Opinion
38039.
DECIDED OCTOBER 16, 1959.
This is an application for writ of mandamus on behalf of Raymond Bennett to require the judge of the Superior Court of Dade County to grant an order superseding the sentence imposed by the judge of that court in a misdemeanor case. It appears from the petition that the applicant entered a plea of guilty before the court to the offense of possessing non-tax-paid liquor; that after the entry of the plea the court ordered a presentence investigation by the probation officer, after which the sentence was imposed; that thereafter, and within the same term of the court, the applicant moved the court to vacate the sentence and permit him to withdraw his plea of guilty and enter a plea of not guilty; that the court issued a rule nisi ordering the State to show cause why this motion should not be granted, set the matter for hearing, and entered an order denying the motion; that thereupon the applicant tendered a bill of exceptions complaining of the denial of the motion which was approved, certified and signed by the trial judge; that this bill of exceptions is now pending in this court and applicant seeks a mandamus absolute here to require the Judge of the Superior Court of Dade County to grant a supersedeas pending a decision by this court of the question presented by the writ of error. The trial judge acknowledges receipt of the application for mandamus and waives notice of the filing of the writ in this court, the rule nisi thereon, the answer thereto, the notice of hearing thereon, and agrees that this court may pass upon the question presented by this application upon the facts set forth therein, without any further order, notice, rule or showing.
Moore Wild, Cook Palmour, for petitioner.
It is the duty of the trial judge after certifying a bill of exceptions assigning error on a judgment overruling a timely motion by the defendant to vacate a plea of guilty and enter a plea of not guilty in a misdemeanor case to fix the amount of a bond which when properly executed and approved by the clerk of the court will set the defendant at liberty pending the decision of the appellate court on the issues presented by the writ of error of the defendant.
DECIDED OCTOBER 16, 1959.
1. Code § 27-901 provides as follows: "Capital offenses are bailable only before a judge of the superior court; and this is, in every case, a matter of sound discretion. All other cases are bailable by the committing court. At no time, either before the commitment court, when indicted, after a motion for a new trial is made, or while a bill of exceptions is pending, shall any person charged with a misdemeanor be refused bail." This is a misdemeanor. Under the above Code section the applicant is entitled to bail while his bill of exceptions is pending in this court. See Allen v. Pratt, 87 Ga. App. 704 ( 75 S.E.2d 329) and cases there cited. Under Code § 6-1005 the bill of exceptions which is pending here operates as a supersedeas upon the applicant entering into a recognizance before the clerk with security to be approved by him in a sum to be fixed by the presiding judge conditioned for the appearance of the applicant to abide the final sentence of the court.
2. Accordingly it is the duty of the trial judge to fix bail in accordance with Code § 6-1005, following which the applicant will be authorized to enter into a recognizance before the clerk with security to be approved by her and be thence released from custody to abide the final sentence of the court.
The clerk of this court is directed to issue a mandamus absolute directed to the trial judge in accordance with this decision.
All the Judges concur.