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Probation revocation. Floyd Superior Court. Before Judge Royal.
DEEN, Presiding Judge.
Wilkerson, after entering pleas of guilty to a number of misdemeanor and felony charges, was given a sentence of twenty years on probation, without specifying the number of years applying to each count of each indictment. Approximately two years later a different court, hearing a motion for revocation of the probationary features of the sentence, held that the sentence itself was void and ordered the original case remanded to the initial court for resentencing. The state appeals.
Wade does not conflict with Dilas v. State, 159 Ga. App. 39 (282 SE2d 690) (1981). Dilas was decided at a time when the two-step trial-sentencing procedure had been changed. Under present law, "the sentence shall be imposed by the judge, as provided by law. Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity." Code 27-2301. Dilas held that where on a probation revocation hearing it was necessary to determine the legality of the original sentence, such irregularity will not void it if the sentence could legally have been imposed, the question being not whether a proper sentence on each count of the indictment was entered but whether the sentence entered could properly have been entered on the verdict. Dilas involved a guilty verdict on each of 26 misdemeanor counts and a sentence of "36 months confinement." Obviously no one count could carry more than 12 months' confinement, but the verdict could properly have been entered by a sentence of 12 months concurrent on 24 counts and 12 months consecutive on the remaining two, or any other combination of figures (such as one month on 25 counts and 11 months on the 26th, all consecutive) which would total 36 months. This conclusion in no way conflicts with Wade. The court had no power in Wade following a concurrent jury verdict, to make its parts consecutive, although the jury in the first instance might have done so.
The present case is controlled by Dilas. The appellant could have been sentenced to a maximum of 20 years on the burglary count alone, plus two misdemeanors, a felony theft and assorted other delinquencies. That conviction was never appealed, and the defendant entered upon the service of the probated sentence. On the hearing of the petition to revoke the question was not whether the sentence as entered was technically correct, but whether such sentence "could legally have been imposed." Since the sentence could have been legally imposed, the trial court erred in holding the sentence void and returning the original case to its court of origin for resentencing.
Jack Hancock, for appellee.
F. Larry Salmon, District Attorney, William H. Boggs, Assistant District Attorney, for appellant.
Thursday May 21 21:57 EDT

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