McCrary v. Ricketts, 29226

• Citation: 209 S.E.2d 148,232 Ga. 890
• Decision Date: 01 October 1974
• Docket Number: No. 29226,29226
• Parties: James L. McCRARY v. James G. RICKETTS.
• Court: Georgia Supreme Court

Page 148

209 S.E.2d 148

232 Ga. 890

James L. McCRARY v. James G. RICKETTS.

No. 29226.

Supreme Court of Georgia.

Oct. 1, 1974.

James L. McCrary, pro se.

Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Larry H. Evans, Deputy Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

Appellant was denied habeas corpus relief in the Superior Court of Butts County and appeals that judgment for review by this court.

The trial court found that appellant was serving a two-year sentence for the offense of theft by taking imposed in the Superior Court of Faytte County after a plea of guilty thereto by appellant.

In this appeal, appellant contends he was not represented by counsel and that his plea of guilty was not freely and voluntarily entered. However, the transcript of the evidence discloses that the habeas corpus trial court was authorized to find, as it did, that appellant was represented by an expenrienced and competent attorney at the time he entered the plea of guilty and that the plea was freely, voluntarily and intelligently entered by appellant consistent with constitutional safeguards. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See, Wilkins v. Hopper, 232 Ga. 796, 209 S.E.2d 147.

Appellant also contends that he was led to believe he would receive misdemeanor punishment rather than felony punishment for the offense of theft by taking. This contention is grounded primarily upon the fact that the printed accusation form on which appellant entered his plea of guilty described the offense as a misdemeanor. However, the typed and filled in averments of the accusation clearly show that appellant was charged with a felony. The accusation charges that appellant (and two companions) did 'unlawfully take and carry away one tool chest, grey metal, marked 'A. L. Rhyne'; containing miscellaneous tools; one electric welder, Sears Best 'Craftsman,' one air tank sprayer, of the total value of $800 being the property of H. A. Rhyne, with the intention of depriving the said owner of said property . . .'

Code Ann. § 26-1802(a) provides that a person commits theft by taking when he unlawfully takes any property of another with the intention of depriving the owner of the property. Code Ann. § 26-1812 provides that if the property which was the subject of the theft exceeded $100 in value, the offense is punishable by imprisonment for not less than I and not more than 10 years, or, in the discretion of the trial judge, as for a misdemeanor.

The accusation to which appellant entered a plea of guilty charged him with...