Irvin, In re

• Decision Date: 04 April 1985
• Docket Number: No. 41525,41525
• Parties: In re IRVIN, Sheriff.
• Court: Georgia Supreme Court

Page 215

328 S.E.2d 215

254 Ga. 251

In re IRVIN, Sheriff.

No. 41525.

Supreme Court of Georgia.

April 4, 1985.

Peter Zack Geer, Geer & Rentz, Albany, for petitioner.

Brown Moseley, Dist. Atty., Bainbridge, for respondent.

Michael J. Bowers, Atty. Gen., George P. Shingler, Asst. Atty. Gen., amicus curiae.

GREGORY, Justice.

In July, 1983, four individuals were indicted in Baker County on drug trafficking charges involving 400 pounds of cocaine. On August 5, 1983, these individuals were arraigned. Immediately following arraignment and while all parties were present, the Baker County District Attorney stated he wished to address the court on the issue of the security of the Baker County jail. The District Attorney called petitioner, the Sheriff of Baker County, to testify in this matter. Petitioner testified that, including the four individuals involved in this proceeding, he had seven prisoners secured in four jail cells. He further testified that his staff included two full-time deputies, one part-time deputy, and three jailers. The District Attorney then inquired whether petitioner felt he had "the proper personnel and facilities to properly maintain the security and custody of these defendants." Petitioner responded, "I don't think so at this time because I have seven in jail."

The trial court then orally ordered that two of the prisoners be transferred to the Calhoun County jail; that one prisoner be transferred to the Grady County jail, and that Stephen Earl Brown be transferred to the Decatur County jail.

Each of the prisoners, with the exception of Brown, was transferred accordingly. On August 10, 1983, Brown escaped from the Baker County jail.

On August 12, 1983, the trial court issued a rule nisi, ordering petitioner to appear before the court and show cause why he should not be held in contempt for violating the court's transfer order. The trial court further ordered the District Attorney to investigate and present evidence on this matter. Following a hearing the trial court found petitioner in wilful contempt of the August 5, 1983, transfer order. The trial court imposed a $500 fine, sentenced petitioner to twenty days in jail and suspended petitioner as Sheriff of Baker County "until further order of the Court."

Petitioner appealed to the Court of Appeals, arguing that he could not be held in wilful contempt of the transfer order since under the holding of Howington v. Wilson, 213 Ga. 664, 665, 100 S.E.2d 726 (1957), "the sheriff and not the judge of the court has the authority to transfer a prisoner awaiting trial to a jail in another county...." Relying on Revel v. State, 26 Ga. 275 (1858), and Whiddon v. State, 160 Ga.App. 777, 287 S.E.2d 114 (1982), the Court of Appeals determined that the trial court had the authority under these circumstances to transfer the prisoners, and affirmed the trial court's finding that petitioner was in wilful contempt of the trial court's transfer order. However, the Court of Appeals reversed that portion of the trial court's order indefinitely suspending petitioner as sheriff. See In Re: Irvin, Sheriff, 171 Ga.App. 794, 321 S.E.2d 119 (1984).

We granted certiorari in this case to determine (1) whether the Court of Appeals erred in holding that Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957), supra, must yield to Revel v. State, 26 Ga. 275 (1858), supra; and (2) whether the Court of Appeals erred in affirming the trial court's finding of wilful contempt.

1. In Revel v. State, 26 Ga. 275 (1858), supra, following the defendant's conviction for murder the Crawford County Superior Court entered an order transferring him to the jail of another county "for safekeeping."

It is not clear from the opinion whether an issue of the safety or security of the jail was presented to the trial court, or whether the court entered the order sua sponte. The defendant was transferred, and thereafter the Crawford County jail was destroyed by fire. On appeal defendant argued the trial court erred in ordering the transfer. This court held that "[i]f the jail of the county, where a conviction is had in a criminal case, is insecure, it is competent for the court to order the prisoner to be committed to the jail of another county for safekeeping." 26 Ga. at 276.

In Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957), supra, the Jackson Superior Court ordered, sua sponte, the transfer of a prisoner prior to trial because his presence in the Jackson County jail would " 'tax the jail facilities of [that] county . . . needed for the handling of other prisoners.' " 213 Ga. at 664, 100 S.E.2d 726. This court, after acknowledging the statutory administrative authority vested in the sheriff to transfer prisoners when the jail of his county is not safe, OCGA § 42-4-4(a)(3), held "the sheriff and not the judge of the court has the authority to transfer a prisoner awaiting trial to a jail in another county, and then, only when the jail in the county where the prisoner is confined is 'in an unsafe condition.' " Id.

