Foster v. Jenkins

210 Ga. 383 (1954)

80 S.E.2d 277

FOSTER, Sheriff, v. JENKINS et al.

18416.

Supreme Court of Georgia.

Argued November 10, 1953.

Decided January 11, 1954.

Rehearing Denied February 11, 1954.

John I. Kelley, Solicitor, Broadus B. Zellars, Assistant Solicitor, for plaintiff in error.

John Tyler, Wesley Asinof, Marvin O'Neal, Jr., contra.

*386 HEAD, Justice.

1. There is no merit in the motion to dismiss the writ of error.

2. Under the rulings of this court in Johnson v. Aldredge, 192 Ga. 209 (14 S. E. 2d 757), Cain v. Grimes, 198 Ga. 566 (32 S. E. 2d 302), Hodges v. Balkcom, 209 Ga. 856 (76 S. E. 2d 798), and Hodges v. Bruce, 209 Ga. 871 (76 S. E. 2d 801), the defendants were not entitled to be released on bond, since they were not seeking to review a "judgment of conviction" within the provisions of Code §§ 27-901 and 19-214.

(a) The defendants strongly rely upon the decision of this court in Sauceman v. State, 209 Ga. 60 (70 S. E. 2d 754). The Sauceman case does not sustain the contentions of the defendants. Sauceman attacked by certiorari his original sentence, and was therefore seeking to review "the judgment of conviction."

3. After a final "judgment of conviction" is entered, the constitutional right of certiorari still exists to review a judgment revoking a probationary *384 sentence. Williams v. State, 162 Ga. 327, 332 (133 S. E. 843); Rhodes v. State, 162 Ga. 627 (134 S. E. 448); State v. Thompson, 175 Ga. 189 (165 S. E. 34). The defendant has no right, however, to suspend the order of revocation by the giving of a bond, since the final judgment of conviction terminates any right to a supersedeas. Johnson v. Aldredge; Cain v. Grimes; Hodges v. Balkcom; Hodges v. Bruce, all supra.

4. The probationary sentences of the defendants were not so vague and indefinite as to be incapable of construction. Compare Cross v. Huff, 208 Ga. 392 (67 S. E. 2d 124), and Morgan v. Foster, 208 Ga. 620 (68 S. E. 2d 583). The defendants in their application for habeas corpus are not entitled to review the judgment revoking their probationary sentences, since "habeas corpus can not be used as a substitute for appeal, writ of error, or other remedial procedure for the correction of errors or irregularities alleged to have been committed by a trial court." Wallace v. Foster, 206 Ga. 561 (57 S. E. 2d 920), and cases cited.

5. In the present case the judge of the superior court fixed the amount of a bond and then directed that the bond be approved by the clerk. The judge was not authorized to give direction as to the amount of a bond or as to its approval, and it was error to order the release of the defendants on bond. Hamilton v. Phenix Ins. Co., 107 Ga. 728 (32 S. E. 705); Stover v. Doyle, 114 Ga. 85 (39 S. E. 939); Dykes v. Twiggs County, 115 Ga. 698 (42 S. E. 36); Brown v. State, 124 Ga. 411 (52 S. E. 745); Clark v. Morris Plan Bank, 194 Ga. 522 (22 S. E. 2d 147).

Judgment reversed. All the Justices concur, except Duckworth, C. J., not participating.