State Bd. of Corrections v. Smith

• Decision Date: 17 March 1977
• Docket Number: 31622,Nos. 31621,s. 31621
• Citation: 238 Ga. 565,233 S.E.2d 797
• Parties: STATE BOARD OF CORRECTIONS v. Hugh Don SMITH. Lynn GARNER v. Hugh Don SMITH.
• Court: Georgia Supreme Court

Page 797

233 S.E.2d 797

238 Ga. 565

STATE BOARD OF CORRECTIONS v. Hugh Don SMITH.

Lynn GARNER v. Hugh Don SMITH.

Nos. 31621, 31622.

Supreme Court of Georgia.

March 17, 1977.

Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellant State Bd. of Corrections.

Garland, Nuckolls, Kadish, Cook & Weisensee, Cliffe Lane Gort, Atlanta, George R. Anderson, Rome, for appellees in No. 31621.

Hamilton, Anderson & Minge, George R. Anderson, Rome, for appellant Lynn Garner.

Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Garland, Nuckolls, Kadish, Cook & Weisensee, Cliffe Lane Gort, Atlanta, for appellees in No. 31622.

GUNTER, Justice.

These two cases are continuing links in the legal-chain saga of Hugh Don Smith. In February of 1972 he was indicted for having committed six crimes: burglary, theft by taking, criminal damage to property in the first degree, criminal trespass, conspiracy, and conspiracy to commit criminal trespass. A jury trial was held, and appellee was found guilty on each charge. The jury imposed separate sentences for each crime, and the trial judge sentenced appellee to serve these sentences consecutively, though the jury did not specify consecutive sentences. Appellee was incarcerated pursuant to these sentences, and he filed a petition for habeas corpus in the Superior Court of Butts County. The result of this habeas petition was resentencing of the appellee, the sentences to be served concurrently. Wade v. State, 231 Ga. 131, 200 [238 Ga. 566] S.E.2d 271 (1973), and Gandy v. State, 232 Ga. 105, 205 S.E.2d 243 (1974). Smith appealed the resentencing judgment, and this court affirmed. Smith v. Ricketts, 234 Ga. 245, 215 S.E.2d 249 (1975).

Smith then brought a second application for habeas corpus in Floyd Superior Court which was dismissed by the habeas judge on the ground of improper venue and the further ground of successiveness, that is, the second application raised issues that could and should have been raised in the first application. This court reversed on appeal and said: "Therefore, we hold that appellant is entitled to an evidentiary hearing on the merits of the constitutional grounds he asserts in this case." Smith v. Garner, 236 Ga. 81, 86, 222 S.E.2d 351, 354 (1976).

Upon remand, the habeas court held a hearing to determine the merits of Smith's contentions. The hearing lasted for five days, and the record and transcript are therefore rather voluminous. The result was a habeas judgment that awarded Smith a new trial. The sheriff and the State Board of Corrections have appealed.

The habeas court's judgment consists of seven pages, but the crux of the habeas judge's ruling is contained in this sentence: "The court finds (from) the transcript of the trial conducted on March 23 and 24, 1972 (T.T.) and the transcript of the habeas corpus (H.C.T.) hearing on the aforesaid dates replete with instances of the abridgement of the rights of defendant Hugh Don Smith to due process as guaranteed by both the Constitution of the United States (Fifth, Sixth, and Fourteenth Amendments) and the Constitution of the State of Georgia (see Code Ann. Sec. 2-102)."

1. There was no direct appeal from Smith's original convictions; an attempted appeal was dismissed because of Smith's escape from custody; issues he is now raising by habeas application could and should have been raised on a direct appeal; therefore, the appellants urge here that Smith, because of his escape, forfeited his direct appeal and thereby waived any right that he may have to have the issues he now raises decided on an application for a writ of habeas corpus. In Brown v. Ricketts, 235 Ga. 29, 218 S.E.2d 785 (1975), we held that a person who had escaped after conviction would not be heard to complain that he was denied effective assistance of counsel on appeal. The issue here is whether ineffective assistance of counsel during the trial that resulted in conviction can be asserted in an application for habeas corpus even though a direct appeal from the conviction had been forfeited or abandoned.

We merely hold here that the issue of ineffective assistance of counsel during the trial in the convicting court can be raised by an applicant in the habeas court irrespective of the forfeiture or abandonment of a direct appeal. We think a convicted party has a right to raise this issue once and have the issue determined on the merits only once, either by direct appeal or in a habeas proceeding.

2. The habeas judge held that Smith's representation during the convicting trial was ineffective; and he granted the writ and ordered a new trial for Smith within a reasonable time. After a review of the record and transcript, we cannot say that the habeas judge's conclusion is without evidence to support it. The judgment must therefore be affirmed.

3. Having reached this conclusion on the ineffective assistance of counsel...