Smith v. Garner, 30492
| Decision Date | 07 January 1976 |
| Docket Number | No. 30492,30492 |
| Citation | 236 Ga. 81,222 S.E.2d 351 |
| Parties | Hugh Don SMITH v. Lynn GARNER, Sheriff, et al. |
| Court | Georgia Supreme Court |
Garland, Nuckolls & Kadish, Edward T. M. Garland, Cliffe Lane Gort, Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellees.
The Superior Court of Floyd County granted a summary judgment, on motion of the State Board of Corrections, denying habeas corpus relief to appellant and this court granted and application to review that decision. The summary judgment against appellant was based on two grounds: (1) the Superior Court in Floyd County lacked jurisdiction and venue in the case; and (2) the grounds of the present habeas corpus action, attacking sentences imposed in Floyd County, could have been raised in an earlier habeas corpus proceeding brought by appellant in another county where he was then detained.
Appellant was in the temporary physical custody of the Sheriff of Floyd County at the time he filed the present petition for habeas corpus on January 13, 1975. He was granted an order by the State Board of Corrections to be transferred temporarily to Floyd County from the State Correctional Institute in Ware County to attend the funeral of his father on January 11, 1975. Rule 125-2-2.09 of the State Board of Corrections provided for such discretionary compassionate visits by releasing an inmate to the temporary custody of the local sheriff upon condition the sheriff assume responsibility for him, maintain the inmate in safe custody and return him after the funeral to the State Institution at no expense to the Board of Corrections. Appellant was later returned to the Ware County Correctional Institution pursuant to an order of the Superior Court of Floyd County dated January 21, 1975.
The petition for habeas corpus, filed January 13, 1975, in Floyd Superior Court, originally was brought against the Sheriff of Floyd County, but the State Board of Corrections sought and was granted leave to intervene as a party respondent in the case. The State successfully urged the trial court to grant a summary judgment denying habeas corpus relief on several grounds, but primarily for lack of jurisdiction and venue and this appeal followed in due course.
Appellant argues that the Superior Court of Floyd County had jurisdiction in the case and that venue is proper because the action lies in the county where the petitioner for habeas corpus is being detained. See Code Ann. § 50-127(3). Appellant also argues that he is entitled to a hearing in the trial court on the grounds of his habeas corpus petition because these grounds were not raised in his first habeas corpus case and have not been waived by him. Smith v. Ricketts, 234 Ga. 797, 218 S.E.2d 74 (1975).
The State does not contest the jurisdiction of the trial court to hear this case, nor does it argue on appeal that appellant has waived his right to be heard on these issues. Instead, the State has narrowed the question addressed in its original brief and supplemental brief to the threshold venue issue, and it argues that since this issue was correctly decided in the trial court, we must affirm the summary judgment under the principle that a judgment, if right for any reason, must be affirmed. See Gilstrap v. Wilder, 233 Ga. 968, 969, 213 S.E.2d 895 (1975).
Essentially, the State's position on the venue issue is that a habeas corpus action 'must be brought in the county where (the petitioner) is 'restrained,' 'detained,' and 'in custody' by virtue of the sentences in question' and under attack in the habeas proceeding. The State argues that appellant remained, during this compassionate visit to Floyd County granted by the Board of Corrections, in the legal custody of the Superintendent of the Ware County Correctional Institution where appellant was 'detained' by virtue of the sentences he attacked in the case. The State relies on Code Ann. § 77-309(b) which provides that a State prisoner 'shall be committed to the custody of the Director of Corrections, who, with the approval of the State Board of Corrections, shall designate the place of confinement where the sentence shall be served.' Thus the State argues that a State prisoner lawfully can file a petition for habeas corpus only in the county where he has been assigned pursuant to the Corrections Director's designation under Code Ann. § 77-309(b).
Under the State's argument, a prisoner in a State institution whose actual custody is transferred temporarily by the Board of Corrections to another county and placed in the responsibility of an official in that county, for any reason deemed necessary and appropriate by the Board, cannot initiate habeas corpus proceedings while he is there, even though the temporary transfer may last several months or several years.
Appellant urges that the venue requirements of the Habeas Corpus Act of 1967 are satisfied in this case because appellant was in Floyd County under the detention, control and custody of the sheriff by virtue of the transfer order of the Board of Corrections. Appellant argues that when a person detained is before the court, it is the policy of the law for that court to inquire into the cause of restraint and pass such an order as the case requires. See Johnson v. Caldwell, 229 Ga. 548, 549, 192 S.E.2d 900 (1972).
In Colton v. Martins, 230 Ga. 482, 197 S.E.2d 729 (1973), the Superior Court of Cobb County had before it a habeas action in which it was alleged that the acting Superintendent of the Cobb County Juvenile Detention Home was illegally detaining a juvenile there by virtue of an order of the Juvenile Court of Meriwether County. The superior court ruled it had no jurisdiction to hear the case because jurisdiction was in the Superior Court of Meriwether County and therefore ordered the case transferred to that court for a hearing.
On appeal, this court reversed by holding that § 50-127(3) of the Code was controlling as to jurisdiction and venue in habeas corpus proceedings and that, since the person detained was before the court, it...
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