new or different one imposed, even at the same term. A fortiori, a new sentence can not 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."
In Freeman v. Brown, 115 Ga. 23, 27 ( 41 S.E. 385) the following appears: "The oral announcement of the judge was no judgment . . . What the judge orally declares is no judgment until it has been put in writing and entered as such." The Court of Appeals quoted this principle of law from the Freeman case in writing Rutland v. State, supra. The sentences in the instant case are full, complete, clear, definite and unambiguous and do not fall within the ruling of the following cases: Pulliam v. Jenkins, 157 Ga. 18 ( 121 S.E. 679); Merritt v. State, 122 Ga. 752 ( 50 S.E. 926); Tyler v. State, 125 Ga. 46 ( 53 S.E. 818); Wright v. Wood, 178 Ga. 273 (2) ( 173 S.E. 138); Stansell v. State, 30 Ga. App. 658 ( 119 S.E. 419); Farmers Mutual Fire Ins. Co. v. Pollock, 52 Ga. App. 603 ( 184 S.E. 383).
The judge was without authority to change the written sentences at a subsequent term of the court in view of the complete contents of the sentences.
Judgment reversed. Townsend and Carlisle, JJ., concur.