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BURNEY v. THE STATE.
65139.
SHULMAN, Chief Judge.
Burglary. Baldwin Superior Court. Before Judge Thompson.
Appellant entered a plea of guilty to a burglary charge and was sentenced to five years' probation as a first offender. Code Ann. 27-2727 (OCGA 42-8-60). Upon receipt of evidence that appellant had committed theft, assault upon a police officer, and escape, the trial court revoked appellant's probation and sentenced him to serve 19 years, 2 months and 16 days for the burglary. This appeal followed.
1. Appellant questions the sufficiency of the evidence concerning the escape charge, but raises no such inquiry with regard to the theft and assault charges. Even if there were no evidence of escape, the unquestioned evidence of theft and assault would be sufficient to support the revocation of probation. See Johnson v. State, 142 Ga. App. 124 (235 SE2d 550).
2. Citing Stephens v. State, 245 Ga. 835 (268 SE2d 330), appellant maintains that he was never informed that, upon revocation of his probation, he could receive a sentence greater than the revoked probation. However, the order of appellant's first offender probation provided that "[i]f such probation is revoked, the Court may order the execution of the sentence originally deferred and may order the defendant to serve in the penitentiary any portion of time provided by law for said offense, up to the maximum, after deduction therefrom the amount of time the defendant served on probation." This statement, a copy of which appellant acknowledged he had received, was sufficient notice of the fact that the trial court could, upon revocation of appellant's probation, give him a sentence of up to 20 years' imprisonment (the maximum sentence for burglary), reduced by the amount of time already served on probation. See State v. Wiley, 233 Ga. 316 (210 SE2d 790). Inasmuch as the record reflects that the trial court gave appellant credit for the time served on probation, no Stephens problem appears.
Joseph H. Briley, District Attorney, for appellee.
Larry Herrington, for appellant.
DECIDED JANUARY 31, 1983 -- CERT. APPLIED FOR.
Thursday May 21 19:22 EDT


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