State v. Collett
State v. Collett
Opinion of the Court
Certiorari was granted to review a 5-4 decision of the Court of Appeals 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) 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
Dr. Ethel K. Ware, in A Constitutional History of Georgia,
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
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 cáses as an alternative to confinement. E. g., see, Davis v. State, 53 Ga. App. 325, 329 (185 SE 400); Gay v. State, 101 Ga. App. 225 (1) (113 SE2d 223); O’Quinn v. State, 121 Ga. App. 231 (3) (173 SE2d 409); Falkenhainer v. State, 122 Ga. App. 478 (177 SE2d 380); Cross v. Huff, 208 Ga. 392 (67 SE2d 124).
The defendant in the present case has made only a general attack on the present sentence as being illegal, contending it is per se violative of public policy. There has been no showing in this case that the imposed condition to remain outside the seven specified counties for the
period of the sentence (12 months) is unreasonable or otherwise fails to bear a logical relationship to the rehabilitative scheme of the sentence pronounced for this drug crime. Cf., Inman v. State, 124 Ga. App. 190 (183 SE2d 413). When this is considered against the background of the power and authority a trial judge has under the law to suspend a sentence under such rules and regulations as he deems proper, we cannot agree the present sentence "is illegal and void,” as contended by the defendant. It has not been shown the trial judge abused his discretion in this case, and, therefore, the judgment of the Court of Appeals must be reversed.
Judgment reversed.
Pertinent notes of the Constitutional Convention, relating to this section of the Constitution, provide:
"Section 22 was read as follows:
" '22. Banishment beyond the limits of the state, as a punishment for crime, shall not be allowed.’
"Mr. Wilson. I move to amend by inserting 'neither’ before 'banishment,’ and add after it 'nor whipping,’ and striking out 'not,’ so that the section will read as follows:
" 'Neither banishment beyond the limits of the state, nor whipping, as a punishment for crime, shall be allowed.’
"The amendment was received.
"Section 22 was read and agreed to.”
(Small, A Stenographic Report of the Proceedings of the Constitutional Convention; Constitution Publishing Co., p. 91 (1877)).
Ware, A Constitutional History of Georgia, Columbia University Press, p. 164 (1947).
Dissenting Opinion
dissenting.
In my opinion banishment from a county as a condition for suspension of a sentence is against public policy because it would permit one county to relegate its criminals to other counties and thereby create dissension, provoke retaliation and tend to disrupt a harmonious relationship between counties. See People v. Blakeman, 170 Cal. App. 2d 596 (339 P2d 202).
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