(Ga. L. 1897, p. 53, § 1; Penal Code 1910, § 1316; Code 1933, § 50-126; Ga. L. 1946, p. 726, § 1.)
Cross references.- Certification and transmittal of transcript and record, Rules of the Supreme Court of the State of Georgia, Rule 15.
Granting of application where there is arguable merit, Rules of the Supreme Court of the State of Georgia, Rule 26.
Law reviews.- For survey article on local government law, see 60 Mercer L. Rev. 263 (2008).
JUDICIAL DECISIONS
This section is applicable to a case involving detention of a minor. Weaver v. Thompson, 11 Ga. App. 132, 74 S.E. 901 (1912).
Review of judgments made by superior and probate courts.
- Judgments on habeas corpus are subject to review by writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) if rendered by the judge of the superior court and by certiorari if rendered by the judge of the probate court. Perry v. McLendon, 62 Ga. 598 (1879). See also Livingston v. Livingston, 24 Ga. 379 (1858).
Appeal by custodians of prisoners.
- Writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) lies in favor of wardens, sheriffs, and other custodians of prisoners when it is sought by habeas corpus to release from custody prisoners held under criminal proceedings. Davis v. Smith, 7 Ga. App. 192, 66 S.E. 401 (1909).
Appeal from municipal court conviction for violating ordinances.
- One restrained of liberty as a result of a municipal court conviction for violation of municipal ordinances is entitled to a direct appeal from a habeas court's final order on a habeas petition because a municipal court presiding over the trial of such charges is not a state court of record; accordingly, a business operator who had been convicted in a municipal court for violating city ordinances governing permits and hours of operation was entitled to a direct appeal from a final order on a habeas petition. Nguyen v. State, 282 Ga. 483, 651 S.E.2d 681 (2007).
Disposition of petitioner pending appeal of habeas corpus decision in extradition case.
- Filing of bill of exceptions (see now O.C.G.A. §§ 5-6-49 and5-6-50) to decision of the judge in the hearing of a habeas corpus case, when the petitioner is being detained under an extradition warrant, does not operate as a supersedeas, and pending decision on appeal, the petitioner must remain in the condition in which the petitioner is placed by judgment of the lower court; in such a case there is no provision in the law for bail. Hames v. Sturdivant, 181 Ga. 472, 182 S.E. 601 (1935).
Appeal not dismissed at expiration of time covered by sentence.
- When habeas corpus and writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) thereon are brought to free individual from imprisonment under a sentence alleged to have been illegal, a writ of error will not be dismissed on the ground that the period of time covered by the sentence has expired. Lark v. State, 55 Ga. 435 (1875).
Custody awaiting probation revocation hearing.
- When the appellant filed a habeas petition while in custody in lieu of bond awaiting a probation revocation hearing, the appellant was authorized under O.C.G.A. § 9-14-22 to appeal directly the denial of habeas relief. Smith v. Nichols, 270 Ga. 550, 512 S.E.2d 279 (1999).
Dismissal of appeal held proper when petitioner subsequently released on bond.
- When a writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) to order remanding petitioner to jail was sued out, the writ would be dismissed since it appeared that, subsequent to the order complained of, the petitioner was indicted by the grand jury of the county for the same offense for which the petitioner had been committed, and upon giving bond had been released from custody. Carter v. Gabrels, 136 Ga. 177, 71 S.E. 3 (1911).
Judgment of lower court not disturbed on review if supported by evidence.
- On habeas corpus proceeding, judge is the trier of law and facts and the judge's decision, if supported by any evidence, is not subject to review in the Supreme Court. Grier v. Balkcom, 213 Ga. 133, 97 S.E.2d 151 (1957).
Jurisdiction of appeal of decisions of the habeas court.
- When a habeas court found the trial court had violated O.C.G.A. § 17-8-57 and that appellate counsel was ineffective for failing to raise the issue on appeal, it was error for the habeas court to order that the defendant was entitled to a new appeal since this action: (1) violated the rule that a criminal defendant was not entitled to a second appeal; (2) wasted judicial resources, as an appeal required the appellate court to engage in the same analysis the habeas court had just performed; and (3) created the possibility, realized in this case, that an appellate court would be presented with a matter outside of the court's jurisdiction as appeals of decisions of a habeas court were the sole province of the Georgia Supreme Court. Milliken v. Stewart, 276 Ga. 712, 583 S.E.2d 30 (2003).
Cited in Broomhead v. Chisolm, 47 Ga. 390 (1872); Mansfield v. State, 94 Ga. 74, 20 S.E. 249 (1894); Thompson v. Thompson, 124 Ga. 874, 53 S.E. 507 (1906); Weaver v. Thompson, 11 Ga. App. 132, 74 S.E. 901 (1912); Richards v. McHan, 139 Ga. 37, 76 S.E. 382 (1912); Cooley v. Dixon, 149 Ga. 506, 101 S.E. 181 (1919); Warnock v. Burch, 181 Ga. 586, 183 S.E. 563 (1936); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975); Gresham v. Edwards, 281 Ga. 881, 644 S.E.2d 122 (2007).
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 108, 169.
C.J.S.- 39A C.J.S., Habeas Corpus, §§ 398, 401.
ALR.
- Right of state or public officer to appeal from an order in habeas corpus releasing one from custody, 30 A.L.R. 1322.
Supersedeas, stay, or bail, upon appeal in habeas corpus, 63 A.L.R. 1460; 143 A.L.R. 1354.
Right of extraditee to bail after issuance of governor's warrant and pending final disposition of habeas corpus claim, 13 A.L.R.5th 118.