Worley v. State

Carley, Justice,

concurring.

The majority opinion’s conclusion that even after the adoption of OCGA § 17-10-1 a sentencing court clearly could impose either a life *254sentence or a determinate sentence is supported and further bolstered by a review of the act of the General Assembly adopting the official Code of Georgia Annotated. Ga. L., August-September 1981, Extraordinary Session, p. 8. The act recited the 1977 creation of the Code Revision Commission and that Commission’s 1978 contract with the publisher for the “recodification and publication of Georgia laws in a new official Code of Georgia Annotated.” The act further recited that the statutory portion of the new Code as prepared by the Code Revision Commission was on file in the Office of the Secretary of State. The act then provided:

The statutory portion of the codification is contained in 24 volumes entitled “Code of Georgia 1981 Legislative Edition” plus one volume entitled “Code of Georgia 1981 Legislative Edition Supplement.” The material contained in such supplement consists of acts and resolutions of the General Assembly enacted in the 1981 regular session. The material contained in such supplement shall supersede correspondingly numbered material in the other 24 volumes. . . .

(Emphasis supplied.) Thus, the intention of the legislature was to adopt the “Code” as set forth in the 24 volumes on file in the Secretary of State’s Office as superseded by any changes the legislature made during its regular 1981 session. The language of OCGA § 17-10-1 in effect at the time Worley was sentenced was that contained within the 24 volumes of the “Code of Georgia 1981 Legislative Edition” which, of course, obviously was prepared prior to the 1981 regular session of the General Assembly. At that session, the General Assembly amended Code § 27-2502, the predecessor to OCGA § 17-10-1, by renumbering the existing Code section as section (a) and adding a new subsection (b) dealing with parole. The 1981 act then provided

that when so amended Code Section 27-2502 shall read as follows:

27-2502. Determinate sentences, (a) Upon a verdict or plea of guilty in any case involving a misdemeanor or felony the judge fixing such sentence shall prescribe a determinate sentence for a specific number of years, which shall be within the minimum and maximum prescribed by law as the punishment for said crime, except in cases in which life imprisonment or capital punishment is imposed. The judge imposing said sentence is hereby granted power and authority to suspend or probate said sentence, under such rules and regulations as he deems proper. Said judge shall also be empow*255ered to revoke said suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court. After the term of court at which the sentence is imposed by the judge, he shall have no authority to suspend, probate, modify or change the sentence of said prisoner, except as otherwise provided.
Decided March 6, 1995 Reconsideration denied March 30, 1995. Robert Russell Worley, pro se. Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Paula K. Smith, Senior Assistant Attorneys General, for appellee.

(Emphasis supplied.)

Thus, at the time of the adoption of the Official Code of Georgia Annotated, the General Assembly had reiterated its intent that a determinate sentence for a specific number of years would not be required in cases where the trial judge is authorized to and does impose life imprisonment. It follows that OCGA § 16-8-41 (b) read in conjunction with OCGA § 17-10-1 authorizes the imposition of a life sentence or a determinate sentence at the discretion of the trial judge.