Davis v. State, 37735

• Decision Date: 20 January 1982
• Docket Number: No. 37735,37735
• Citation: 286 S.E.2d 430,248 Ga. 783
• Parties: Billy Weeks DAVIS v. The STATE.
• Court: Georgia Supreme Court

Page 430

286 S.E.2d 430

248 Ga. 783

Billy Weeks DAVIS v. The STATE.

No. 37735.

Supreme Court of Georgia.

Jan. 20, 1982.

Terrance P. Leiden, Leiden & Hawk, Augusta, for Billy Weeks davis.

Richard E. Allen, Dist. Atty., William H. Lumpkin, Asst. Dist. Atty., Augusta, for the State.

CLARKE, Justice.

This appeal involves a constitutional challenge to Code Ann. § 26-1704(c). We hold the statutory scheme to be constitutional and affirm the trial court's ruling that there were no grounds for dismissal of the indictment.

Davis, a South Carolina resident, was indicted and charged with four counts of violating Code Ann. § 26-1704, the issuance of bad checks. ¹ The checks which were presented and delivered in Georgia were drawn on a South Carolina bank and the indictment charges Davis with the commission of felony violations under the authority of Code Ann. § 26-1704(c) which provided: "A person who commits criminal issuance of a bad check by the making, uttering or delivering of a check, draft, or order on a bank of another state shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than one nor more than five years or by a fine of up to $1,000, or both." Davis filed a motion to dismiss the indictment on the ground that Code Ann. § 26-1704(c) is unconstitutional. The trial court denied the motion and we granted an application for interlocutory appeal.

The parties have stipulated that had the drawee bank been a Georgia financial institution, Davis would be faced with misdemeanor charges. See Code Ann. § 26-1704(b). Davis contends that Code Ann. § 26-1704(c) which elevates the criminal issuance of a bad check to a felony if drawn on an out-of-state bank is unconstitutional in that it violates the Equal Protection Clause and the Privileges and Immunities Clause and the Commerce Clause of the United States Constitution and that it violates the Supremacy Clause in that it attempts to regulate interstate banking which is preempted by the Federal Reserve System and the regulations of the Federal Deposit Insurance Corporation.

The main thrust of appellant's constitutional argument is that the statute impermissibly infringes upon his constitutional right to travel from state to state, and must therefore be examined with strict scrutiny under the holding of Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Without question, "the right of interstate travel has been recognized and deemed a 'fundamental' concept of our federal union of states. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Whether this right is grounded in the Commerce Clause, the Privileges and Immunities Clause, the Fifth and Fourteenth Amendments, or elsewhere, has been discussed at great length but, 'All have agreed that the right exists.' 383 U.S. at 759 ." Garren v. State, 245 Ga. 323, 324, 264 S.E.2d 876 (1980). The cases relied upon by the appellant involve durational residency requirements which have a direct discriminatory impact based upon residency or length of residency. See Memorial Hospital v. Maracopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro, supra.

The classification scheme of the statute in question is not based upon residency. A person commits the crime of issuance of a bad check "when he makes, draws, utters, or delivers a check, draft or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee." Code Ann. § 26-1704(a). Code Ann. § 26-1704(b) provided for misdemeanor punishment upon conviction for issuance of a bad check. Code Ann. § 26-1704(c) provided that the issuance of a bad check on a bank of another state is a felony. The crime is complete when the check is made for present consideration. When a criminal offense is committed the right to travel may be qualified by the state. Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981). In Jones, the court upheld a criminal statute which elevated the crime of child abandonment from a misdemeanor to a felony should the offender leave the state. In the present case the General Assembly has set up a system that classifies the issuance of a bad check on an out-of-state bank as a felony...