Opinion
34363.
DECIDED JANUARY 20, 1953.
Revocation of probation sentence; from Hart Superior Court — Judge Edwards. September 6, 1952.
A. S. Skelton, for plaintiff in error.
Carey Skelton, Solicitor-General, contra.
Where a sentence is imposed in a criminal case providing for the payment of a fine as the alternative of actual incarceration, and as a consideration for service thereof on probation, a defendant who pays such fine, which is accepted by the authorities, within the period of the sentence — although not within the five days specified therein as the time when such payment is to be made — is entitled to have the time computed as commencing on the date of the sentence. Accordingly, the length of the sentence being eighteen months, it expires eighteen months after the date on which it is pronounced; and a judgment revoking the probation and seeking to remand the defendant to custody after its term has elapsed is absolutely void.
DECIDED JANUARY 20, 1953.
This case represents an appeal by Joe Norman from a judgment of the Superior Court of Hart County revoking a probationary sentence. At the December, 1950, term of court, he had entered a plea of guilty of assault and battery, and the court passed the following sentence, dated December 7, 1950: "Considered, ordered and adjudged by the Court that the defendant be put to work in the Public Works Camp of said County or otherwise, as the Director of Corrections may direct, for a period of twelve months, to be computed as provided in Title 27, Section 2505, Code of Georgia, 1933. It is further ordered that at the expiration of the above sentence the defendant be confined in jail of Hart County for a period of six months. It is further ordered that upon payment of the fine of $75, including costs of this prosecution, within five days, the defendant may serve said sentence outside the confines of the Public Works Camp and outside the confines of the common jail of said county so long as he conducts himself in an upright manner, abstaining from all vicious and immoral habits." (Italics ours.)
The defendant did not pay the fine within the five days stipulated, but did pay $15 on August 2, 1951, and the balance on December 2, 1951. He was not at any time remanded to custody. On March 3, 1952, he was arrested on a charge of driving while under the influence of intoxicants. A petition for revocation of the December, 1950, sentence was filed on March 15 and served on the defendant on July 2, 1952, ordering him to show cause "why the suspension of said sentence should not be revoked and the defendant required to serve said sentence as prescribed therein." The defendant demurred on the ground that the sentence sought to be revoked had already expired. On September 6, the court overruled the demurrer and entered the following judgment: "That so much of said sentence dated December 7, 1950, in the above stated case that permits the defendant to serve said sentence outside the confines of the Public Works Camp and outside the confines of the common jail of said County so long as he conducts himself in an upright manner, abstaining from all vicious and immoral habits, is hereby revoked. That the defendant be, and he is hereby required to serve the remainder of said sentence, to be computed from December 2, 1951."
Error is assigned on the judgment overruling the demurrer and the judgment revoking the defendant's probation.
In Roper v. Mallard, 193 Ga. 684 (2) ( 19 S.E.2d 525), it is held: "Under the act of 1913 (Ga. L. 1913, p. 112, Code § 27-2702), upon conviction of a misdemeanor or felony reduced to a misdemeanor, the court may so mold its sentence as to allow the defendant to serve the same outside of the chain gang, jail or other place of detention, under the supervision of the court; and thus serving a sentence on probation is fulfilling his sentence as effectually as if confined in jail or on the chain gang." Under Code § 27-2705, failure to comply with the terms of the sentence prior to the final disposition of the case is ground for revocation of the probation sentence, and, where such probation is revoked, the time served under the order and sentence prior to revocation must be counted in favor of the defendant and deducted from the period of service imposed. Wimbish v. Reece, 170 Ga. 64 (4) ( 152 S.E. 97).
The propriety of the judgment here depends upon whether or not the court properly construed the sentence as beginning on December 2, 1951, when the last instalment on the fine was paid, rather than on December 7, 1950, the date of the sentence. It should be noted that payment of a fine was not demanded unconditionally by the sentence, which imposed service of 12 months in a public works camp and 6 months in the county jail, to which an alternative was provided in the next clause as follows: "It is further ordered that upon payment of the fine of $75, including costs of this prosecution, within five days, the defendant may serve said sentence outside the confines" of the places of detention. The defendant was not remanded to custody during five-day period to be held until payment was made, nor was he subsequently incarcerated when such period expired. He paid the fine in two instalments during the term of the sentence.
"A sentence which is, in its entirety, ambiguous and doubtful should be given that construction which favors the liberty of the individual. Sentences in criminal cases are to be strictly construed." Guest v. State, 87 Ga. App. 184 ( 73 S.E.2d 218). See also Cross v. Huff, 208 Ga. 392 ( 67 S.E.2d 124). There is nothing within the sentence here which, so construed, would authorize the interpretation placed upon it by the State that the probated sentence was to commence upon actual payment of the fine in full, regardless of when that date was and regardless of the fact that the fine was being paid in instalments. On the contrary, the sentence limited the time of payment of the fine to five days, and further provided that the date of the sentence should be computed under Code § 27-2505, which provides that it is the duty of judges to specify that the term of sentence shall be computed as from the date of sentence in all cases where the defendant is incarcerated or has an appeal pending. As pointed out in the brief for the State, this Code section does not apply where, as here, the defendant was not incarcerated and had no appeal pending (See Murphey v. Lowry, 178 Ga. 138, 141, 172 S.E. 457); but, nevertheless, its inclusion in the sentence by reference, together with the provision for payment of a fine within five days, suggests no alternative but that the probated sentence was to begin running immediately and so continue throughout its term, conditioned upon payment of the fine and other provisions as to leading a moral and upright life. It is obvious that the stipulation, "payment of a fine within five days," does not mean payment of a fine at any indefinite time in the future when it shall be the defendant's pleasure to do so. The only other possible construction of the sentence is that the defendant lost all right to a probated sentence whatever when the fine was not paid within the five-days period allowed; and of course, under such a construction, a proceeding to revoke probation would also be improper, for the remedy would consist in seizing the prisoner unlawfully at liberty and compelling him to serve his full time. Such construction would certainly not "favor the liberty of the individual," and would be the more unjust where, as here, payment of the fine was made the alternative of actual servitude, and the fine has in fact been paid. The facts of this case distinguish it from Crosby v. Courson, 181 Ga. 475 (4) ( 182 S.E. 590), in which it was held that a provision relating to suspension (probation) upon payment of a fine within 30 days did not become applicable where the fine was never paid.
From what has been said above, it follows that the sentence should have been computed as running from its date, and the trial court erred in overruling the demurrer which pointed out that the sentence had expired before the date upon which the probation was sought to be revoked.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.