Warbington v. State
Citation | 814 S.E.2d 351 |
Decision Date | 07 May 2018 |
Docket Number | S18A0347 |
Parties | WARBINGTON v. The STATE. |
Court | Supreme Court of Georgia |
Jordan L. Warbington, pro se.
Daniel J. Porter, District Attorney, Tracie H. Cason, Lee F. Tittsworth, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
In 2005, a jury found Jordan Lee Warbington guilty of murder, felony murder, and aggravated assault in the bludgeoning death of Kenneth "Tate" Cain in the break room of the Warbington family mortuary. The judgment of conviction was affirmed in Warbington v. State, 281 Ga. 464, 640 S.E.2d 11 (2007).
Warbington alleges that, after indictment and before his trial and conviction for murder, he was incarcerated in the state prison system for an unrelated offense after his parole was revoked. On August 14, 2017, Warbington filed a pro se "Motion for Jail–Credit Time" in his original criminal proceeding, seeking to have the time served on the unrelated offense after his parole was revoked credited against his subsequently imposed sentence for murder. The motion was denied by the trial court on August 31, 2017, and Warbington appeals to this Court. For the reasons stated below, we dismiss the appeal.
In Wilson v. State, 273 Ga. 97, 97, 538 S.E.2d 429 (2000), this Court considered a similar appeal. Wilson, a prisoner, filed a motion in the trial court seeking a credit against his sentence for time spent in confinement on an unrelated offense, which the trial court denied. Relying on this Court’s subject matter jurisdiction over a sentence in a murder conviction, Ga. Const. Art. VI, Sec. VI, Par. III (8), we ruled on the merits and affirmed, holding that the statutory provisions that allow crediting of sentences apply Wilson, supra, 273 Ga. 97, 538 S.E.2d 429. In so doing, we expressly pretermitted and did not decide "whether Wilson’s motion was properly filed in the court in which he was convicted." Id.
(Citations, punctuation, and footnotes omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2), 622 S.E.2d 96 (2005). And this holding has been followed many times. See, e.g., Adams v. State, 316 Ga. App. 161, 163–164 (2), 728 S.E.2d 711 (2012) ; Williams v. State, 300 Ga. App. 319, 320–321, 684 S.E.2d 432 (2009).1
Moreover, since Wilson, we have made clear that the proper procedure for seeking relief is not a point to be overlooked, even if the claim is clearly meritless. Henderson v. State, 303 Ga. 241, 811 S.E.2d 388 (2018). In Henderson, we overruled Coles v. State, 223 Ga. App. 491, 491 (1), 477 S.E.2d 897 (1996), which had deemed a post-trial motion filed in the petitioner’s original murder case as "a civil action in the nature of mandamus," and took subject matter jurisdiction of the appeal under Ga. Const. Art. VI, Sec. VI, Par. III (8). Id. at 244 (1), 811 S.E.2d 388. Having established jurisdiction, we dismissed Henderson’s appeal because his motion sought a remedy that the law does not recognize, it should have been dismissed as a nullity, and he therefore had
"nothing cognizable to appeal." Id. at 244 (2), 811 S.E.2d 388, citing Harper v. State, 286 Ga. 216, 218, 686 S.E.2d 786 (1) (2009).
Accordingly, even though Warbington’s motion was meritless for the same reason as Wilson’s, we will not overlook his failure to raise that claim through a petition for mandamus against the appropriate official in the Department of...
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