State v. Stuckey , 145 Ga. App. 434 ( 1978 )

Bell, Chief Judge.

The defendant was convicted of armed robbery and aggravated assault on his plea of guilty. The trial court imposed a sentence of five years imprisonment which was probated. The state filed a motion to amend the sentence, contending that the sentence was null and void because probation is not allowed on conviction of armed robbery. The motion was denied and the state has appealed. Held:

The sentence imposed in this case is absolutely void. A superior court judge has no jurisdiction to probate a sentence imposed on conviction of armed robbery. Code § 26-1902 (b). As the sentence or judgment is void, the state can appeal under the Supreme Court’s holdings in Darden v. Ravan, 232 Ga. 756, 758 (208 SE2d 846) and Potts v. State, 236 Ga. 230 (223 SE2d 120). The posture of this case is that the defendant has been validly convicted but has had a void sentence imposed which in law amounts to no sentence at all. See Mullins v. State, 134 Ga. App. 243 (214 SE2d 1). Accordingly, the judgment sentencing the defendant is reversed with direction that the trial court re-sentence the defendant in compliance with the clear language of the statute by which the trial judge is bound.

Argued October 3, 1977 Decided March 7, 1978 Rehearing denied March 30, 1978. Lewis R. Slaton, District Attorney, Thomas Jones, Joseph J. Drolet, Assistant District Attorneys, for appellant. Eric Welch, for appellee.

Judgment reversed with direction.

Deen, P. J., Quillian, P. J., Webb, McMurray, Banke and Birdsong, JJ., concur. Smith and Shulman, JJ., dissent.