Avery v. State

Court of Appeals of Georgia

Avery v. State

288 S.E.2d 298, 161 Ga. App. 229, 1982 Ga. App. LEXIS 1828

CourtCourt of Appeals of Georgia

DecidedFebruary 10, 1982

Docket62954

StatusPublished

Cited by1 cases

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Avery v. State, 288 S.E.2d 298, 161 Ga. App. 229, 1982 Ga. App. LEXIS 1828 (Ga. Ct. App. 1982).

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Opinion

Birdsong, Judge.

Vacation of Suspension of Child Abandonment Sentence. Willie Avery was sentenced to serve twelve months for abandonment of his two minor illegitimate children in 1977, the sentence to be suspended provided Avery paid $35 per week for the support of his children. Avery ultimately became over $6,000 in arrears before he was located in confinement in a different county of this state. At the revocation hearing, Avery admitted his guilt of the violation of the court-imposed conditions authorizing continuation of suspension. The trial court revoked the suspension and sentenced Avery to serve the original twelve-month sentence. Avery brings this appeal urging the single error that the trial court erred by failing to exercise its discretion in requiring Avery to serve the entire twelve months rather than allowing Avery to postpone all or some of the twelve-month period in a renewed suspension. Avery makes no argument that the sentence adjudged was not lawful. Held:

Avery concedes in his brief that the trial court had the authority to impose the entire twelve months in confinement. He argues only that because the trial court could have allowed some period of suspension the trial court abused its discretion.

We do not agree. In the absence of legal error, we will not [230]*230substitute our judgment for that of the sentencing judge. See State v. Tuzman, 145 Ga. App. 481, 483 (243 SE2d 675); Hopkins v. Allen, 123 Ga. App. 330 (180 SE2d 919). Inasmuch as Avery admits the sentence imposed is lawful, we will not create error where none exists. This court has no reason to impugn a sentence which is within statutory limits and lawfully imposed. Thomas v. State, 139 Ga. App. 364 (228 SE2d 386). Moreover, if the sentence of the court is within the limits prescribed by law for the offense charged, this court has no jurisdiction to review the sentence or the court’s refusal to reduce it. Jackson v. State, 142 Ga. App. 565 (1) (236 SE2d 549). We find no merit in the assigned enumeration.

Decided February 10, 1982. Samuel D. Ozburn, for appellant. John T. Strauss, District Attorney, John M. Ott, Assistant District Attorney, for appellee.

Judgment affirmed.

Shulman, P. J., and Sognier, J., concur.

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Birdsong, Judge.

Vacation of Suspension of Child Abandonment Sentence. Willie Avery was sentenced to serve twelve months for abandonment of his two minor illegitimate children in 1977, the sentence to be suspended provided Avery paid $35 per week for the support of his children. Avery ultimately became over $6,000 in arrears before he was located in confinement in a different county of this state. At the revocation hearing, Avery admitted his guilt of the violation of the court-imposed conditions authorizing continuation of suspension. The trial court revoked the suspension and sentenced Avery to serve the original twelve-month sentence. Avery brings this appeal urging the single error that the trial court erred by failing to exercise its discretion in requiring Avery to serve the entire twelve months rather than allowing Avery to postpone all or some of the twelve-month period in a renewed suspension. Avery makes no argument that the sentence adjudged was not lawful. Held:

Avery concedes in his brief that the trial court had the authority to impose the entire twelve months in confinement. He argues only that because the trial court could have allowed some period of suspension the trial court abused its discretion.

We do not agree. In the absence of legal error, we will not [230]*230substitute our judgment for that of the sentencing judge. See State v. Tuzman, 145 Ga. App. 481, 483 (243 SE2d 675); Hopkins v. Allen, 123 Ga. App. 330 (180 SE2d 919). Inasmuch as Avery admits the sentence imposed is lawful, we will not create error where none exists. This court has no reason to impugn a sentence which is within statutory limits and lawfully imposed. Thomas v. State, 139 Ga. App. 364 (228 SE2d 386). Moreover, if the sentence of the court is within the limits prescribed by law for the offense charged, this court has no jurisdiction to review the sentence or the court’s refusal to reduce it. Jackson v. State, 142 Ga. App. 565 (1) (236 SE2d 549). We find no merit in the assigned enumeration.

Decided February 10, 1982. Samuel D. Ozburn, for appellant. John T. Strauss, District Attorney, John M. Ott, Assistant District Attorney, for appellee.

Judgment affirmed.

Shulman, P. J., and Sognier, J., concur.

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288 S.E.2d 298, 161 Ga. App. 229, 1982 Ga. App. LEXIS 1828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-state-gactapp-1982.

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