Johnson was indicted, convicted and sentenced on January 7, 1969, on four counts of forging a fictitious name to documents with intent to defraud. See Code Ann. § 26-3914. With regard to punishment for the respective counts, Johnson received sentences of 7, 2, 2, and 5 years to be served consecutively. Johnson filed a motion for new trial which was amended. This new trial motion as amended was overruled on March 26, 1969. No appeal was taken.
Subsequently Johnson attacked his conviction collaterally by a habeas corpus proceeding in which he made several contentions including one that the sentence was illegal. The Supreme Court of Georgia upheld this contention as to Count 1 stating: "The sentence of 7 years exceeds the maximum provided by statute and is illegal. This will not result in the prisoner’s discharge under this sentence, but will require that he be returned to the court where he was sentenced in order that a legal sentence may be imposed upon him.” Johnson v. Smith, 227 Ga. 611, 614 (182 SE2d 101).
Pursuant to such direction, the issue of punishment for Count 1 was resubmitted to a jury on August 12, 1971. The jury set punishment at two years with a recommendation of misdemeanor punishment. The trial court declined to accept the recommendation and sentenced the defendant to two years on Count 1 computed from January 7, 1969, with entitlement thereon for any time served in jail prior to January 7, 1969. The present appeal was taken from the resentencing proceeding.
*758Submitted July 7, 1972— Decided July 12, 1972— Rehearing denied July 21, 1972. James L. Johnson, pro se. Lewis R. Slaton, District Attorney, Joel M. Feldman, Morris H. Rosenberg, for appellee.The issue is clearly limited to the question of punishment. The sentence was not only within the range prescribed by statute (not less than two years nor more than five years) but was set by the jury at the statutory minimum, that being two years.
Although the jury made a recommendation for punishment as a misdemeanor, the trial court in the exercise of its discretion granted by our statute declined to accept such recommendation. A provision authorizing juries to recommend misdemeanor punishment for certain felonies was first enacted in 1895 (Ga. L. 1895, p. 63). As is stated in Harris v. State of Ga., 216 Ga. 740 (119 SE2d 352), "It has been the rule since the passage of the act of 1895 that it is in the 'discretion of the trial judge whether he will approve such recommendation, and his action in the matter is final.’ Guthrie v. State, 125 Ga. 291 (1) (54 SE 180); Johnson v. State, 100 Ga. 78 (25 SE 940); Taylor v. State, 110 Ga. 150 (35 SE 161); Daniel v. State, 118 Ga. 16 (43 SE 861); Oliver v. Lowry, 173 Ga. 892 (161 SE 828).”
Accordingly in the instance of the present appeal the trial judge exercised a legal discretion declining the recommendation and his action in that respect was final.
We find no error.
Judgment affirmed.
Eberhardt, P. J., and Deen, J., concur.