Opinion
66001.
DECIDED MARCH 17, 1983.
Burglary. Fulton Superior Court. Before Judge Eldridge.
Derek H. Jones, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.
This is an appeal from a probation revocation. On January 10, 1980, the defendant pled guilty to the offense of burglary and was sentenced to pay a $300 fine and to serve three years on probation under the provisions of the Act for Probation for First Offenders (OCGA § 42-8-60 et seq. (Code Ann. § 27-2727 et seq.)). The sentencing order provided that "[i]f such probation is revoked, the court may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law." Following a hearing held on November 23, 1982, the defendant's probation was revoked, and he was sentenced to serve 10 years. On appeal, he contends that the trial court violated the original sentencing order by imposing a new sentence greater than that originally imposed and that the court erred in failing to give him credit for time served on probation. Held:
The state concedes that both the defendant's contentions are meritorious. Pursuant to Stephens v. State, 245 Ga. 835 ( 268 S.E.2d 330) (1980), the sentence is vacated, and the case is remanded for resentencing.
Judgment vacated and case remanded. Deen, P. J., and Carley, J., concur.