Hardison v. Martin

• Decision Date: 10 September 1985
• Docket Number: No. 42020,42020
• Citation: 334 S.E.2d 161,254 Ga. 719
• Parties: HARDISON, Comm. v. MARTIN.
• Court: Georgia Supreme Court

Page 161

334 S.E.2d 161

254 Ga. 719

HARDISON, Comm. v. MARTIN.

No. 42020.

Supreme Court of Georgia.

Sept. 10, 1985.

Rehearing Denied Sept. 25, 1985.

Michael J. Bowers, Atty. Gen., Jennifer L. Hackemeyer, Staff Asst. Atty. Gen., Atlanta, for Hugh Hardison, Com'r.

Jerry L. Steering, Howard Tate Scott, Athens, for Randall Martin.

GREGORY, Justice.

On June 21, 1980, appellee Martin was charged in Clarke County with the offenses of driving under the influence of alcohol, running a red light and possession of marijuana. On June 24, 1980, Martin was again charged with driving under the influence, and also with attempting to elude a police officer. On September 23, 1980, Martin pled nolo contendere to the DUI offense of June 21 as well as to the possession charge. He pled guilty to the June 24 DUI charge, the charge of running a red light, and the offense of attempting to elude a police officer. Subsequently Martin changed his plea to the offense of attempting to elude a police officer, OCGA § 40-6-395(a), from guilty to nolo contendere. On February 18, 1981, Martin was sentenced to serve 48 months on probation and fined $700 for these combined offenses. In March, 1983, his probation was terminated.

There was apparently a delay in the transmission of Martin's record of convictions to the Department of Public Safety (Department). At some point during 1983 Martin was informally notified by the Clarke County District Attorney's office that he had been declared an habitual violator by the Department pursuant to OCGA § 40-5-58 because of the convictions for his June, 1980 offenses. In December, 1983, Martin filed this petition for habeas corpus in Clarke Superior Court in which he maintained that his conviction for the June 24, 1980 offense of attempting to elude a police officer should be set aside as his plea to this charge had not been voluntarily entered. Appellant Hardison was named respondent to the petition in his official capacity as Commissioner of the Department. On February 2, 1984, Martin was personally served with an official notice that he had been declared an habitual violator by the Department, and that his license was to be revoked for a period of five years from that date. Martin's petition to the Department to reinstate his license was denied on March 9, 1984. Martin appealed this decision to the Superior Court of Clarke County. OCGA § 40-5-66. This de novo appeal has been held in abeyance, however, pending a determination of Martin's petition for habeas corpus.

The habeas court concluded that Martin's plea to the offense of attempting to elude a police officer had not been voluntarily made, ¹ and that Martin was suffering the collateral consequences of this plea in that the Commissioner had declared Martin to be an habitual violator, and had revoked Martin's driver's license. The habeas court found the revocation of Martin's driver's license to be a restraint on his liberty for which the remedy of habeas corpus would lie.

The habeas court ordered the Commissioner to strike from departmental records both Martin's conviction of attempting to elude a police officer and his classification as an habitual violator, and to reinstate Martin's driver's license. The Commissioner appeals. OCGA § 9-14-52(c). We note initially that the Commissioner does not appeal the trial court's substantive finding that Martin's plea to the offense of attempting to elude a police officer was not voluntarily made.

1. The Commissioner argues that Martin is not entitled to a writ of habeas corpus in this case because "he is not 'in custody' within the meaning of the Georgia habeas statute," OCGA § 9-14-1(c). This section provides: "Any person restrained of his liberty as a result of a sentence imposed by any state court of record may seek a writ of habeas corpus to inquire into the legality of the restraint." [Emphasis supplied.]

While "the chief use of habeas corpus has been to seek the release of persons held in actual, physical custody in prison or jail[,]" Jones v. Cunningham, 371 U.S. 236, 238, 83 S.Ct. 373, 374, 9 L.Ed.2d 285 (1963), the remedy has in modern times been made available where there are significant restraints on the petitioner's liberty other than physical custody. Id; Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974). The writ of habeas corpus may be used "to relieve the stigma and burden of an invalid sentence," Atkins v. Hopper, 234 Ga. 330, 333, 216 S.E.2d 89 (1975), or where the petitioner has " 'a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.' " Carafas v. LaVallee, supra, 391 U.S. at 237, 88 S.Ct. at 1559.

Martin maintains that his classification by the Commissioner as an habitual violator and the revocation of his driver's license for a period of five years has placed a substantial restraint on his liberty. ² Specifically he alleges that, following the revocation of his license, he was fired from his job as a car salesman, and, as a further consequence of his inability to drive, was unable to obtain employment for seven months. The habeas court found that as a result of the Commissioner's actions, Martin "has suffered great trouble and expense, and his economic situation has been adversely affected."

We agree that the revocation of one's driver's license may place a significant restraint on his liberty within the meaning of OCGA § 9-14-1(c). Therefore, we hold 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. The petitioner must be able to demonstrate that the revocation significantly restrains his liberty, or that other adverse collateral consequences flow from his sentence of conviction.

The fact that Martin's probation was terminated prior to the filing of his petition for habeas corpus does not change this result. "The mere fact that the state sentence has been completely served should no longer be a bar to attacking it through habeas corpus even though the petition is not initially filed until after the sentence is completed." Parris, supra, 232 Ga. at 690, 208 S.E.2d 493; Carafas v. LaVallee, supra, 391 U.S. at 237, 88 S.Ct. at 1559.

2. The Commissioner argues that even if habeas corpus is a proper remedy, he is not the proper party to this action. Rather, the Commissioner takes the position that the State of Georgia should have been named respondent in this action. We do not agree.

In the traditional habeas corpus case the respondent will be the person who has actual physical custody of the petitioner. See, e.g., OCGA §§ 9-14-45 and 9-14-46. Where the petitioner is not in physical custody, but alleges in his habeas petition that his liberty is otherwise restrained, the proper party respondent is that person or entity so restricting the petitioner's freedom. See Jones v. Cunningham, supra, 371 U.S. at 241, 83 S.Ct. at 376. ³ In this case the Commissioner, in the exercise of his statutory duty under OCGA § 40-5-58, is restricting the petitioner's liberty. The Commissioner is the party with the greatest interest in the revocation of the petitioner's license, and, therefore, is the proper party to this action.

3. The Commissioner argues that habeas relief should not be available to Martin because he has failed to pursue his right to a de novo appeal from the revocation of his license in the superior court. OCGA § 40-5-66.

Martin's attack on his conviction of attempting to elude a police officer is collateral to the issues which may be raised in the de novo appeal under OCGA § 40-5-66. A collateral attack on an underlying conviction which is used to support a license revocation may not be made in the de novo appeal unless that...