Barnett v. Hopper

234 Ga. 694 (1975)

217 S.E.2d 280

BARNETT v. HOPPER.

29859.

Supreme Court of Georgia.

Argued May 12, 1975.

Decided July 1, 1975.

James C. Bonner, Jr., for appellant.

Arthur K. Bolton, Attorney General, David L. G. King, Jr., Assistant Attorney General, for appellee.

HALL, Justice.

Tyrone F. Barnett, now serving a ten-year sentence for armed robbery in the Georgia State Prison at Reidsville, appeals from the denial (following an evidentiary hearing below) of his habeas corpus petition. Barnett, with the assistance of private counsel, pled guilty, and was sentenced in 1973.

Barnett claims he has been deprived of equal protection of the law by the fact that his sentence was probated upon payment of a fine of $2,000 and that he cannot pay the fine due to his indigency. His co-defendant pled guilty, received the same sentence, paid the fine and *695 is on probation.

We affirm under the ruling in Calhoun v. Couch, 232 Ga. 467 (207 SE2d 455): "there is nothing in the record to show that appellant has been discriminated against in this case . . . The sentence in the present case does not involve a fine which has been converted to a prison sentence. Rather, it involves a sentence which provides it can be served on probation upon payment of the fine. Code Ann. § 27-2709 provides: `The court may, in its discretion, require the payment of a fine or costs or both as a condition precedent to probation.' The sentence imposed here is authorized under the above statute and the statute has not been attacked in this case. The sentence does not require the prisoner to pay money or serve time. Instead, the sentencing judge has exercised his discretion and made the sentence fit the situation."

The petition being without merit, the court below did not err in remanding Barnett to the custody of the warden.

Judgment affirmed. All the Justices concur.