Collett v. State

206 S.E.2d 70, 131 Ga. App. 411, 1974 Ga. App. LEXIS 1435

• Court: Court of Appeals of Georgia
• Decided: March 14, 1974
• Docket: 48464
• Status: Published

Opinions

Stolz, Judge.

The jury returned a verdict of guilty for violation of the Georgia Drug Abuse Act against the defendant, Vannette Collett. The judge sentenced defendant to 12 months in a public works camp and added the following: "Suspended provided defendant moves within 7 days from this date outside of the following counties and not to return within these counties without court permission during the next 12 months: Fulton, DeKalb, Cobb, Clayton, Gwinnette [sic], Douglas and Paulding Counties and does not use any of the public streets or highways of said counties.” This sentence was dated July 18, 1972.

A warrant designated "warrant for arrest of probationer” was issued and filed in the office of the Clerk of Cobb County Superior Court on May 1,1973. The grounds for violation of probation were stated in said warrant as follows: "Subject has been living in Cobb County, at 1007 Gresham Road; subject was at the Cobb County Jail on March 23, 1973, and was seen traveling on Interstate 75 in Cobb County on March 25, 1973.” It was signed as presented by Assistant District Attorney, Cobb Judicial Circuit.

The proceeding to revoke was brought before the court on May 8, 1973. The defendant, through her attorney, filed a written motion to dismiss "the petition for revocation [sic] of probation on the ground that the sentence herein is illegal and void constituting a sentence of banishment.” The judge overruled the motion and certified his order for review. Hence, this appeal.

1. The first issue to be resolved in this appeal is whether the trial judge has authority to impose a suspended sentence in a criminal case. Several of the members of this court hold that no such authority exists except as incidental to a review of the judgment. This position is supported by older cases from this court and the Supreme Court. The most recent of these cases, (Clarke v. Carlan, 196 Ga. 130 (26 SE2d 362)), is a 1943 case which predates the enactment of Code Ann. §§ 27-2709 and 27-2714, both of which have their origins in Ga. L. 1956, p. 27 et seq. The statute has since been amended so as to bring the law to the form presented in the two aforesaid sections of our annotated Code. Code Ann. § 27-2709 provides in part: "If it appears to court upon a hearing of the matter that the defendant is not likely to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court in its discretion shall impose sentence upon such defendant but may stay and suspend the execution of such sentence or any portion thereof, and may place him upon probation under the supervision and control of the circuit probation supervisor for the duration of such probation.” (Emphasis supplied.)

Code Ann. § 27-2714 provides: "In all criminal cases in which the defendant shall be found guilty, or in which a plea of guilty or plea of nolo contendere shall be entered, and the trial judge after imposing sentence shall further provide that the execution of such sentence shall be suspended, such provision shall not have the effect of placing such defendant on probation as provided in this law [§§ 27-2702 through 27-2726.1].” (Emphasis supplied.)

The two sections of our Code, when construed in pari materia, clearly authorize a trial judge to enter a suspended sentence when the statutory conditions exist justifying it. This court has stated: "'While it is agreed that a suspended sentence does not have the effect of placing the defendant on probation [Code Ann. § 27-2714], we see no distinction between a condition imposed for a suspension and one imposed for probation,’ so that a condition which would be authorized in the case of a probated sentence would be authorized in the case of a suspended sentence.” Falkenhainer v. State, 122 Ga. App. 478, 480 (177 SE2d 380) and cit. (1970).

In Rowland v. State, 120 Ga. App. 248 (170 SE2d 58), the defendant pleaded guilty to six counts of uttering forged instruments, for which he received a suspended sentence of confinement for three years to follow another sentence previously imposed, subject to certain conditions. The defendant violated one of the conditions of his suspended sentence and was brought before the court for a revocation hearing. This court affirmed the trial court’s revocation and, in answer to defendant’s challenge of the regularity of the sentence, held (on p. 249) that, "On the face of the record the sentence as originally imposed reveals no irregularity. It expressly shows that it is suspended, which, under present law, does not place the offender under the requirements of the probation law.” (Emphasis supplied.) See also Todd v. State, 107 Ga. App. 771 (131 SE2d 201), which involves a suspended sentence.

