Bowen v. Brown, 30200
| Decision Date | 28 October 1975 |
| Docket Number | No. 30200,30200 |
| Parties | Rufus E. BOWEN v. Bruce BROWN, Warden. |
| Court | Georgia Supreme Court |
Rufus E. Bowen, pro se; James C. Bonner, Jr., Jackson, for appellant.
Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
Appellant is presently confined in the Ware Correctional Institute, Ware County, Georgia. He has been sentenced in the following cases:
County Date Offense Sentence
-------- ------------- --------------------------- -------------------------
DeKalb May 25, 1972 Theft by Taking 8 years from imposition
Gwinnett May 30, 1972 Burglary 8 years from imposition
Gwinnett May 30, 1972 Theft by Taking 8 years from imposition
Decatur May 13, 1974 Escape 1 year to run consecutive
Ware Aug. 26, 1974 Possession of Deadly Weapon 1 year
He was remanded to custody following a habeas corpus hearing in the Superior Court of Ware County where he sought relief from the May 25, 1972, sentence in DeKalb Superior Court because he was not represented by counsel at trial, and the May 13, 1974, sentence in Decatur Superior Court because that sentence was changed, in his absence, to one year consecutive from a previous sentence to three years imposed on January 7, 1974. Held:
1. The transcript reveals that prior to the sentence on May 25, 1972, appellant admits he knew he was entitled to an attorney and admits that he waived his right to counsel. His testimony is supported by his statement signed prior to his guilty plea. Gay v. Smith, D.C., 294 F.Supp. 265; Kitchens v. Smith, 226 Ga. 667, 177 S.E.2d 87 (1970).
2. If appellant was sentenced to one year consecutive on May 13, 1974, he is entitled to attack that sentence by habeas corpus. Gay v. Smith, supra. If indeed, as appellant alleges, this sentence resulted from a resentencing after the appellant had commenced serving the original sentence, and after the sentencing court's original term of court had passed, the habeas court should have inquired into the validity of this sentence.
The case is remanded to the trial court to inquire into the validity of the sentence imposed on May 13, 1974, in the Superior Court of Decatur County.
Judgment affirmed in part and remanded.
All the Justices concur, except UNDERCOFLER, P.J., and HALL, J., who dissent from Division 2 and from the judgment.
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