McAuliffe v. Rutledge, 27990
| Decision Date | 06 September 1973 |
| Docket Number | No. 27990,27990 |
| Citation | 200 S.E.2d 100,231 Ga. 1 |
| Parties | Andrew McAULIFFE v. Jack T. RUTLEDGE. |
| Court | Georgia Supreme Court |
Grogan, Jones & Layfield, John C. Swearingen, Jr., Columbus, for appellant.
E. Mullins Whisnant, Dist. Atty., Columbus, for appellee.
Syllabus Opinion by the Court
This is a habeas corpus case from the Superior Court of Muscogee County. It grows out of a prior conviction of the appellant in that court on drug violations. The conviction and resulting sentence of two years were followed by an appeal in forma pauperis to the Court of Appeals of Georgia and the history of the case can be found in the opinion of that court as reported in Gilmore v. The State, 127 Ga.App. 249, 193 S.E.2d 219 (1972).
The appellant did not have his criminal case reviewed on the merits in that appeal. Preparation of the trial transcript was delayed and his counsel obtained four extensions of time for filing it. However, the fifth application was filed out of time, and upon motion by the state, the trial court dismissed the appeal. This dismissal was the issue on appeal and it was affirmed by the Court of Appeals. Certiorari was denied by this court on December 4, 1972.
This is the background of the case that prompted the filing of the present habeas corpus action which is now here for review. The appeal presents several questions growing out of the original trial and dismissal of the criminal appeal. The appellant argues that he was denied due process of law by the dismissal of his appeal and that the trial court failed to make proper findings of fact and conclusions of law in the habeas corpus order as required by the provisions of Ga.L.1967, pp. 835, 836 (Code Ann. § 50-127(9)). On the other hand, the appellee insists that appellant's due process argument was laid to rest in the previous appeal and that the trial judge complied with the Habeas Corpus Act because he not only heard the original appeal but also heard this habeas corpus proceeding in which he referred to and adopted the prior record and rulings. Both parties cite the same case, Day v. Mills, 224 Ga. 741, 744, 164 S.E.2d 828, 380 (1968) in support of their respective positions on whether there was a compliance with the Habeas Corpus Act. As the appellee points out, the Day case holds in Division 3 of the opinion of this court, written by then Presiding Justice Almand, that the law 'simply requires the trial judge to set out his findings of fact showing a consideration of the facts of the case and a determination in relation to these facts.' In that case, the determination showed 'the incorporation of and consideration of the facts before the court.' In the present case, the trial court referred in the habeas corpus proceeding to the records admitted in the prior proceeding and, at least by implication, adopted his prior ruling on the dismissal of the criminal appeal. Consequently, we hold that the trial court complied with the Habeas Corpus Act (Code Ann. § 50-127(9)) in its habeas corpus ruling.
The appellant's argument that the trial court erred in dismissing the criminal appeal has been adjudicated in the previous appeal where this issue was raised and ruled on by the Court of Appeals and the denial of certiorari by this court. Hence, we find no error in either of these two enumerations of error by the appellant.
It is unnecessary to reach the third enumeration of error dealing with the search and seizure question argued by appellant because there is an important due process question in this case that has not been determined and should be first decided.
The record before this court, which includes the record of the earlier appeal, reveals that neither the trial court nor the Court of Appeals ruled on a vital due process question shown by the present record. This question is whether the appellant has been denied effective assistance of counsel on appeal resulting in a denial of his right of appeal on the merits of the criminal...
To continue reading
Request your trial
-
Schoicket v. State
..., 307 Ga. at 157-159 (5), 834 S.E.2d 733.31 See McAuliffe v. Rutledge , 231 Ga. 745, 746, 204 S.E.2d 141 (1974) ; McAuliffe v. Rutledge , 231 Ga. 1, 2-3, 200 S.E.2d 100 (1973).32 See Dos Santos , 307 Ga. at 154-155 (3), 834 S.E.2d 733.33 See OCGA § 17-9-60 et seq. (A party may move in arres......
-
Mims v. State, S16A0542
...however, is entitled to the effective assistance of counsel in connection with his appeal of right, see McAuliffe v. Rutledge , 231 Ga. 1, 2–3, 200 S.E.2d 100 (1973), and if his exercise of the right of appeal is frustrated by a denial of the guarantee of effective assistance, the Constitut......
-
McCorquodale v. Stynchcombe
... ... See McAuliffe ... v. Rutledge, 231 Ga. 1, 3, 200 S.E.2d 100 (1973) ... 2. Appellant's second ... ...
-
Fox v. Kelso
...applicable to pro se state habeas petitions in Georgia, the issue was presented and therefore was exhausted. See McAuliffe v. Rutledge, 231 Ga. 1, 200 S.E.2d 100, 102 (1973) ("Habeas corpus proceedings are not bound by ties of technical pleading, but embrace every legitimate issue involved ......