Brown v. Caldwell, 28577
| Decision Date | 06 February 1974 |
| Docket Number | No. 28577,28577 |
| Citation | 203 S.E.2d 542,231 Ga. 677 |
| Parties | Joe Nathan BROWN v. E. B. CALDWELL. |
| Court | Georgia Supreme Court |
James C. Bonner, Jr., Jackson, for appellant.
Arthur K. Botlon, Atty. Gen., B. Dean Grindle, Jr., William F. Bartee, Jr., Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Appellant was denied habeas corpus relief in the Superior Court of Tattnall County and remanded to the custody of the appellee-warden to serve a sentence imposed upon appellant in the Superior Court of Thomas County following his plea of guilty in that court.
This appeal, from the habeas corpus trial court, challenges the jurisdiction of the Superior Court of Thomas County to accept appellant's original plea of guilty and to impose sentence upon appellant.
The accusation to which appellant plead guilty in Thomas Superior Court charged appellant unlawfully took property from one J. P. King by the use of a butcher knife. Appellant was represented by counsel at the time he entered his plea of guilty and he waived indictment by grand jury on the charge. Pursuant to his plea, the Judge of the Superior Court to Thomas County sentenced appellant to serve a term of 15 years. The accusation and sentence designate the offense as armed robbery.
The sole issue presented for decision is whether appellant plead guilty to a capital offense and received a sentence therefor or plead guilty to and was sentenced for a lesser included offense. If appellant plead guilty to, and was sentenced for, a capital offense, the Superior Court of Thomas County lacked jurisdiction and the proceedings are void. This result would necessarily obtain as appellant could not lawfully waive indictment by a grand jury for a capital offense. See Webb v. Henlery, 209 Ga. 447, 74 S.E.2d 7. On the other hand, if the plea of guilty and sentence were entered for an offense less than a capital felony, the plea and sentence are lawful as appellant was represented by counsel and waived grand jury indictment. See Code Ann. § 27-704.
Appellant argues that the record conclusively establishes he plead guilty to, and was sentenced for, the capital offense of armed robbery. This conclusion is said to be demanded because the offense was denominated as armed robbery on the back of the accusation and on the sentence, and was also recogized as armed robbery in the appellee's answer filed in the habeas corpus case.
The habeas corpus trial court, after a hearing, concluded in its written order denying appellant relief, that appellant plead guilty to, and was sentenced for, the offense of robbery by intimidation, a noncapital offense, rather than armed robbery, the capital offense.
The order of the trial court, in the habeas corpus proceeding, recognizes that evidence of a robbery by the use of an offensive weapon will authorize a conviction of robbery by intimidation. In other words, robbery by intimidation is a lesser included offense...
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...Justice Kennedy's concurrence in Seibert ," as we directed. Abbott I , 303 Ga. at 304, 812 S.E.2d 225 ; see also Brown v. Caldwell , 231 Ga. 677, 678, 203 S.E.2d 542 (1974) (presumption of regularity and legality in trial court proceedings overcome and case remanded). Accordingly, we vacate......
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Keener v. MacDougall
...case. This clearly was settled law in Georgia until passage of the two Acts of the General Assembly in 1972. See Brown v. Caldwell, 231 Ga. 677, 203 S.E.2d 542 (1974). In the House Bill (Ga.L.1972, pp. 386-387), provision was made for persons accused of capital felonies to waive grand jury ......
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