Opinion

Holman v. State

  • 43 Ala. App. 509
  • 193 So. 2d 770
  • 1966 Ala. App. LEXIS 574
Court
Alabama Court of Appeals
Filed
Oct 11, 1966
Status
Published
On the bench
Cates
Cited by
14 cases
Authority
More cited than 8.2%

The opinion

On Rehearing

Appellant’s argument boils down to a contention that a suspension of execution of sentence “pending good behavior” is not a form of probation. This contention, when analyzed in the light of Montgomery v. State, 231 Ala. 1 , 163 So. 365 , 101 A.L.R. 1394 , would render the original sentence invalid as ultra vires. Nevertheless, the adjudication of guilt would stand.

We consider that, in view of the history and text of Amendment 38, supra, the power to suspend a sentence (other than for a short period to let a prisoner settle his affairs and perhaps pay his lawyer) can only be exercised when coupled with an order for probation.

Hence, we indulge the presumption that “pending good behavior” was a form of probation whereunder the prisoner was to be on his honor rather than under a probation officer.

Application overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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