In Whiddon v. State, 160 Ga.App. 777, 287 S.E.2d 114 (1982), a convicted prisoner challenged a sua sponte order by the trial court, transferring her to another jail pending the outcome of her appeal. The Court of Appeals recognized the sheriff's authority under OCGA § 42-4-4(a)(3), supra, to transfer a prisoner when the county jail is not safe, and the corresponding lack of statutory authority in the trial court to order, sua sponte, a transfer under similar circumstances. ¹ The Court of Appeals further acknowledged what appeared to be a conflict between Revel and Howington, but concluded that Revel must control as it had not been overruled or reversed. Therefore, the Court of Appeals held the trial court had the right to, sua sponte, transfer a convicted prisoner to another jail if it found the local jail was not secure. The parties in Whiddon did not apply for certiorari to this court.

In finding it had the authority to order the transfer in the case before us, the trial court relied on the analysis of the Court of Appeals in Whiddon v. State, supra. As stated above, the Court of Appeals upheld the transfer order in this case based on the holdings of Revel and Whiddon.

It is clear that the legislature has vested broad authority in the office of sheriff to administer the jails. See generally OCGA Title 42, Chapter 4. It is "the duty of one sheriff ... to take from the outgoing sheriff custody of the jail and the bodies of such persons as are confined therein...." OCGA § 42-4-4(a)(1). A sheriff is authorized to determine if the jail of his county is "in an unsafe condition," and if he so determines, to transfer prisoners to the jail of another county. OCGA § 42-4-4(a)(3). It is beyond dispute that the sheriff, and not the superior court, is charged with administering the jail. But where an issue is properly raised before the trial court regarding jail security or other matters involving administration of the jail and evidence presented on the issue, the court is empowered to make a judicial determination. If that judicial determination is that the jail is not secure, the trial court is authorized to order the sheriff to transfer a prisoner to the nearest county having a secure jail.

Howington v. Wilson, supra, reached the correct result. A trial court may not, on its own motion, transfer a prisoner to another jail where the court, without the issue being raised, concludes the local jail is not secure. The legislature has vested the sheriff alone with the administrative authority to order such transfers. OCGA § 42-4-4(a)(3).

In this case, however, the District Attorney brought the issue of the security of the Baker County jail before the trial court. All interested parties were present and participated in the hearing. Petitioner in his capacity as Sheriff of Baker County testified he did not believe the jail to be secure because it was overcrowded. Under these circumstances, the trial court was authorized to order petitioner to transfer the prisoners, ² and it was the sheriff's duty to carry out that order. OCGA §§ 15-16-10. To the extent that Whiddon v. State, supra, holds that the trial court has the authority to order, sua sponte, the transfer of a prisoner where the court determines the local jail is not secure, it is overruled. Operation of the jail is not an administrative function of the trial judge except in very narrowly defined situations. See Endnote 1, supra.

2. We are now faced with the question of whether the Court of Appeals erred in affirming the petitioner's conviction of criminal contempt.

Following his apprehension by the GBI in July, 1983, Stephen Earl Brown was temporarily transferred from the Baker County jail to the Grady County jail "for security and investigative purposes." At that time he was hospitalized in Grady County due to a possible heart problem. The Sheriff of Grady County testified that Dr. Andrew Dekle, Brown's attending physician, informed him that Brown was "faking" and instructed him not to bring Brown back to the hospital. At the contempt proceeding Dr. Dekle denied saying he believed Brown was "faking," but admitted saying Brown's condition was not serious. There is no indication in the record that petitioner was aware of this conversation. Brown was thereafter transferred to Baker County and arraigned on August 5, 1983. As stated in Division One, the trial court orally ordered that Brown be transferred to the Decatur County jail. After the trial court ruled, Brown's attorney requested that Brown be permitted to remain in Baker County because of health problems. The trial court stated it had taken Brown's "medical problems into consideration ... [and] of the five counties in this circuit, [Decatur County] would have the better medical facilities available." Following arraignment, as Brown was being escorted to the jail by Deputy Sheriff Sheffield, he stumbled. Once inside his cell Brown stumbled again. Deputy...