Riggins v. State

Decision Date04 June 1975
Docket NumberNo. 1,No. 50306,50306,1
Citation216 S.E.2d 723,134 Ga.App. 941
PartiesA. G. RIGGINS v. The STATE
CourtGeorgia Court of Appeals

John C. Swearingen, Jr., Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., Columbus, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Appellant appeals from his conviction of robbery by intimidation for which he received a ten-year sentence in the penitentiary. After notice of appeal was filed, the trial court ordered Riggins released on bail pending appeal. While free under bail bond appellant was convicted in the Recordier's Court of the City of Columbus of the offense of discharging a firearm in the City of Columbus and was bound over to the State Court of Muscogee County for the offense of pointing a weapon at another. The trial judge ordered that the bail bond pending appeal be revoked. However, neither the Sheriff of Muscogee County nor the surety on the bail bond pending appeal have been able to locate Riggins after a diligent search. The state has filed a motion to dismiss the appeal on the grounds that Riggins has become a fugitive from justice, and has forfeited all rights to invoke the aid of the appellate court. Held:

Our initial reaction is to dismiss the appeal under the rule that appellant is a fugitive from justice. See e.g. Gravitt v. State, 221 Ga. 812, 147 S.E.2d 447; Blaylock v. State, 129 Ga.App. 230, 199 S.E.2d 369; Shelton v. State, 131 Ga.App. 786, 206 S.E.2d 654; Salisbury v. State, 133 Ga.App. 964, 213 S.E.2d 90. But by way of motion for rehearing, counsel for appellant has made a commendable effort on behalf of his absent client to have this court rule on the merits of the appeal. His argument is that appellant is not a fugitive from justice because his bail bond has not been legally revoked for the reasons: (1) that the ex parte order of the trial judge revoking the defendant's bail bond was without notice and without a hearing and therefore was in violation of his due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, (2) that his Notice of Appeal served as a supersedeas 'where the defendant is admitted to bail . . .' under Ga.L.1965, pp. 18, 22 (Code Ann. § 6-1001), and that the trial judge therefore had no further discretion in the matter and could not revoke bail bond, and (3) that there was no evidence of a Bench Warrant, and, if there was, it was improperly issued.

This last contention is not relevant since it would not be considered in this case as a basis for dismissal of the appeal. The first two arguments are relevant because if the trial judge's revocation of appellant's bail bond was nugatory then the appellant is still free under the bail bond and is not a fugitive from justice.

In the first place, we point out that the rationale behind the 'fugitive from justice' dismissal rule applies with equal force where the appellant has escaped from confinement and where he has 'jumped bail' pending appeal. In Gentry v. State, 91 Ga. 669, 674, 17 S.E. 956, 958, the Supreme Court adopted language from Com. v. Andrews, 97 Mass. 543, Bigelow, C.J., stating: "The defendant, by escaping from jail where he was held for the purpose of prosecuting these exceptions and abiding the judgment of the court thereon, has voluntarily withdrawn himself from the jurisdiction of the court. He is not present in person, nor can he be heard by attorney. A hearing would avail nothing. If a new trial should be ordered, he is not here to answer further; if the exceptions are overruled, a sentence cannot be pronounced and executed upon him . . . So far as the defendant had any right to be heard under the constitution, he must be deemed to have waived it by escaping from custody, and failing to appear and prosecute his exceptions in person, according to the order of court under which he was committed.'

'In Smith v. United States, 94 U.S. 97 (24 L.Ed. 32), Mr. Chief Justice Waite said: 'It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it, and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case. " (Emphasis supplied.) See also Madden v. State, 70 Ga. 383; Munday v. State, 24 Ga.App. 111, 100 S.E. 19.

We are not aware, nor are we apprised by counsel, of any statute or case which requires the basic due process protections of notice and hearing in revocations of an appeal bail bond. The refusal or granting of a bail bond pending appeal, both under the old law, C...

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6 cases
  • Marshall v. Casey
    • United States
    • West Virginia Supreme Court
    • December 12, 1984
    ...counsel no hearing concerning the revocation was held. A defendant convicted of robbery by intimidation was, in Riggins v. State, 134 Ga.App. 941, 216 S.E.2d 723 (1975), released on bail pending appeal. During that release, the defendant allegedly violated certain firearms laws, and his bai......
  • Hood v. Carsten, S96A1761
    • United States
    • Georgia Supreme Court
    • March 7, 1997
    ...by the State of a motion to revoke bond while information is fresh and witnesses and evidence are available. Riggins v. State, 134 Ga.App. 941, 944, 216 S.E.2d 723 (1975) (decision to revoke appeal bond should be accompanied by at least minimal due process protections); see King v. Zimmerma......
  • Harper v. State, A09A1977.
    • United States
    • Georgia Court of Appeals
    • September 2, 2009
    ...invest him with authority no longer exists while his absence from custody continues." (Punctuation omitted.) Gentry v. State.16 See also Riggins v. State17 ("[t]he defendant, by escaping from [custody] for the purpose of [avoiding prosecution or] the judgment of the court ..., has voluntari......
  • Fong v. State, 57460
    • United States
    • Georgia Court of Appeals
    • January 16, 1979
    ...incarceration) of insuring the defendant's presence when and if the time comes for execution of the sentence." Riggins v. State, 134 Ga.App. 941, 944, 216 S.E.2d 723, 725 (1975). " The mandate of Birge v. State, supra, requires the trial court to address four questions when determining whet......
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