Purvis v. Connell, 26515
| Decision Date | 09 July 1971 |
| Docket Number | No. 26515,26515 |
| Citation | 227 Ga. 764,182 S.E.2d 892 |
| Parties | Duane PURVIS v. D. J. CONNELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Remand of the petitioner to his custodian was error since the record does not show that his pleas of guilty, upon which the sentences were based, were intelligently and voluntarily entered.
Jack W. Carter, Adel, for appellant.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.
This appeal is from the denial of a petition for the writ of habeas corpus in which the petitioner Duane Purvis alleged that his detention by the respondent D. J. Connell, as sheriff of Cook County, was illegal. Petitioner averred that the sentences under which he was being held were illegal in that he entered pleas of guilty to two indictments for passing fraudulent checks without being properly advised of his constitutional rights; without the advice or offer of legal counsel; that the pleas were signed outside the courtroom and not in open court; and that he has not waived any of his constitutional rights and insists thereon.
No answer was filed by the respondent.
The testimony of the petitioner, insofar as material here, was substantially the following: that he signed the indictments and guilty pleas in the court library; that the trial judge was not present when he signed them; that no transcript of the record was prepared to show what had transpired; that he was not at that time represented by an attorney, but wanted one; that he was not advised of his constitutional rights by the presiding judge or the district attorney; that he had been in jail for seven days on a peace warrant obtained by his former wife before pleading guilty to giving the checks, and was out on bail as to them; and that when he was taken to the library he thought it was to be for a hearing on the peace warrant and that he was going to get out of jail if he would plead guilty on these two indictments; that after he was sentenced to two 12 months consecutive periods of confinement on the guilty pleas and returned to jail he retained an attorney and filed this petition for habeas corpus.
The respondent offered no testimony to refute the petitioner's testimony.
However, the judge in the habeas corpus proceeding entered an order which, after recounting the events leading up to the hearing, in essence made the following findings: that the petitioner earlier during the November term of court appeared before him; that the judge then 'explained his rights' to him; that the judge then let him out on his own recognizance; that he appeared later before the judge with these pleas of guilty and was sentenced during the November term; that at the time of sentence he did not ask the judge or state that he desired to change his pleas to not guilty; and that had he done so the judge would have vacated the judgment and entered pleas of not guilty; that it is now the February term of court and that under the law the judge cannot then change the sentence. The order stated that the court concluded that petitioner's detention was legal and remanded him to his custodian.
The petitioner appeals from this judgment.
In the view that we take it is not necessary to consider petitioner's contentions as to not having legal counsel when the guilty pleas were entered and as to such pleas not being entered in open court.
Instead, we deal with the underlying issues as to whether the pleas were entered intelligently and voluntarily in accordance with the rule set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 270.
There the Supreme Court of the United States, in dealing with a conviction for armed robberies, held that 'it was error, plain on the face of the record, for the trial judge to accept the petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary.'
It declared that (Emphasis supplied.)
It also said that * * *' (Emphasis supplied.)
It is clear from the majority Boykin opinion and also from its dissenting opinion that a state trial judge, in accepting a plea of guilty, now has the same duty in this respect that a federal trial judge has under Rule 11 of the Federal Rules of Criminal Procedure. That rule, in essential part, is as follows: ...
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Davis v. State
...584, 460 P.2d at 456 (footnote omitted). A number of other courts quickly followed California's lead. See, e. g., Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892, 894 (1971); State v. Abodeely, 179 N.W.2d 347, 351-52 (Iowa 1970), appeal dismissed, 402 U.S. 936, 91 S.Ct. 1617, 29 L.Ed.2d 104 ......
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...473, 211 S.E.2d 764 (1975). Since Boykin, a Georgia trial judge has the same duty as a federal judge under rule 11. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892 (1971). 12. Hawaii. When a guilty plea conviction is challenged, the State must prove the accused voluntarily and with full unde......
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...122, 132, 81 Cal.Rptr. 577, 460 P.2d 449 (1969), cert. denied, 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72 (1970); Purvis v. Connell, 227 Ga. 764, 766-68, 182 S.E.2d 892 (1971); State v. Abodeely, 179 N.W.2d 347, 352 (Iowa 1970), cert. denied and appeal dismissed, 402 U.S. 936, 91 S.Ct. 1617......
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