dissenting.
I agree with the statement of facts as set out in the majority opinion, but I disagree with the opinion and the holding therein.
The opinion holds that a suspended sentence is served without supervision, but on such legal terms and conditions as are required by the sentencing judge; that a probated sentence is served under supervision of the probation officers pursuant to the "Statewide Probation Act.” The error in this is that a suspended sentence is not served at all but is suspended. A probation sentence is served and the time runs from the time he enters the service of his sentence.
a. The Constitution of the State of Georgia (Const. 1945, Art. V, Sec. 1, Par. XI [Code Ann. § 2-3011]) places the "power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction, except in cases of treason or impeachment,” etc. (With provisions to report same to legislature) in the Board of Pardons and Paroles, which is a constitutional board within the executive department. This section is further repeated as Section 27-2701 of Georgia Code Ann.
There is no provision in the Constitution authorizing the courts of the state, having jurisdiction in criminal cases, to exercise any of these powers; and the Constitution declares that "the legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.” Art. I, Sec. I, Par. XXIII, Constitution of Georgia, 1945 (Code Ann. § 2-123).
Also, there is no provision whatever in the laws of this state for setting at liberty a convicted criminal and hanging over his head a threatened sentence, or the *419threatened enforcement of an imposed sentence, for the purpose of constraining him to refrain from further violations of the criminal statutes of the state.
Clemency is for the executive department. To give the courts the power to try, sentence and grant clemency would, in my opinion, completely ignore the separation of powers in our Constitution, and destroy our system of checks and balances.
Georgia Laws 1956, pp. 27, 31; 1958, pp. 15, 20; 1960, p. 1148; 1972, pp. 604, 609 (Code Ann. § 27-2709) provides for the hearing by court to determine whether or not he shall be placed upon probation. "If it appears to the court upon a hearing of the matter that the defendant is not likely to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court in its discretion shall impose sentence upon such defendant but may stay and suspend the execution of such sentence or any portion thereof, and may place him upon probation under the supervision and control of the circuit probation supervisor for the duration of such probationThus, the court is given the right to stay or suspend execution for a specific purpose, namely, to determine if defendant should be placed on probation or should serve sentence under confinement. This is in similar category to review of judgment by appeal when stay is given for that purpose.
b. The state contends that under the Probation Act, Ga. L. 1956, pp. 27, 32, and amendments thereto, and particularly as shown by Ga. L. 1965, pp. 413,416, Section 3 (Code Ann. § 27-2711), the judge could impose conditions (2) to avoid persons or places of disreputable or harmful character; (6) remain within a specified location, and that this sentence comes under those provisions. This contention would be sound if the judge had placed the defendant on probation under proper conditions. But, here, the defendant was not put on probation. Sentence was given and then suspended upon conditions stated.
c. This is a suspended sentence and does not have the effect of placing such defendant on probation. Ga. L. 1965, pp. 413, 416, Section 4 (Code Ann. § 27-2714) reads as follows: "In all criminal cases in which the *420defendant shall be found guilty, or in which a plea of guilty or plea of nolo contendere shall be entered, and the trial judge, after imposing sentence, shall further provide that the execution of such sentence shall be suspended, such provision shall not have the effect of placing such defendant on probation as provided in this law [§§ 27-2702 through 27-2726.1].” Ga. L. 1933, p. 266 was the original Act that placed suspended sentences under probation; and it continued until repealed by the above 1965 Act. To hold that suspended sentence still has the effect of placing defendant under probation would nullify the 1965 Act and make it meaningless; and would, in the writer’s opinion, cause the court to usurp the power of the legislature. Also, for a discussion of former law, see Judge Whitman’s special concurrence in O’Quinn v. State; 121 Ga. App. 231 (173 SE2d 409). We do not, therefore, make any holding on what a court can do under the provisions of probation but confine ourselves solely to suspended sentences.
A judge has no authority to suspend execution of a sentence imposed in a criminal case, except as incidental to a review of the judgment. Neal v. State, 104 Ga. 509 (30 SE 858, 42 LRA 190, 69 A SR 175); Wall v. Jones, 135 Ga. 425 (69 SE 548); Smith v. Jackson, 164 Ga. 188 (138 SE 52); Clarke v. Carlan, 196 Ga. 130 (26 SE2d 362). Of special note, the case of Avery v. State, 22 Ga. App. 746 (97 SE 204) is a case very similar in facts to the present case.
So much of the sentence as imposed services of 12 months in public works camp is legal and enforceable, but that part which related to the suspension of the penalty of serving a term of 12 months in the public works camp was illegal, null and void.
The judge did not err in overruling the motion to dismiss. He has the right to require him to serve the sentence.
I would affirm the trial judge.
I am authorized to state that Presiding Judge Eberhardt and Judge Quillian concur in this dissent.