Cozzolino v. Hubert

Almand, Justice. Ralph R. Cozzolino in his petition for a writ of mandamus alleged that he was a prisoner in the Georgia State Prison serving (1) a sentence of 10-20 years imposed by Fulton Superior Court on February 11, 1957, and (2) a sentence of 20-20 years imposed by DeKalb Superior Court on February 9, 1959, “to follow any other Georgia sentence already imposed upon defendant.” He prayed that the defendant, H. 0. Hubert, Jr., Judge of DeKalb Superior Court, be required to recompute the DeKalb sentence so that it would run concurrently with the Fulton sentence. The petition for the writ was dismissed. Error is assigned on this order. Held: Appellant’s petition fails to show that the appellee as Judge of DeKalb Superior Court was under any legal duty to recompute the DeKalb sentence. He attempts to charge the defendant judge as having such a duty under the Act of 1964 (Ga. L. 1964, p. 494) which provides “where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, such sentences shall be served concurrently, the one with the other, unless otherwise expressly provided therein. Section 2. The provisions of this Act shall govern and shall be followed by the State Board of Corrections in the computation of time and shall apply to sentences hereinbefore and hereinafter given.” Said Act does not impose any duty upon the appellee judge. Mandamus will not issue to compel an officer to perform acts which do not come within his official duties. Holtzclaw v. Riley, 113 Ga. 1023 (1) (39 SE 425); Cureton v. Wheeler, 172 Ga. 879 (159 SE 283). It was not error to dismiss the petition. Judgment affirmed. All the Justices concur.