Davis v. State, A18A0901

• Decision Date: 24 October 2018
• Docket Number: A18A0901
• Citation: 820 S.E.2d 791,347 Ga.App. 757
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 757

820 S.E.2d 791

DAVIS

v.The STATE.

A18A0901

Court of Appeals of Georgia.

October 24, 2018

Jennifer Jayne Campbell, Atlanta, for Appellant.

Julia Anne Fessenden Slater, Ray Winston Daniel, for Appellee.

Ray, Judge.

Dewey Davis appeals the trial court’s partial denial of his plea in bar, arguing that the State may not prosecute him for certain 1996 crimes because the statute of limitation has run. We find, however, that a plea in bar is not the proper mechanism for Davis to challenge his pre-indictment detention and, thus, we affirm.

When we review "a trial court’s decision on a plea in bar, we conduct a de novo review of the legal issues. Further, we must accept the trial court’s findings on disputed facts and witness credibility unless those findings are clearly erroneous." State v. Bair , 303 Ga. App. 183, 692 S.E.2d 806 (2010) (citations omitted).

The trial court found that in 1996, a woman was the victim of a rape, aggravated sodomy, aggravated assault, and burglary. Although the trial court did not so find, Davis and the State agree that the crimes occurred on June 4, 1996. The alleged perpetrator was unknown until March 2009, when Davis was identified by DNA evidence. The parties agree that Davis was incarcerated when he was identified, but that he was released from prison in June 2016, and since then has been held on these subsequent charges in the Muscogee County Jail. He has not been indicted.

Davis filed a plea in bar, alleging that the state was barred from prosecuting him for any charges arising from the 1996 crime because the statute of limitation had run. The superior court ruled that the state could not prosecute Davis for aggravated assault or burglary because the four-year statute of limitation had run, but that the state could prosecute Davis for rape and aggravated sodomy because the statute of limitation on those charges had not run.¹ We granted Davis’ application for interlocutory appeal, and this appeal followed.

In related enumerations of error, Davis contends that the trial court erred in denying his plea in bar as to the rape and aggravated sodomy charges. We disagree.

A special plea in bar is "[a] plea that, rather than addressing the merits and denying the facts alleged, sets up some extrinsic fact showing why a criminal defendant cannot be tried for the offense charged ." (Emphasis supplied.) Black’s Law Dictionary (10th ed. 2014). OCGA § 17-7-110 provides, "[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court." (Emphasis supplied). Here, there has been no arraignment. Although Uniform Superior Court Rule 31.1 states that "special pleas shall be made and filed at or before the time set by law[,]" the fact remains that there can be no challenge to an indictment through a special plea in bar until there is an indictment filed. (Emphasis supplied).

That is not to say that individuals who allege they are being illegally detained are without recourse to challenge the actions of the State prior to being indicted. A writ of habeas corpus is employed "to ensure that [a] person’s imprisonment or detention is not illegal." Black’s Law Dictionary (10th ed. 2014). See OCGA § 9-14-1 (a) ("Any person restrained of his liberty under any pretext whatsoever ... may seek a writ of habeas corpus to inquire into the legality of the restraint."). The purpose of a petition for writ of habeas corpus is not to correct errors of fact, but to determine whether a petitioner’s constitutional rights have been violated. Herrera v. Collins , 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Habeas corpus is a civil proceeding and does not function "to determine the guilt or innocence of one accused of crime." (Citations and punctuation omitted.) Paulk v. Sexton , 203 Ga. 82, 82 (2), 45 S.E.2d 768 (1947). Instead, "[a] writ of habeas corpus looks only to the lawfulness of the present confinement." Balkcom v. Hurst , 220 Ga. 405, 405, 139 S.E.2d 306 (1964).

Because Davis alleges that he is being unlawfully detained before the indictment against him has been filed, the proper remedy is to file a petition for writ of habeas corpus. See Edvalson v. State , 339 Ga. App. 348, 352, 793 S.E.2d 545 (2016) ("[I]t is the Fifth Amendment’s Due Process Clause ... that protects a defendant from pretrial punishment. Thus, the appropriate remedy for pretrial punishment ... is to bring a petition for habeas corpus or other proceeding under the Due Process Clause."). See e. g. Jones v. Grimes , 219 Ga. 585, 587 (1) (b), 134 S.E.2d 790 (1964) (the appropriate remedy for excessive bail is a petition for writ of habeas corpus). That is not the avenue taken by Davis so far; consequently, the trial court did not err in denying Davis’s plea in bar because that was not the proper mechanism to challenge his detention. In so holding, we express no opinion as to the legality of Davis’ detention or the merits of his argument that the statute of limitations has expired on the prosecution at issue here.

