Smith v. Nichols

• Decision Date: 22 February 1999
• Docket Number: No. S98A1979.,S98A1979.
• Citation: 270 Ga. 550,512 S.E.2d 279
• Parties: SMITH v. NICHOLS, et al.
• Court: Georgia Supreme Court

512 S.E.2d 279

270 Ga. 550

SMITH v. NICHOLS, et al.

No. S98A1979.

Supreme Court of Georgia.

February 22, 1999.

Dwight L. Thomas, Atlanta, for Willie A. Smith.

Thurbert E. Baker, Atty. Gen., Christopher S. Brasher, Asst. Atty. Gen., Department of Law, Atlanta, Alan A. Cook, Dist. Atty., W. Kendall Wynne, Jr., Asst. Dist. Atty., Covington, for Joe Nichols, Sheriff, et al.

BENHAM, Chief Justice.

Appellant Willie Arthur Smith is currently in the custody of the sheriff of Newton County, appellee Joe Nichols. Smith filed a petition for habeas corpus and mandamus in which he sought to have the habeas court set or re-instate a bond on a probation violation warrant, and to require Newton County to provide him both a preliminary hearing and a final hearing in his probation revocation proceedings. At the same time, appellant filed a motion to recuse the judges of the Alcovy Judicial Circuit from presiding over cases involving appellant, including the habeas/mandamus petition he had filed. The judges were recused from presiding over this matter, and a judge from the Augusta Judicial Circuit heard appellant's petition. Following the habeas court's dismissal of appellant's mandamus action and its denial of appellant's request for habeas corpus relief, appellant filed a direct appeal in this Court. Appellant was arrested on October 25, 1997, one day after the issuance of an arrest warrant for him on cocaine charges and two months after a probation violation arrest warrant had been issued for him. After appellant made a timely appearance before a magistrate on the drug charges, he was served with a petition for revocation of probation and notice of a hearing to commence within five days.¹ Smith was denied bond with regard to both warrants in December 1997. When more than 90 days had elapsed since his arrest, Smith filed a motion for bond pursuant to OCGA § 17-7-50 (failure to indict within 90 days), which caused a consent order of bond to issue on January 28, 1998. Appellant posted bond and was released on February 5; however, he was re-arrested on February 6 on a fresh arrest warrant that was issued on the ground that the January 28 bond order had authorized Smith's release on the drug warrant but not on the probation violation warrant. On February 9, appellant filed his petition for habeas corpus and mandamus relief. As stated earlier, the habeas court dismissed the mandamus action and denied habeas relief.

1. "[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. [Cits.]." Stephenson v. Futch, 213 Ga. 247(1), 98 S.E.2d 374 (1957). Appellant's status as a prisoner raises the possibility that OCGA § 42-12-8, the statute which sets forth appellate procedural requirements under the Prison Litigation Reform Act, OCGA § 42-12-1 et seq. (PLRA), mandates that appellant seek discretionary, rather than direct, review of the judgment rendered against him. In response to our request, the parties addressed the jurisdictional issue and the Attorney General filed a motion to dismiss the portion of the appeal from the denial of mandamus relief.²

One is subject to the PLRA if one is a "prisoner," statutorily defined as "a person 17 years of age or older who has been convicted of a crime and is presently incarcerated or is being held in custody awaiting trial or sentencing." OCGA § 42-12-3(4). On January 28, appellant was released on bond pending trial on the cocaine charges, so he is currently being held in custody in lieu of bond only on the probation violation warrant. Since one in custody awaiting a probation revocation hearing is one awaiting a determination of the means by which he is to serve a sentence, he is similarly situated to one in custody awaiting sentencing. Therefore, we conclude that one 17 years of age or older in custody awaiting a probation revocation hearing is a "prisoner" for purposes of the PLRA.

With some exceptions, the PLRA requires a prisoner to follow the discretionary application procedure in order to obtain appellate review of the trial court's action in any civil lawsuit, action, or proceeding filed by a prisoner, and failure to follow the appropriate procedure results in dismissal of the appeal. Jones v. Townsend, 267 Ga. 489, 480 S.E.2d 24 (1997). A petition for a writ of habeas corpus is expressly exempted from the PLRA. OCGA § 42-12-3(1)(A). That exemption, however, does not authorize a prisoner to appeal directly the denial of a petition for habeas corpus relief. OCGA § 9-14-52 requires this Court to engage in a discretionary review process concerning an appeal from the habeas court's denial of relief to a prisoner held under sentence of a state court of record, thereby making unauthorized a direct appeal from the denial of a post-trial habeas petition. Where, however, a prisoner files a pre-trial habeas corpus petition while in custody in lieu of bond, the discretionary procedures of § 9-14-52 are replaced by the direct appeal route offered by OCGA § 9-14-22. Reed v. Stynchcombe, 249 Ga. 344(1), 290 S.E.2d 469 (1982). Cf. Hood v. Carsten, 267 Ga. 579, 481 S.E.2d 525 (1997); Baez v. Lemacks, 264 Ga. 808, 452 S.E.2d 491 (1994). In the case at bar, since appellant filed his habeas petition while in custody in lieu of bond awaiting a probation revocation hearing, he was authorized under § 9-14-22 to appeal directly the denial of habeas relief.³

