Summary
In Simmons v. State, 96 Ga. App. 718, 719 (101 S.E.2d 111) it was held that the probated sentence must show the terms prescribed "so that a violation of such rules and regulations will revoke the parole."
Summary of this case from George v. StateOpinion
36905.
DECIDED NOVEMBER 12, 1957. REHEARING DENIED NOVEMBER 26, 1957.
Revocation of probation sentence. Before Judge Clinkscales. Gwinnett Superior Court. August 22, 1957.
Dan Copland, Mark Dunahoo, for plaintiff in error.
Alfred A. Quillian, Solicitor-General, contra.
Where a judge imposes a probated sentence, prescribing no rules and regulations to be adhered to by the parolee, the court has no authority to order the parolee incarcerated because of an alleged violation of the terms and conditions of the probation sentence.
DECIDED NOVEMBER 12, 1957 — REHEARING DENIED NOVEMBER 26, 1957.
The defendant was convicted upon the following charges: Case No. 5950 was a conviction for driving intoxicated. Case No. 5951 involved a conviction on a charge of speeding. Case No. 5952 involved a conviction for possessing dangerous drugs.
Cases Nos. 5950 and 5951 imposed a sentence of $250 and/or service on the public works and a probation sentence for a period of 12 months.
Case No. 5952 reads as follows: "Whereupon, it is considered by the court that the defendant, Marsha Jean Simmons, be put to work and labor on the public works of the County of Gwinnett or otherwise, as the State Board of Corrections may direct, for the space of 12 months, to be computed from the date of his delivery, with privilege to pay said fine and costs and be discharged at any time after entering upon such public works. Said sentence to be served on probation subject to the rules and regulations of the State of Georgia probation system and said sentence is to run consecutively and not concurrently with sentences in cases nos. 5950 and 5951 in Gwinnett Superior Court."
On August 22, 1957, the same judge of the Superior Court revoked the probated sentence in case No. 5952 by the following order: "It is hereby ordered that the probated sentence in case No. 5952 in Gwinnett Superior Court be and the same is hereby revoked and the defendant, Marsha Jean Simmons Defreese, is to be delivered to the State Board of Corrections to serve twelve months."
It will be noted that no prescribed rules or regulations are shown in the probated sentence. It is clearly the law of this State that probated sentences must show the rules and regulations prescribed so that a violation of such rules and regulations will revoke the parole. In Cross v. Huff, 208 Ga. 392 ( 67 S.E.2d 124) the Supreme Court said: "A judge imposing a sentence is granted power to suspend or probate the sentence under such rules and regulations as he thinks proper. The judge has the right and authority to revoke the suspension or probation, after notice and a hearing, when the defendant violates any of the rules and regulations prescribed by the court. Code §§ 27-2702, 27-2705, as amended by Ga. L. 1950, p. 352. Where no rules or regulations are prescribed in the alleged suspended or probated sentence, and no violation of a prescribed rule or regulation is alleged, the court is without authority to order the defendant incarcerated upon the theory that he has violated the terms and conditions of a probation sentence."
It follows that the court erred in revoking the probated sentence.
Judgment reversed. Townsend and Carlisle, JJ., concur.