A petition in the nature of mandamus was filed in this court to require the Superior Court of Carroll County to set appeal bonds pending appeal from convictions for the possession of less than one ounce of marijuana.
The petition alleged that the trial court treated the convictions as misdemeanors, that a written record from the trial court would be provided at the earliest possible time, that the appeal would be moot insofar as the 30-day jail sentence was concerned if the prayers of the petition were not granted. It was further alleged that after conviction and sentence the trial court refused to permit appeal bonds. The petition also alleged that the appeal on its merits would be in this court. The prayers of the petition were granted by this court ex parte and an appeal bond was thereafter permitted in each case by the trial court. A motion for rehearing was filed on behalf of the State by the district attorney and an oral hearing was had where both sides were represented although no record of the proceedings in the trial court has yet been filed in this court.
The petition filed in this court made a case under Rule 36 (c) where the issue of jail sentence would become moot because the defendants were being denied bail in misdemeanor cases where they were entitled to bail as a matter of law (Code § 27-901), and the petition made a case which would have come to this court on the appeal from the conviction. Thus, a case was made for the extraordinary exercise of the inherent power of this court to preserve its jurisdiction and protect the defendants’ statutory right to bail. Compare Garland v. Tanksley, 99 Ga. App. 201 (107 SE2d 866).
On the hearing in this court it was undisputed that the trial court provided that the sentences be served in jail rather than in the penitentiary, and while this may have reduced the punishment to misdemeanor punishment, it *885did not reduce the offense to a misdemeanor as provided by Code §27-2501. It was also undisputed that an oral request for bond was made in a conference at the bench "while the jury was out” thus of necessity before sentence, not after, and that the appeal was one within the jurisdiction of the Court of Appeals and not the Supreme Court.
Decided December 19, 1972. Harrison & Garner, G. Hughel Harrison, James W. Garner, for movants. Eldridge W. Fleming, District Attorney, contra.Accordingly, since the agreed statements of counsel in this court showed that the appeal was not one within the jurisdiction of this court and that the crime had not been reduced to a misdemeanor so as to require bail as a matter of law, the case does not fall within the intent of Rule 36 (c) or the law exemplified by Garland v. Tanksley, supra.
Under decisions exemplified by Brown v. Hutcheson, 166 Ga. 644 (144 SE 17); Williams v. Smith, 93 Ga. App. 429 (1) (91 SE2d 840); and Scott v. Hubert, 99 Ga. App. 784 (109 SE2d 614), the judgment granting the prayers of the petitioners entered on October 23, 1972, is vacated and the petition is dismissed.
All the Justices concur, except Hawes, Gunter and Jordan, JJ., who dissent.