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Banishment as a Tool in the Judge’s Arsenal

by merlin on February 2nd, 2015
  • Sumo

Recently, a reader talked about their encounter with the judicial punishment of banishment.  They were astonished that such a thing is legal, and also wondered why it isn’t done uniformly in every criminal case that involves definite victims and definite perpetrators.  I informed them that the act is perfectly legal (technically, to be Constitutional, there must be at least one State in Georgia that the person is not banished from), and that there is authority for the act being done, but that it is a very severe sanction since it applies to so many aspects of a person’s life.  The case below is Parkerson v. State, found at 156 Ga.App. 440 , 274 S.E.2d 799.  It is concerned with the power of the Court over other persons beyond the accused for whom it is deciding the sentence, providing insight into just why a Court can’t simply banish a person convicted of a crime from the State altogether.  It was decided in 1980, and it provides a good discussion of banishment as a tool available to a judge in crafting an offender’s sentence:

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        Alva J. Hopkins, III, Folkston, for appellant.

        Dewey Hayes, Dist. Atty., Willis Blacknall, Asst. Dist. Atty., for appellee.

        SOGNIER, Judge.

        Appellant was convicted of aggravated assault and received a sentence of 10 years confinement to be served on probation. The trial court ordered as special conditions of probation that: “Defendant is to remove himself and his wife immediately from the Waycross Judicial Circuit, particularly Charlton County and specifically from where he is now living. Defendant is further ordered to stay out of the Waycross Judicial Circuit during his entire probation period.”

        Appellant’s sole enumeration of error is that the trial court erred in ordering as a special condition of probation that appellant remove his wife from the Waycross Judicial Circuit. We agree.

        Code Ann. § 27-2709 gives jurisdiction to the trial court to determine the question of probation of a defendant who has been found guilty of a criminal offense; Code Ann. § 27-2711 permits the court to determine the terms and conditions of probation, and lists 10 conditions of probation. It is well settled that the conditions enumerated in that section are not exclusive, but the trial court may impose other requirements not specifically listed therein. Wood v. State, 150 Ga.App. 582, 583, 258 S.E.2d 171 (1979); Gay v. State, 101 Ga.App. 225, 113 S.E.2d 223 (1960). Banishment of one convicted of a crime from a county or counties has been held to be a reasonable condition of probation. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

        We know of no statute or other authority, however, which grants jurisdiction to the trial court to banish a person other than the convicted criminal as a condition of his probation. Not only would such a condition unreasonably restrict an innocent party’s freedom to travel, but it imposes a condition on the probationer over which he has no control. Such a condition, banishing appellant’s wife from the Waycross Judicial Circuit is, therefore, invalid and unenforceable.

        Judgment affirmed with direction that the above condition, relating to the wife only, be deleted from the trial court’s order of probation.

        DEEN, C. J., and BIRDSONG, J., concur.

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