Parris v. State, 29016
| Decision Date | 04 September 1974 |
| Docket Number | No. 29016,29016 |
| Citation | 208 S.E.2d 493,232 Ga. 687 |
| Parties | Charles William PARRIS v. The STATE. |
| Court | Georgia Supreme Court |
Charles William Parris, pro se.
Lewis R. Slaton, Dist. Atty., Atlanta, for appellee.
Syllabus Opinion by the Court
Charles William Parris appeals from the denial by the Fulton County Superior Court of the relief requested in his pleading filed therein entitled 'Writ of Error Coram Nobis is Forma Pauperis.' Alleging in that pleading that he was in custody of federal authorities of the United States Penitentiary in Atlanta, Parris asked that his 1948 Fulton Superior Court conviction for burglary, the sentence for which had been fully served or otherwise terminated, be declared null and void under the authority of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 () because at the time of entering his guilty plea Parris was denied his right to counsel. The pleading further indicated that the burglary conviction was considered by the federal district court in enhancement of Parris' present sentence and that he wished to pursue a remedy in federal court under the authority of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, wherein petitioner was granted a federal court resentencing where it appeared that the sentencing court considered three previous felony convictions two of which were constitutionally invalid having been obtained in violation of the right to counsel. Parris alleged that he desired to present to federal authorities in support of his claim an adjudication that the state burglary conviction was void. The superior court, concluding that there was no justiciable controversy pending between Parris and the state, denied the relief sought, and Parris appeals.
Because the nature of Parris' claim is clear and apparent from the face of his pro se pleading and his notice of appeal, the motion of the state to dismiss the appeal for failure to file a formal enumeration of errors and brief is denied. Code Ann. § 6-809(d). 809(d). Though this is an unusual case, we conclude that Parris' claim of restraint of his liberty is reachable by the Great Writ, and accordingly we reverse and remand to the superior court with direction to treat the claim as a petition for habeas corpus.
Initially, we note the inappropriateness of the writ of error coram nobis. Such a writ lies for an error of fact not apparent on the face of the record, not attributable to the negligence of the accused and which, if before the court, would have prevented rendition of the judgment. Petree v. State, 127 Ga.App. 493, 194 S.E.2d 267; South v. State, 72 Ga.App. 79, 33 S.E.2d 23. We have here not an asserted error of fact but a subsequent retroactive change in the law concerning right to counsel. In any event, a writ of error coram nobis is not available where the party seeking it has an adequate statutory remedy such as habeas corpus. Riley v. State, 107 Ga.App. 639, 131 S.E.2d 124; Code Ann. § 50-101(c). Habeas corpus is an available remedy to attack a void judgment, Jackson v. Dutton, 223 Ga. 642, 643, 157 S.E.2d 286, and because Parris' pleading was filed in the county of his detention, it may be considered a petition for habeas corpus, see Lee v. State, 124 Ga.App. 492, 184 S.E.2d 229, if other prerequisites have been met. We conclude that they have been.
The two interrelated problems here are whether Parris is 'restrained of his liberty' within the meaning of Code Ann. § 50-101(c), and whether the completion of the sentence imposed on the Fulton County conviction renders the claim for relief moot.
The boundaries of cognizable restraints on liberty have been often considered by federal courts in application of the federal habeas corpus statute, 28 U.S.C. § 2241 et seq., which requires that the applicant be 'in custody' when the application is filed. 'The statute 'does not attempt to mark the boundaries of 'custody," and courts have long recognized that 'besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient . . . to support the issuance of habeas corpus.' Jones v. Cunningham, 371 U.S. 236, 238-240, 83 S.Ct. 373, 375-376, 9 L.Ed.2d 285 (1963).' Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 373 (2d Cir. 1968). For example, a federal prisoner on whom state authorities have put a 'hold' pursuant to a state conviction, is 'restrained of his liberty' by reason of the state court conviction. Orito v. Powers, 479 F.2d 435 (7th Cir. 1973). A prisoner serving consecutive sentences is 'in custody' under any one of them for purposes of § 2241(c)(3). Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426. A person released on his own recognizance is 'in custody.' Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294. In short, the old idea that immediate release from physical custody is the only remedy available under habeas corpus is dead. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554; Peyton v. Rowe, supra.
Turning to the issue of mootness, the Supreme Court has held in Carafas v. LaVallee, supra, that a habeas corpus petitioner's cause did not become moot simply because prior to final adjudication he was unconditionally released from custody, if adverse collateral consequences of the conviction continued to plague him. Considering mootness in the constitutional sense, the court wrote that, Carafas v. LaVallee, supra, p. 237, 88 S.Ct. p. 1559. (Footnotes omitted.) Similar results on analogous facts were reached in Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970), and Brown v. Resor, 407 F.2d 281 (5th...
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