2. Appellant contends the habeas court committed several errors, each of which resulted in the erroneous denial of the habeas relief he sought.

(a) Citing OCGA § 9-14-7, appellant asserts that the sheriff failed to timely produce appellant for inquiry into the February 9 petition for a writ of habeas corpus. The statute requires that the "return day" for the writ of habeas corpus, i.e., the day on which the custodian of the petitioner is required to produce the petitioner "together with the cause of the detention" (OCGA § 9-14-5), must be within eight days of the presentation of the petition. See Tyree v. Jackson, 226 Ga. 690, 177 S.E.2d 160 (1970); Harper v. Ballensinger, 225 Ga. 863, 171 S.E.2d 609 (1969). The habeas court found that the statute had been complied with because appellant had made a court appearance on the eighth day following the filing of the habeas petition. From what we can glean from appellate records filed in this Court, while appellant was brought to a courtroom on the eighth day, there was no inquiry into the cause of his detention due to appellant's pending motion to recuse the judges of the Alcovy Judicial Circuit.⁴ Appellant's habeas hearing took place in June 1998, four months after the petition was filed.

We need not decide today whether an incarcerated defendant's appearance in a courtroom satisfies the statutory mandate that the defendant be produced "for the purpose of an examination into the cause of the [habeas petitioner's] detention" (OCGA § 9-14-5). Resolution of that troubling aspect of this case is left for another day because, in this case, the inability of the court below to conduct a hearing into the cause of appellant's detention was the direct result of appellant's action. The lapse of time between appellant's filing of his petition for the writ and the holding of a habeas hearing was due to appellant's inclusion in his petition of a motion to recuse all the Alcovy Judicial Circuit judges, appellant's filing of a habeas corpus petition in this Court while his motion to recuse and his petition for habeas/mandamus relief remained pending below, and a month-long continuation of the habeas hearing consented to by the parties. The Alcovy judges did not act on the habeas petition in light of the recusal motion; the judge from the Toombs Judicial Circuit designated to hear the recusal motion did not hold a recusal hearing for six weeks because he believed his court to be without jurisdiction of the matter while the habeas petition was pending in this Court; the Toombs judge's subsequent recusal of the Alcovy judges⁵ led to the assignment of a judge from the Augusta Judicial Circuit to preside over appellant's habeas/mandamus action; the Augusta judge issued the writ commanding the sheriff to produce appellant for a hearing on the habeas petition, but the hearing was continued for a month, with the consent of all parties.

The delay in having a hearing on appellant's habeas petition was brought about by appellant's disqualification of the only judges who could preside over his habeas/mandamus action—the superior court judges of the Alcovy circuit.⁶ Since it was appellant's actions which frustrated the ability of the Alcovy judges to consider the merits of appellant's petition and delayed the holding of the required hearing for months, we decline the opportunity to order appellant released because the temporal requirements of OCGA § 9-14-7 were not met.⁷

(b) Appellant complains that, contrary to the provisions of OCGA §§ 17-4-26⁸ and 42-8-38 (arrest of probationer for violation of probationary terms), he never received a preliminary hearing on the probation revocation warrant within 72 hours of his arrest. OCGA § 17-4-26 is a directive to an arresting officer to present the arrestee before a committing judicial officer within 72 hours after arrest. Watts v. Pitts, 253 Ga. 501, 504, 322 S.E.2d 252 (1984). At the time of appellant's arrest, there were two outstanding warrants against him, and it is undisputed that he was presented timely to a committing judicial officer on the cocaine warrant. Five days after his arrest, while he was in custody on the cocaine warrant, appellant was served with notice of the probation revocation and of a hearing to be held thereon five days hence. At appellant's request, the probation revocation hearing has not yet been held. This Court has held that due process in probation revocation proceedings does not require both a preliminary and a final hearing...