Green v. State

253 S.E.2d 449, 149 Ga. App. 87, 1979 Ga. App. LEXIS 1729

• Court: Court of Appeals of Georgia
• Decided: February 15, 1979
• Docket: 57055
• Status: Published

Opinion

Quillian, Presiding Judge.

The defendant appeals his conviction for forgery. Held:

It is asserted that "[T]he trial court committed reversible error in imposing a sentence of probation and restitution to follow a confinement portion of the same sentence ”

Code Ann. § 27-2502 (Ga. L. 1974, pp. 352, 354) reads: "The judge imposing... sentence is hereby granted power and authority to suspend or probate said sentence, under such rules and regulations as he deems proper.”

Code Ann. § 27-2709 (Ga. L. 1956, pp. 27, 31, as amended, Ga. L. 1972, pp. 604, 609) provides as to sentencing: "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.)

The Supreme Court noted in Munsford v. State, 235 Ga. 38, 45 (218 SE2d 792): "[U]nder Code Ann. § 27-2709, the trial judge is also authorized before pronouncing sentence to consider investigation reports prepared by probation officers of the circuit for the purpose of deciding whether to suspend or probate all or part of the sentence to be imposed in a case.”

In Biddy v. State, 138 Ga. App. 4 (225 SE2d 448) this court approved the imposition of restitution as a condition of probation where the defendant was sentenced to 20 years, 14 years to be served and the remainder on probation.

The defendant’s enumeration of error is without merit.

Judgment affirmed.

Smith and Birdsong, JJ., concur. Submitted January 15, 1979 — Decided February 15, 1979. Jack H. Affleck, Jr., Vicki C. Affleck, for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.