Jackson v. State
Jackson v. State
070rehearing
On motion for rehearing it is contended by the plaintiff in error that this court did not specifically pass upon special demurrers to the petition of the solicitor-general, praying that the court revoke the defendant’s probationary sentences; and that, in holding that the petition was subject to objection on the ground of misjoinder, this court should have further held that everything which happened subsequently to the erroneous ruling of the trial court on demurrer was nugatory, and should have reversed the sentence of revocation as to both cases instead of only the sentence which the defendant was not yet serving.
Code § 27-2705, dealing with revocation of probation sentences, does not require that any petition for revocation be filed by the solicitor-general or anyone else. The proceeding is initiated under Code provision, either by (a) the probation officer bringing the offender into court (without necessity for a warrant) , or (b) under a warrant issued by the court directing that the defendant be arrested and brought before it. It is general practice in this State, and sound practice, for the warrant to be issued by the court on a written petition calling to the court’s attention the alleged delinquency, but the only Code requirement is that the defendant receive “due examination,” which means that he be given notice and an opportunity to be heard. Balkcom v. Gunn, 206 Ga. 167 (56 S. E. 2d 482); Lester v. Foster, 207 Ga. 596 (63 S. E. 2d 402). There being no requirement that the proceeding be initiated by written petition of the solicitor-general, technical defects in such a petition when filed would not vitiate the warrant issued by the court or subsequent proceedings thereon, provided the requirements of notice and opportunity to be heard are complied with, as they were in this case. The petition is in the nature of a memorandum to the court for its information in deciding whether a warrant should be issued. If relied upon to show notice to the defendant, it must be sufficiently definite to fulfill this function. Of course, where it appears that the information contained in the petition is that upon which the warrant is issued, and where the allegations thereof are insufficient to show a violation of the probation sentence, under such circumstances the question of whether or not a violation of the probation sentence is charged may be tested by a motion to strike the petition and warrant based thereon, or by a general
Opinion of the Court
It is contended by the defendant, in his demurrers to the petition and by exception to the judgment re-
As to case No. 4922, however, a different question is presented. “One . . . serving a sentence on probation is fulfilling his sentence as effectually as if confined in jail or on the chaingang.” Roper v. Mallard, 193 Ga. 684 (2) (19 S. E. 2d 525). Accordingly, and subject only to the differences inherent in the two forms of punishment, a probationary sentence is served in the same manner and subject to the rules of law relating to the service of sentences generally. One such rule is that, where the sentence expressly so states, the punishments for different offenses will be served consecutively rather than concurrently. Code § 27-2510; Long v. Stanley, 200 Ga. 239 (36 S. E. 2d 785). This is equally applicable to misdemeanor cases. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305 (8) (43 S. E. 780, 61 L. R. A. 739). Further, it is a general rule that, where sentences are served consecutively rather than concurrently, the second sentence does not begin until the date of termination of the first sentence, and this applies whether the period of the first sentence is shortened because of good behavior, lengthened because of an escape, or its term otherwise varied. 15 Am. Jur. 125, § 467. It follows that, where a prisoner is serving one of two or more consecutive sentences within the confines of a penitentiary, public-work camp or jail, orders relating to the nature or duration
It was not error to allow the sentence in case No. 4763 to be introduced in evidence at the revocation hearing. The condition of probation in that sentence, that “defendant not violate any laws,’’ is sufficient, when supported by evidence, to authorize a revocation of the probation. Blaylock v. State, 88 Ga. App. 880 (4) (78 S. E. 2d 537). The introduction of the sentences in the other two cases, to which objection is also made, could not have been harmful to the movant.
The evidence was ample to sustain the judgment of revocation, there being testimony that the defendant was found at his still in Walton County making liquor in March, 1954, together with a certified copy of his plea of guilty to an accusation charging him with that offense.
The judgment of the trial court revoking the probationary feature of the sentences of the defendant is affirmed insofar as it relates to case No. 4764, sentence in which the defendant was serving at the time of the revocation proceedings, and is reversed as to case No. 4922.
Judgment affirmed in part and reversed in part.
Reference
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- Jackson v. the State
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