Judgment affirmed.

Rickman, J., concurs. McFadden, P.J., dissents.*

* THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF APPEALS RULE 33.2.

I respectfully dissent. Davis is being held—but has not been indicted for—a rape and aggravated sodomy that occurred in 1996. The seven-year statute of limitation has expired. His plea in bar was a proper way to challenge his incarceration and was not premature. So the trial court erred in denying it.

1. Plea in bar .

I agree with the majority that the Black’s Law Dictionary’s definition of "plea in bar" is on point: A plea in bar is a plea "that seeks to defeat the ... prosecutor’s action completely and permanently." Black’s Law Dictionary (10th ed. 2014). More particularly, a special plea in bar is "[a] plea that, rather than addressing the merits and denying the facts alleged, sets up some extrinsic fact showing why a criminal defendant cannot be tried for the offense charged ." Id. (Emphasis added.)

So the issue before us turns on whether Davis has been "charged." He has. A person who has been arrested has been "charged." See OCGA § 17-4-41 ("It is the intent of these requirements [regarding affidavits for arrest warrants] that the accused person shall be informed of the specific charge against him and of all basic pertinent particulars pertaining thereto.") (emphasis added); OCGA § 17-7-23 (b) ("Any court, other than a superior court or a state court, to which any charge of a violation of Code Section 16-11-126 [, concerning possessing and carrying firearms,] is referred for the determination [of probable cause] shall thereafter have and exercise only the jurisdiction of a court of inquiry with respect to the charge and with respect to any other criminal violation arising from the transaction on which the charge was based and shall not thereafter be competent to try the accused for the charge or for any other criminal violation arising from the transaction on which the charge was based, irrespective of the jurisdiction that the court otherwise would have under any other law.") (emphasis added); Jackson v. State , 225 Ga. 39, 42-43, 165 S.E.2d 711 (1969) ("the purpose of a commitment hearing is simply to determine whether there is probable cause to believe the accused guilty of the crime charged, and if so, to bind him over for indictment by the grand jury").

According to the majority, Davis’s sole remedy is habeas corpus. I agree that habeas is an available remedy. But it is only a partial remedy.

Because the statute of limitation has expired, Davis is entitled to a permanent bar against prosecution of him for these crimes. That is what a plea in bar is for. See Jenkins v. State , 278 Ga. 598, 604 S.E.2d 789 (2004) (addressing the procedure for litigating a plea in bar based upon the statute of limitation).

Contrary to the majority, the writ of habeas corpus is not a sufficient remedy. Such a writ would not address the legality of future prosecutions. Habeas corpus "is instituted for the sole purpose of having the person restrained of his liberty produced before the judge, in order that the cause of his detention may be inquired into and his status fixed." Simmons v. Ga. Iron & Coal Co. , 117 Ga. 305, 310, 43 S.E. 780 (1903). "The sole question to be decided in the habeas corpus proceeding [is] whether the confinement of the prisoner was legal at the time of the hearing . Habeas corpus proceedings cannot be used to test the legality of possible future imprisonment. " Stynchcombe v. Hardy , 228 Ga. 130, 131 (1), 184 S.E.2d 356 (1971) (citations omitted; emphasis added). "[T]he judgment does not fix the rights of any one interested, further than to declare that the person detained must be restored to liberty." Simmons , 117 Ga. at 310, 43 S.E. 780.

2. The plea in bar was not fatally premature .

In declaring Davis’s plea in bar premature, the majority invents a requirement not supported by existing law. OCGA § 17-7-110 says nothing about a date before which a motion may not be filed. It provides, "All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court." Neither does Uniform Superior Court Rule 31. It provides, "All motions, demurrers, and special pleas shall be made and filed at or before the time set by law unless time therefor is extended by the judge in writing prior to trial." (emphasis added).

I have found no cases suggesting that a plea in bar is premature if filed before indictment. On the contrary, in State v. Dempsey , 290 Ga. 763, 765 (1), 727 S.E.2d 670 (2012), our Supreme Court held that "[u]nder the plain language of [ OCGA § 17-7-110 ], any pretrial motion will be considered timely if made before ten days after the date of the arraignment." (Emphasis added). OCGA § 17-7-110 establishes the deadline by which a pretrial motion must be filed; it...