Hood v. Carsten, S96A1761

• Decision Date: 07 March 1997
• Docket Number: No. S96A1761,S96A1761
• Parties: , 97 FCDR 799 Tommy Leon HOOD v. James CARSTEN, Sheriff.
• Court: Georgia Supreme Court

Page 525

481 S.E.2d 525

267 Ga. 579, 97 FCDR 799

Tommy Leon HOOD v. James CARSTEN, Sheriff.

No. S96A1761.

Supreme Court of Georgia.

March 7, 1997.

Ramon Javier Fajardo, Lawrenceville, for Tommy Leon Hood.

Daniel J. Porter, Dist. Atty., Nancy J. Dupree, Phil Wiley, George F. Hutchinson, III, Asst. Dist. Attys., Lawrenceville, for James Carsten.

Wayne M. Purdom, Decatur, for Amicus Curiae.

HUNSTEIN, Justice.

Appellant Tommy Leon Hood was indicted on charges of aggravated assault and stalking. As a condition of bond, Hood was ordered to have no contact with the victim or her place of business. Less than three months after being released on bond, Hood telephoned the victim at her home insisting that she meet with him. The victim informed the district attorney's office of the telephone call and expressed concern for her safety and that of her family. An assistant district attorney assigned to the case presented an ex parte motion to revoke bond to Judge Stark of the Gwinnett Superior Court. Judge Stark signed the order revoking bond on March 11, 1996 and scheduled a hearing on the bond revocation for March 14, 1996. On March 12, 1996, defense counsel was made aware of the order and the allegations upon which the bond revocation was based and was notified of the March 14 hearing date.

Hood appeared with counsel on March 14 for the scheduled hearing and immediately moved to recuse Judge Stark because he had signed the order revoking bond ex parte. After consideration of Hood's motion, Judge Stark recused himself and the matter was assigned to Judge Winegarden. Appellant was taken into custody at the conclusion of the March 14 hearing. Judge Winegarden scheduled a hearing for March 27, 1996 to consider Hood's motion to rescind the order revoking bond and petition for habeas corpus relief. Following the March 27 hearing at which the court did not review the underlying merits of the order revoking bond, the trial court denied both the motion to rescind and petition for habeas corpus. Hood appeals from the denial of his petition for habeas corpus and we reverse.

Hood contends he is entitled to habeas corpus relief because Judge Stark's order revoking bond was entered without notice or an opportunity to be heard in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. I, Par. I of the Constitution of the State of Georgia (1983). Both the Georgia and United States Constitutions prohibit the state from depriving "any person of life, liberty, or property, without due process of law." United States Const., amend. XIV, sec. 1; see also Ga. Const., supra. "The fundamental idea of due process is notice and an opportunity to be heard. [Cit.] Due process [does not guarantee] a particular form or method of state procedure. [Cit.]" Nix v. Long Mtn. Resources, Inc., 262 Ga. 506, 509, 422 S.E.2d 195 (1992). Rather, as the United States Supreme Court recognized in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976):

" '[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." [Cit.] "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

We are unaware of and the parties have not presented any specific guidelines under Georgia law pertaining to a trial court's power to revoke a bond. ¹ It is clear that trial courts have such power and the decision to revoke the appearance bond of a person charged with stalking lies within the discretion of the trial judge. See OCGA § 17-6-1. Because a bond revocation involves the deprivation of one's liberty, however, the trial court's decision to revoke bond must comport with at least minimal state and federal due process requirements. Morrissey, supra at 482, 92 S.Ct. at 2600-01 (liberty of parolee, although indeterminate, is valuable and must be seen as within the protection of the Fourteenth Amendment); Fuentes v. Shevin, 407 U.S. 67, 84, 92 S.Ct. 1983, 1996, 32 L.Ed.2d 556 (1972) (due process applies where nature of the interest is within contemplation of "liberty and property" language of the Fourteenth Amendment); Zachos v. Huiet, 195 Ga. 780, 786(2), 25 S.E.2d 806 (1943) (principles of due process "extend to every proceeding which may deprive a person of life, liberty, or property"); see also United States v. Delker, 757 F.2d 1390, 1397 (3d Cir.1985) (pre-trial detention implicates liberty interest and may not be imposed contrary to mandates of due process). The amount of process required must necessarily depend on the circumstances in each case.