Likewise, in Cross v. State, 128 Ga. App. 774, 775 (197 SE2d 853) speaking in reference to a suspended sentence this court noted, "we are satisfied that the [trial] court may provide rules and regulations in connection therewith and may, on violation of such rules and after notice and opportunity to be heard, during the time such sentence runs in accordance with its own terms, revoke the suspension and require that the remainder be served within a penal institution.”

Here, the suspended sentence in this case is in complete harmony with the jury verdict, which, after finding the defendant guilty of possessing marijuana, provided: "also unanimous decision with [recommendation] of lieniency [sic] we the jury recommend a two thousand dollar fine and no years in prison with a recommendation that this be treated as a misda-meaner [sic] with probation.” (Emphasis original.)

The decisions of this court in Falkenhainer, Rowland, Todd, and Cross, supra, specifically involved suspended sentences. We hold that a trial judge has authority to enter a suspended sentence in proper cases.

2. The defendant’s motion to dismiss the petition for revocation contends "that the sentence herein is illegal and void, constituting a sentence of banishment.” The sentence imposed by the trial judge has been fully set forth earlier in this opinion. The verbiage of the sentence can leave little doubt that it was the intention of the jury that the defendant receive only misdemeanor punishment. The sentence imposed (12 months suspended on condition) shows that the trial judge approved the recommendation of the jury and reduced the felony to a misdemeanor, as provided in Code § 27-2501, and was a legal sentence.

The defendant, however, contends that the conditions imposed on the suspended sentence (i.e., move out of the county within 7 days; stay out of the seven named counties during the term of the suspended sentence and not to use the public streets and highways of said counties) amount to a sentence of banishment and is unconstitutional. Art. I, Sec. I, Par. VII of the Constitution of the State of Georgia of 1945 (Code Ann. § 2-107), which provides: "Neither banishment beyond the limits of the State, nor whipping, as a punishment for crime, shall be allowed.” We can find no Georgia cases interpreting this paragraph of our Constitution. Code Ann. § 27-2711 (Ga. L. 1956, pp. 27, 32; 1958, pp. 15, 23; 1965, pp. 413, 416) sets forth the conditions of probation and gives the court the authority to determine the terms and conditions thereof. Here we are not concerned with a probated sentence, but one which has been suspended on certain conditions. As previously noted, Code Ann. § 27-2714 specifically provides that suspended sentences shall not have the effect of placing the defendant on probation. The only real distinction between a probated sentence and a suspended sentence is that a probated sentence is served under the supervision of the probation officers pursuant to the "Statewide Probation Act,” Code Ann. §§ 27-2702 through 27-2726.1 (Ga. L. 1956, p. 27 et seq., as amended), whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge. "Banishment. In criminal law. A punishment inflicted upon criminals, by compelling them to quit a city, place, or country for a specified period of time, or for life.” Black’s Law Diet. (Rev. 4th Ed.), p. 183. See also 8 CJS 593, Banishment.

It is argued that our Constitution is clear and that banishment occurs only when a person is expelled beyond the borders of the state. We have no Georgia cases on this point holding either view. The general rule is that banishment, while unusual, is not cruel, and does not constitute a violation of the prohibition against cruel and unusual punishments. 24B CJS 554, Criminal Law, § 1978 (2). It is impliedly prohibited by public policy, 21 AmJur2d 559, Criminal Law, § 609, in the absence of statutory authorization. 24B CJS 611, Criminal Law, § 1991.

