Pennewell v. State, 56853

Decision Date05 January 1979
Docket NumberNo. 56853,56853
Citation251 S.E.2d 832,148 Ga.App. 611
PartiesPENNEWELL v. The STATE.
CourtGeorgia Court of Appeals

Boling & Rice, Larry H. Boling, Cumming, for appellant.

Frank C. Mills, III, Dist. Atty., Rafe Banks, III, Asst. Dist. Atty., for appellee.

BANKE, Judge.

The defendant appeals the judgment of the superior court returning him to the custody of the Department of Human Resources.

The defendant was charged with arson and found not guilty by reason of insanity. In compliance with Code Ann. § 27-1503(a), the trial judge ordered him confined to a state mental hospital for a period of not less than 30 days. At the end of this 30-day period, the Department of Human Resources applied for the defendant's release on the ground that he did not meet the criteria for civil commitment as set forth in Code Ann. Ch. 88-5. After a hearing, the trial judge denied the application for release and ordered the defendant returned to the custody of the Department of Human Resources.

1. At the time of the hearing, the criteria for judicial hospitalization was that a person be "mentally ill and . . . (a) likely to injure himself or others if not hospitalized or (b) incapable of caring for his physical health and safety." See Ga.L.1969, pp. 505, 531 (former Code Ann. § 88-507.1, repealed by Ga.L.1978, pp. 1789, 1793). 1 The trial judge found that the defendant satisfied these criteria. The defendant in his first enumeration of error contends that the evidence did not support the judge's findings.

The only witness called to testify at the hearing was Dr. Timonthy Golumbeck, a psychiatrist at Georgia Mental Health Institute, the facility in which the defendant had been placed for the 30-day evaluation period. Dr. Golumbeck testified that the defendant suffered from a "mental condition" or an "abnormal variation of mental life" as opposed to a "mental illness" of organic origin. He testified that the defendant needed on-going psychiatric care in order to improve, but that he had refused to participate in such treatment. He also testified that the defendant was a danger to himself in that his frequent use of abusive language might provoke others to inflict physical injury on him. Nevertheless, Dr. Golumbeck recommended that the defendant be released from the custody of the Department of Human Resources, mainly because of the department's inability to provide the type of treatment he needed.

Because of the previous adjudication finding the defendant not guilty by reason of his insanity, a presumption of (the defendant's) insanity existed at the commencement of the hearing. See Code § 38-118; Boyd v. State, 207 Ga. 567(1), 63 S.E.2d 394 (1951); Gilbert v. State, 235 Ga. 501, 220 S.E.2d 262 (1975); Durham v. State, 239 Ga. 697(1), 238 S.E.2d 334 (1977). Dr. Golumbeck's testimony, while opposing categorization of the defendant's condition as "mental illness," failed to rebut this presumption of insanity. On the contrary, it established that at the time of the hearing the defendant continued to suffer from a serious psychiatric disorder. See generally Carter v. State, 225 Ga. 310, 168 S.E.2d 158 (1969); Johnson v. State, 235 Ga. 486(2), 220 S.E.2d 448 (1975); Durham v. State, supra; Potts v. State, 241 Ga. 67(13), 243 S.E.2d 510 (1978).

Code Ann. § 27-1503(a) provides that "A person committed to the Department of Human Resources pursuant to this section shall not be released from confinement unless and until the court which committed him, after notice and hearing, shall find and determine that such person does not meet the criteria for civil commitment under Chapter 88-5 or 88-25, as now or hereafter amended." Dr. Golumbeck's testimony that the defendant's condition created a risk of personal injury to himself was undisputed, and the evidence did not establish as a matter of law that the defendant was no longer mentally ill, i. e., that he no longer had "a psychiatric disorder which substantially impairs" his mental health (see Ga.L.1969, pp. 505, 506, repealed by Ga.L.1978, pp. 1789, 1790). 2 Accordingly, the trial judge did not err in remanding him to custody.

2. In his second enumeration of error, the defendant contends that the trial judge erred in not permitting him to make a statement on his own...

To continue reading

Request your trial
9 cases
  • Benham v. Edwards, Civ. A. No. C80-78R.
    • United States
    • U.S. District Court — Northern District of Georgia
    • November 14, 1980
    ...27-1503: Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979); Pennewell v. State, 148 Ga.App. 611, 251 S.E.2d 832 (1979); Pitts v. State, 151 Ga.App. 691, 261 S.E.2d 435 (1979); Dubose v. State, 148 Ga.App. 9, 251 S.E.2d 15 Following a f......
  • Benham v. Edwards
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 27, 1982
    ...Skelton v. Slaton, 243 Ga. 426, 254 S.E.2d 704 (1979); Pitts v. State, 151 Ga.App. 691, 261 S.E.2d 435 (1979); Pennewell v. State, 148 Ga.App. 611, 251 S.E.2d 832 (1979); Dubose v. State, 148 Ga.App. 9, 251 S.E.2d 15 (1978). The statutory scheme, as construed by the Georgia courts, can be s......
  • Clark v. State
    • United States
    • Georgia Supreme Court
    • April 9, 1980
    ...a presumption of the continued existence of a mental state once proved to exist. Accordingly, it has been held in Pennewell v. State, 148 Ga.App. 611(1), 251 S.E.2d 832 (1979); Pitts v. State, 151 Ga.App. 691, 261 S.E.2d 435 (1979) and in this case, that where a defendant who has been acqui......
  • Echols v. State
    • United States
    • Georgia Court of Appeals
    • April 13, 1979
    ...for a guardian, civil commitment to a hospital or denial of criminal responsibility for an illegal act. Id. 5. See Pennewell v. State, 148 Ga.App. 611, 251 S.E.2d 832. Lawyers, legislators, and jurists could avoid much of this confusion if we restricted the term "insanity" to the test of cr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT