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KING v. THE STATE (two cases).
38648.
38718.
Revocation of probation sentence, etc. DeKalb Civil and Criminal Court. Before Judge Mitchell.
TOWNSEND, Presiding Judge.
1. After conviction, an indictment or accusation will be construed most strongly in favor of the State where there was no timely demurrer or motion to quash, and, unless it is absolutely void, the judgment will not be set aside for some imperfection therein, whether any formal defect existed in the accusation charging the defendant with operating a motor vehicle without having in his possession a "correct" driver's license, or whether this constituted mere redundancy or surplusage, need not be decided, for the accusation clearly and distinctly set forth the offense charged.
2. The sentence was not an alternative sentence entitling the defendant to an absolute discharge on payment of the fine assessed against him.
3. The sentence was excessive in that it provided for twelve months of work and labor in the county public work camp, whereas the statute under which the defendant was convicted provided maximums of six months imprisonment and six months labor in the public work camp, which punishments are separate and cannot be coalesced into a twelve-month sentence at one or the other. The sentence being in excess of that within the power of the court to enter, it is directed that the court modify it in conformity with the terms of the statute under which it was imposed.
4. An illegal sentence of probation cannot form a basis for any subsequent order of revocation based thereon, even though the order of revocation does not of itself require the defendant to serve an excessive term.
Martin Luther King, Jr., was tried on September 23, 1960, in the Civil and Criminal Court of DeKalb County on the charge of operating a motor vehicle "without having in his possession a correct driver's license as issued by the Department of Public Safety of said State." He pleaded guilty and the court passed the following sentence: "Whereupon, it is considered by the court that the defendant, Martin Luther King, Jr., pay a fine of $25, to include all costs of this prosecution, and remain in the custody of the sheriff until the fine and costs aforesaid are paid and be put to work and labor on the Public Work Camp of the County of DeKalb or otherwise, as the proper authorities may direct, for the space of 12 months, to be computed from the date of this sentence, provided the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending, and otherwise, as provided in act approved August 27, 1931, with privilege to pay said fine and be discharged at any time after entering upon such work camp. If said fine is paid, said 12-month sentence to be served on probation. The conditions of said probation are that the defendant shall not violate any Federal or State penal statutes or municipal ordinances, same to be judged of by the court." In case no. 38648 error is assigned on this judgment and sentence on the grounds that it is void, unjust, and contrary to law in that it exceeds the legal sentence which could be entered for said offense and is in derogation of Code Ann. 92A-9904. The defendant paid the fine of $25, and was released.
Thereafter, on petition of the solicitor, the defendant was required to show cause why the probation feature of the above sentence should not be revoked in that the defendant had violated one of the terms of his probation by violating a State statute, Ga. L. 1960, p. 142. After hearing evidence the trial court, on October 25, 1960, entered the following order of revocation: "It is considered, ordered and adjudged that four months of said sentence be, and the same is, hereby revoked and defendant is ordered to be put to work and labor on the Public Work Camp of DeKalb County, or otherwise, as the proper authorities may direct, for the space of four months to be computed from the date of this order provided the defendant is confined in jail or otherwise incarcerated and has no appeal or motion for new trial pending, and otherwise, as provided in act approved August 27, 1931." Case No. 38718 assigns error on the order revoking the probationary feature of the previous sentence, the denial of the defendant's motion to dismiss the petition for revocation, and the denial of a motion to vacate the order of revocation.