In addition to aggravated assault, Hood was charged under Georgia's anti-stalking statute, OCGA § 16-5-90, ² a statute enacted for the express purpose of providing additional protections to victims. See also OCGA § 16-5-93 (providing stalking victims greater rights to notification of release of person charged with stalking). In direct contravention of the trial court's order that he not have any contact with the victim, ³ Hood called the victim and demanded that she meet with him. Under such circumstances, courts must be vested with authority to act promptly to protect the victim and enforce the bond conditions imposed. At the same time, we believe the state and federal due process clauses require at a minimum that a hearing be held within a reasonable time after arrest or the filing by the State of a motion to revoke bond while information is fresh and witnesses and evidence are available. Riggins v. State, 134 Ga.App. 941, 944, 216 S.E.2d 723 (1975) (decision to revoke appeal bond should be accompanied by at least minimal due process protections); see King v. Zimmerman, 632 F.Supp. 271, 277 (E.D.Pa.1986) (revocation of bail sua sponte, in chambers without providing notice or opportunity to be heard, is an arbitrary denial of due process); Hohman v. Hogan, 474 F.Supp. 1290, 1296 (D.Vt.1979) (defendant entitled to opportunity to present evidence in opposition to state's motion to revoke bail).

On March 11 the trial court entered its order revoking bond. Simultaneously, the court scheduled a hearing for March 14 on the State's motion to revoke bond and notice of the hearing was provided to Hood through his counsel. Hood was not arrested. Presumably, the March 14 hearing would have been structured to insure that the finding of a violation of a condition of bond and the exercise of the court's discretion to revoke bond were based on verified facts and to allow Hood an opportunity to present witnesses and evidence on his behalf. Because Hood moved to recuse Judge Stark at the March 14 hearing, however, the hearing on the merits of the State's motion to revoke bond did not proceed. The March 27 hearing addressed not the merits of the bond revocation but Hood's motion to rescind the order revoking bond and his petition for habeas corpus. Accordingly, Hood remains incarcerated having had no formal bond revocation hearing, no disclosure of the evidence against him, no opportunity to present evidence or witnesses or to confront witnesses, ⁴ and no written finding as to the evidence relied on by the court and reasons for revoking his bond. Under these facts, we find the trial court erred in failing to hold a hearing within a reasonable time after arrest or the filing of the State's motion to revoke bond to determine whether his bond should be reinstated and, therefore, Hood's petition for habeas relief should have been granted. Upon remittitur and after notice to Hood in compliance with OCGA § 17-1-1, the trial court is authorized to hold a hearing to revoke Hood's bond should the State so move.

Our decision in this case turns on the trial court's complete failure to provide a meaningful opportunity to be heard. We do not hold or intimate in this opinion that a court is precluded from ordering the arrest of a defendant believed to have violated a condition of bond where the arrest order is supported by the personal knowledge of the judge or by affidavit or testimony establishing a reasonable belief that a violation of a condition of bond has occurred. Nor is the State limited to moving for the revocation of bond when a defendant released on bond commits a subsequent criminal violation. The State is free to have the defendant arrested for the subsequent offense, to seek the revocation of bond for the original offense, or to pursue both courses simultaneously.

Judgment reversed.

All the Justices concur, except CARLEY, J., who concurs specially.

CARLEY, Justice, concurring specially.

"In order for bail to be revoked, accused must have notice and an opportunity to be heard." 8 CJS 105, Bail, § 84. Thus, I agree with the majority that the revocation of Hood's bail must be predicated upon procedures which comport with due process. I also agree that, under the facts of this case, a reversible violation of Hood's due process rights occurred when he was incarcerated pursuant to the trial court's ex parte revocation order of March 11, 1996. As the majority notes, however, until such time as rules, regulations and procedures are promulgated pursuant to the authority of Uniform Superior Court Rule 27.1, there are no existing guidelines governing the revocation of bail. For that reason, I write separately to express my opinion as to how the issue of the revocation of Hood's bail could have been handled consistent with due process requirements. I believe that the revocation of Hood's bail is properly analogized to the revocation of probation based upon the alleged commission of another criminal act.

A defendant commits the offense of "stalking" when he or she "contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person." OCGA § 16-5-90...