In People v. Blakeman, 170 Cal. App. 2d 596 (339 P2d 202), the defendant pleaded guilty to the offense of assault and battery and proposed that he would leave the community. It was adjudged that he pay a fine of $500 and be imprisoned one year in the county jail, providing that the imposing of the jail sentence be suspended upon condition that he absent himself from the county. Ten months later, after a hearing, the trial court found that the defendant had violated said condition, and, for that reason, revoked probation by terminating the suspension of sentence. The California court held: "[1, 2] It was beyond the power of the court to impose banishment as a condition of probation. The provision therefor was a void and separable part of the order granting probation. Revocation of probation upon the sole ground of violation of such a void provision was without authority in law and should be reversed. (Emphasis supplied.)

"In In re Scarborough, 76 Cal. App. 2d 648 (173 P2d 825), an order suspending sentence on condition of banishment for two years was deemed the granting of probation upon a void condition. It was void because there was no statutory authority for it and banishment is proscribed by the fundamental policy of not permitting one political division to dump undesirable persons upon another. Said the court: 'The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city. The old Roman custom of ostracizing a citizen has not been adopted in the United States. The so-called "floating sentence,” too frequently resorted to in some inferior courts, falls in the same category. There is no statute in California authorizing such judgments.’ 76 Cal. App. 2d at page 650, 173 P2d at page 827. See also the authorities cited on page 649 of 76 Cal. App. 2d, on page 826 of 173 P2d, and 15 AmJur 112, Crim. Law, § 453. This void condition was deemed separable from other provisions of the order. Accordingly, defendant was entitled to his freedom upon probation until revocation of probation for lawful reasons.

"Counsel for plaintiff contends that the policy against banishment is not as sweeping and unqualified as expressed by the court in the Scarborough case. He says that in the case now before us another public policy, that of rehabilitating the defendant by removing him for a time from the temptations to which he was subjected in his old habitat, comes into play and modifies or qualifies the policy against banishment. We find in the reasoning which supports the latter policy and the decisions expounding it no basis for any such qualifying or modifying factors. The question whether the Legislature could modify this policy is not before us, for it has not undertaken to do so.

"[3] Plaintiff further contends that defendant waived the right to urge the invalidity of the banishment clause by suggesting banishment and receiving the benefit of the probation which was conditioned upon banishment. The fallacy of this argument is that we are not dealing with a right or privilege conferred by law upon the litigant for his sole personal benefit. We are concerned with a principle of fundamental public policy. The law can not suffer the state’s interest and concern in the observance and enforcement of this policy to be thwarted through the guise of waiver of a personal right by an individual. 'Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.’ Civil Code, § 3513. 'Although a defendant may waive rights which exist for his own benefit, he may not waive those which belong to the public generally.’ ” See also 14 AmJur 917, Crim. Law, § 214; 7 Cal. Jur. 897, Crim. Law, § 45; Bird v. State, 231 Md. 432 (190 A2d 804); People v. Wallace, 124 N. Y. S. 2d 201.

There is an express constitutional prohibition against a sentence of banishment beyond the limits of the state, hence the General Assembly would be powerless to enact laws authorizing such. Although the General Assembly would have the authority to authorize the imposition of a sentence, or a condition affixed to a suspended/probated sentence, which banishes a person from certain areas within the state, it has not done so.

The logic, reason and results reached by the California courts in Blakeman and Scarborough, supra, are sound. To hold otherwise would be to impliedly authorize every judicial officer exercising even the most minimal incarceration powers, to dump its undesirables on its neighbors. Such directly contravenes the public policy of this state.

To the argument that this court has no authority to express the public policy of this state on this point we but make the following passing observation. The issue has been squarely presented to us. There are no judicial precedents of statute. We hold that as a matter of a public policy banishment within the state is not otherwise. If the views expressed in the second dissent were the majority, would not our public policy be stated as to authorize banishment within the state?

The sentence imposed by the trial judge was legal and valid. The judge likewise acted within his authority in suspending the sentence, but, in imposing the stated conditions on the suspension, exceeded his powers.

The defendant’s motion to dismiss should have been sustained insofar as it applied to the conditions imposed on the suspended sentence.

Judgment reversed.

Bell, C. J., Hall, P. J., Deen and Clark, JJ., concur. Eberhardt, P. J., Pannell, Quillian and Evans, JJ., dissent.