1. "If a verdict, when construed with the indictment, does not find the defendant guilty of any offense, the judgment should be arrested; but where, regardless of the denomination of the offense, the allegations of the indictment charge, even imperfectly, a violation of the law, which can be plainly understood by the jury, and a verdict finding the defendant guilty can not be ignored without violating the rules of common sense, sentence should be pronounced upon the finding." Lanier v. State, 5 Ga. App. 472, 476 (63 S. E. 536); Rumph v. State, 60 Ga. App. 689 (4 S. E. 2d 673). "A plea of guilty is a conviction of the highest order and waives all defenses other than that the indictment charges no crime." Rowland v. State, 72 Ga. App. 793, 799 (35 S. E. 2d 372). After conviction, an indictment will be construed most strongly in favor of the State. Lewis v. State, 55 Ga. App. 743 (191 S. E. 278). It follows that the accusation in this case is not void because it charged the defendant with failure to have in his possession "a correct driver's license as issued by the Department of Public Safety of said State," whereas the wording of Code Ann. 92A-9904 makes it a misdemeanor to operate an automobile on the public roads of this State "without first obtaining a license under the provisions of Chapter 92A-4", which chapter provides for issuance of licenses on forms furnished by the Director of Public Safety (Code Ann. 92A-410) and makes it unlawful to operate a motor vehicle without carrying such license upon one s person (Code Ann. 92A-414). The inclusion of the word "correct" is either surplusage or a mere defect of form; where, as here, there was no demurrer to the accusation, and a plea of guilty was entered, it cannot be said after judgment that the accusation failed to charge an offense against the laws of the State. Not being void, the objection to its form made after conviction comes too late.
2. It is further contended that the sentence was an alternative sentence which was discharged on payment of the fine of $25, under the rulings in Cross v. Huff, 208 Ga. 392 (67 S. E. 2d 124), Scott v. State, 84 Ga. App. 851 (67 S E. 2d 829), Taylor v. State, 84 Ga. App. 852 (67 S. E. 2d 828), and Favors v. State, 95 Ga. App. 318 (97 S. E. 2d 613). The Scott and Taylor cases were controlled by the Cross case, the ruling in which was predicated on the fact that the sentence contained no terms of probation on which a revocation had been based, and the court observed (p. 397): "Had the alleged probation sentence contained even the admonition to 'go and sin no more' (John 8:11), the sentence might be subject to construction. But courts cannot construe that which does not exist . . . In the present case, the defendant did not violate the conditions of his probation, since no conditions were imposed." The remaining case, Favors v. State, did contain terms of probation, but "the only proviso for turning the defendant over to the board of commissioners of roads and revenues of the county was the defendant's failure to pay the fine and costs of the prosecution"; accordingly, when his fine was paid, this amounted to a discharge. The particular language in each of those cases created an ambiguity which, construed in favor of the prisoner's liberty, was held to render it an alternative sentence dischargeable on payment of the fine. No such ambiguity exists here, and this assignment of error is without merit.
Nothing to the contrary was held in Mathis v. Scott, 199 Ga. 743 (35 S. E. 2d 285), where the sentence was not excessive and only the place of imprisonment was involved. And, where a part of a sentence is legal and another part illegal, only that part which is legal can be given effect. Cook v. Jenkins, 146 Ga. 704 (92 S. E. 212). The assignment of error contending that the sentence is illegal in that the imprisonment feature thereof was excessive is well taken. However, the judgment of conviction based on-the plea of guilty is valid and must be affirmed. The case is therefore remanded with direction that, as to this part of the sentence, the defendant be resentenced in accordance with Code Ann. 92A-99O4.
4. Since the sentence as originally entered was, as to that part of it relating to imprisonment, illegal and therefore a nullity, it could not be enforced by any subsequent order such as that passed revoking its probationary feature. The probationary feature of the sentence being void, the defendant was not under probation at the time he allegedly committed the crime for which t.he purported probationary sentence was sought to be revoked. Accordingly, no probationary sentence may be revoked for the commission of this crime. The judgment of revocation in case No. 38718 is reversed. This reversal renders moot all issues raised, or which might have been raised, in respect to the transaction upon which the order of revocation was based. Case No. 38648 is affirmed and remanded with direction that the defendant be resentenced in accordance with the provisions of Code Ann. 92A-9904.
Judgment reversed in case No. 38718. Judgment affirmed with direction in case No. 38648. Carlisle, Frankum and Jordan, JJ., concur.
Jack Bryan Smith, Solicitor, John R. Thompson, Assistant Solicitor, contra.
D. L. Hollowell, Horace T. Ward, for plaintiff in error.
DECIDED MARCH 7, 1961.
Friday May 22 23:35 EDT


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