Earp v. Boylan, S90A0195

• Decision Date: 20 April 1990
• Docket Number: No. S90A0195,S90A0195
• Parties: EARP, Commr. v. BOYLAN.
• Court: Georgia Supreme Court

Page 577

390 S.E.2d 577

260 Ga. 112

EARP, Commr. v. BOYLAN.

No. S90A0195.

Supreme Court of Georgia.

April 20, 1990.

Michael J. Bowers, Atty. Gen., Terry L. Long, Atlanta, Ga., for earp.

Merck K. Smith, Casper Rich, Rich, Bass, Kidd & Witcher, Decatur, Ga., for Boylan.

CLARKE, Chief Justice.

Appellee Boylan was convicted of three separate offenses of driving with a suspended license between February 1, 1984, and October 18, 1985. The Department of Public Safety (Department) thereafter declared him an habitual violator pursuant to OCGA § 40-5-58, and revoked his driver's license on December 6, 1985. The record shows that the Department issued appellee a probationary license so that he may drive to and from work.

On December 9, 1988, appellee filed a petition for habeas corpus seeking relief from the revocation of his driver's license. The habeas court found that appellee did not knowingly waive his right to counsel at any of his three trials for driving with a suspended license. The habeas court determined that the three criminal dispositions which had resulted in appellee's habitual violator status had substantially restrained appellee's liberty and therefore he was entitled to habeas relief. The habeas court ordered the Department to rescind appellee's status as an habitual violator, and to return his driver's license.

At the same time the habeas court entered a separate order denying the Department's motion to dismiss appellee's habeas petition for failure to timely file it in accordance with OCGA § 40-13-33(b). The habeas court determined that OCGA § 40-13-33(a) and (b) unconstitutionally suspends the writ of habeas corpus.

1. The habeas court found that OCGA § 40-13-33(a) and (b) suspend the writ of habeas corpus in violation of U.S. Const. Art. I, Sec. IX, Cl. II and Ga. Const. Art. I, Sec. I, Par. XV.

a) In Hardison v. Martin, 254 Ga. 719, 721, 334 S.E.2d 161 (1985), we held that

one not in physical custody may petition for habeas corpus to challenge the revocation of his driver's license on the ground that the underlying sentence upon which the revocation is based is void for a reason not appearing on the face of the record.

In response to Hardison the legislature enacted OCGA § 40-13-33. Subsection (a) of this statute provides that any habeas corpus challenge which may be filed to a misdemeanor traffic offense must be filed within 180 days of conviction. Under subsection (b), where, as in this case, the conviction challenged became final prior to March 28, 1986, the habeas petition must have been filed within 180 days of March 28, 1986.

There are numerous instances in which this court has construed the Georgia Habeas Corpus Act, OCGA § 9-14-1 et seq. to provide greater protections than the Federal Constitution requires. See, e.g., McDuffie v. Jones, 248 Ga. 544, 545 fn. 1, 283 S.E.2d 601 (1981); Zant v. Cook, 259 Ga. 299, 379 S.E.2d 780 (1989). It is likewise clear that the holding of Hardison goes beyond federal constitutional and statutory habeas corpus requirements. The federal courts have uniformly held that the federal habeas corpus statute, 28 U.S.C. § 2254, does not give them jurisdiction to entertain a habeas corpus petition where a petitioner who is not in custody alleges that his liberty has been restrained because his driver's license has been revoked or suspended. Westberry v. Keith, 434 F.2d 623 (C.A. 5 1970) ¹; Harts v. State of Indiana, 732 F.2d 95 (C.A. 7 1984); Whorley v. Brilhart, 359 F.Supp. 539 (E.D.Va.1973).

Because Hardison v. Martin provides greater habeas corpus protection than is required by the United States Constitution, we hold that the legislature may place a procedural limitation on that protection without suspending the writ within the meaning of U.S. Const. Art. I, Sec. IX, Cl. II.

b) As the Department points out in its brief, there are a number of recognized procedural limitations on the writ of habeas corpus which do not have the effect of suspending it in violation of the Georgia Constitution. See OCGA § 9-14-51 (limitation on successive habeas corpus petitions); Reed v. Hopper, 235 Ga. 298, 219 S.E.2d 409 (1975) (conditions which legislature placed on writ of habeas corpus in the 1975 Habeas Corpus Act do not on their face suspend writ); Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370 (1985) (failure to make a timely objection to an error or deficiency in the trial court constitutes a waiver for purposes of habeas corpus review, absent statutory exceptions of cause, prejudice or miscarriage of justice); Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985) (failure to enumerate as error on appeal any alleged error in trial court constitutes waiver of habeas review); Patterson v. Earp, 257 Ga. 729, 363 S.E.2d 248 (1988) (failure to file application to appeal bars review of habeas claim under Hardison v. Martin ).

We hold that the procedural limitations of ...