Zant v. Dick

Decision Date09 September 1982
Docket NumberNo. 38783,38783
Citation294 S.E.2d 508,249 Ga. 799
PartiesZANT v. DICK.
CourtGeorgia Supreme Court

Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., for Walter D. Zant, Supt.

Thomas J. McHugh, Jr., Jones & McHugh, Fayetteville, for Dennis Dick. MARSHALL, Justice.

The appellee was convicted in 1979 in the Dawson Superior Court of the armed robbery and murder of O. C. (Red) Rider. He was sentenced to death for murder and to life in prison for armed robbery. His convictions and sentences were affirmed on direct appeal in Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980), cert. den. 451 U.S. 976, 101 S.Ct. 2059, 68 L.Ed.2d 357 (1981). He subsequently filed an extraordinary motion for new trial, the denial of which was affirmed in Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982). The present appeal is from the Butts Superior Court's grant of the appellee's application for a stay of execution, the application for stay of execution having been filed contemporaneously with the filing of a petition for writ of habeas corpus in the Butts Superior Court.

In this appeal, the appellant argues that the grant of a stay of execution pending consideration of a habeas corpus petition in a death penalty case is equivalent to issuance of a preliminary injunction. Based on this premise, the appellant argues that before a stay of execution is granted the applicant for the stay must show, among other things, a substantial likelihood that he will prevail on the merits. As authority, the appellant cites Foley v. Alabama State Bar, 648 F.2d 355 (5th Cir. 1981) and Mulligan v. Zant, 531 F.Supp. 458 (M.D.Ga.1982). Held:

In Georgia, there are three forms of injunctive relief: a temporary restraining order, an interlocutory injunction, and a permanent injunction. See 15 E.G.L. Injunctions 213, § 16 et seq. (1980 rev.).

We would agree that the issuance of a stay of execution is the equivalent of the grant of an interlocutory injunction, at least where, as here, a hearing with notice to the parties is conducted on the application for the stay.

In Georgia, it has long been the rule that the grant or denial of an interlocutory injunction rests in the sound discretion of the trial judge according to the circumstances of each case. Code Ann. § 55-108; e.g., Kirkland v. Ferris, 145 Ga. 93(1), 88 S.E. 680 (1916). "In an application for an interlocutory injunction there should be a balancing of conveniences and a consideration of whether greater harm might be done by refusing than by granting the injunction. Everett v. Tabor, 119 Ga. 128(4), 46 S.E. 72; Jones v. Lanier Development Co., 188 Ga. 141, 2 S.E.2d 923; Ballard v. Waites, 194 Ga. 427, 429(3), 21 S.E.2d 848." Maddox v. Willis, 205 Ga. 596, 597(5), 54 S.E.2d 632 (1947). However, where there is no conflict in the evidence, the judge's discretion in granting or denying the interlocutory injunction becomes circumscribed by the applicable rules of law. See Corp., etc., Latter-Day Saints v. Statham, 243 Ga. 448, 254 S.E.2d 833 (1979); Davis v. Miller, 212 Ga. 836, 840, 96 S.E.2d 498 (1957). Given the settled nature of the law on this...

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17 cases
  • Com. v. Morris
    • United States
    • Pennsylvania Supreme Court
    • April 20, 2001
    ...authority under the All Writs Act, 28 U.S.C. § 1651(a)); see also Franklin v. Francis, 144 F.3d 429, 432 (6th Cir.1998); Zant v. Dick, 249 Ga. 799, 294 S.E.2d 508 (1982). Likewise, Pennsylvania courts have treated stay orders as preliminary injunctions under limited circumstances. Blackwell......
  • Amin v. State
    • United States
    • Wyoming Supreme Court
    • May 19, 1989
    ...v. Hamilton, 251 Ga. 553, 307 S.E.2d 667 (1983), cert. denied 466 U.S. 989, 104 S.Ct. 2371, 80 L.Ed.2d 843 (1984); and Zant v. Dick, 249 Ga. 799, 294 S.E.2d 508 (1982), habeas corpus granted 833 F.2d 1448 (11th Cir.1987). See likewise, Louisiana: State ex rel. Busby v. Butler, 538 So.2d 164......
  • Owens v. Hill
    • United States
    • Georgia Supreme Court
    • May 19, 2014
    ...whether the relief granted was properly referred to by the parties and the Superior Court as a stay of execution. See Zant v. Dick, 249 Ga. 799, 799, 294 S.E.2d 508 (1982) (holding that a stay of execution is the equivalent of an interlocutory injunction, at least where there has been a hea......
  • Dick v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 24, 1987
    ...for the purpose of holding a limited evidentiary hearing. The Supreme Court of Georgia affirmed the grant of the stay, Zant v. Dick, 249 Ga. 799, 294 S.E.2d 508 (1982), and in later proceedings, the Court also directed the lower court to receive testimony from one of Dick's co-defendants, C......
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1 books & journal articles
  • Variations on a Theme: Georgia's Evolving Test for Interlocutory Injunctive Relief
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 28-1, August 2022
    • Invalid date
    ...277 Ga. 761, 762-763, 595 S.E.2d 74, 75 (2004). [41] 273 Ga. at 280, 539 S.E.2d at 811. [42] 280 Ga. at 210, 626 S.E.2d at 471. [43] 249 Ga. 799, 294 S.E.2d 508 (1982) (where the legal similarities and differences between interlocutory injunctions and stays of execution were discussed). [44......

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