O.C.G.A.
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
Service of a petition brought under this article shall be made upon the person having custody of the petitioner. If the petitioner is being detained under the custody of the Department of Corrections, an additional copy of the petition shall be served on the Attorney General. If the petitioner is being detained under the custody of some authority other than the Department of Corrections, an additional copy of the petition shall be served upon the district attorney of the county in which the petition is filed. Service upon the Attorney General or the district attorney may be had by mailing a copy of the petition and a proper certificate of service.
History
(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 1985, p. 283, § 1.)
Annotations
JUDICIAL DECISIONS District attorney’s authority outside judicial circuit. - District attorney lacks authority to assert the state’s interest in that official capacity in a habeas action originating outside of the district attorney’s own judicial circuit. Wiggins v. Lemley, 256 Ga. 152, 345 S.E.2d 584 (1986). Motion not construed as habeas petition when filed in county of conviction. - Criminal defendant’s motion in arrest of judgment filed three years late could not be construed as a petition for habeas corpus because the motion was filed in the county in which the defendant was convicted, rather than against the warden in the county in which the defendant was incarcerated. Lacey v. State, 253 Ga. 711, 324 S.E.2d 471 (1985). Petitioner challenging driver’s license revocation must file against commissioner of public safety. - If a petitioner whose license has been revoked is not in physical custody, but alleges that the petitioner’s liberty is otherwise restrained, the proper party respondent is not the State of Georgia but rather the commissioner of public safety who, in the exercise of a statutory duty, is restricting the petitioner’s liberty. Hardison v. Martin, 254 Ga. 719, 334 S.E.2d 161 (1985). Dismissal of application for failure to comply with section. - Since the application for writ of habeas corpus did not comply with the requirements of this
section, the trial court did not err in dismissing the application. Baker v. Tanner, 231 Ga. 723, 204 S.E.2d 136 (1974). But see Mitchell v. Forrester, 247 Ga. 622, 278 S.E.2d 368 (1981). Required service by petitioner in federal custody outside state. - Habeas corpus petitioner who was challenging Georgia convictions while incarcerated in a federal penitentiary should have filed the petitioner’s action against the State of Georgia only, and not against the prison warden; additionally, since the petition did not list the State, but the petitioner’s memorandum of law indicated that it was filed against the State, remand was required in order to properly serve the district attorney by regular mail. Scott v. Wright, 276 Ga. 12, 573 S.E.2d 49 (2002). Service on district attorney. - Trial court did not err in refusing to dismiss the petitioner’s application for a writ of habeas corpus; even assuming that a requirement existed that the district attorney had to be served with a copy of the application, the state failed to timely raise the argument that it applied since it did not set forth the argument either in the state’s answer to the petitioner’s application or by motion filed before or simultaneously with the answer, and thus the defense of insufficiency of service was waived. State v. Jaramillo, 279 Ga. 691, 620 S.E.2d 798 (2005).
RESEARCH REFERENCES Am. Jur. 2d. - 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 98.
C.J.S. - 39A C.J.S., Habeas Corpus, § 284 et seq.
Notes of Decisions
Cited in
13
cases (
4 in the last 5 years), 1985–2022 · leading case:
Capote v. Ray, 577 S.E.2d 755 (Ga. 2002).
Capote v. Ray, 577 S.E.2d 755 (Ga. 2002).
· cites it 16× “OCGA § 9-14-45 provides that: Service of a [habeas] petition .”
Cook v. State, 870 S.E.2d 758 (Ga. 2022).
· cites it 4× “’ constitutional rights, including claims that a right to appeal was frustrated because of a constitutional violation—establishes that the superior court in the county of the defendant’s detention has “exclusive jurisdiction” over the defendant’s habeas petition, OCGA § 9-14-43;…”
State of Georgia v. Fed. Def. Prog., Inc., 315 Ga. 319 (Ga. 2022).
· cites it 4× “a certified copy of the sentence is sent to the Attorney General); OCGA § 17-10-40 (a) (providing that a certified copy of an order fixing a new time period for the execution of a death sentence must be “sent immediately” to the Attorney General); OCGA § 45-15-3 (5) (providing…”
State v. Jaramillo, 620 S.E.2d 798 (Ga. 2005).
· cites it 10× “In this appeal from an order granting habeas corpus relief to Filiberto Jaramillo, the State raises a single procedural issue, arguing the habeas corpus court should have dismissed the petition for failure to serve the district attorney pursuant to OCGA § 9-14-45. Because the…”
Hardison v. Martin, 334 S.E.2d 161 (Ga. 1985).
· cites it 2× “, OCGA §§ 9-14-45 and 9-14-46. Where the petitioner is not in physical custody, but alleges in his habeas petition that his liberty is otherwise restrained, the proper party respondent is that person or entity so restricting the petitioner’s freedom.”
Abrams v. Laughlin, 816 S.E.2d 26 (Ga. 2018).
· cites it 2× “The Attorney General represents only the intervenor, who, for the sake of simplicity, is referred to herein as "the State.”
Wiggins v. Lemley, 345 S.E.2d 584 (Ga. 1986).
· cites it 4× “3 The legislature, in OCGA § 9-14-45, has chosen a party other than the district attorney of the circuit in *155 which the petitioner was convicted to protect that interest.”
Scott v. Wright, 573 S.E.2d 49 (Ga. 2002).
· cites it 2× “The habeas petition here was not actually filed against the State, nor served on the District Attorney pursuant to OCGA § 9-14-45. However, the jurisdictional facts of this case are indistinguishable from Capote .”
Capote v. Ray, 573 S.E.2d 25 (Ga. 2002).
· cites it 8× “OCGA § 9-14-45 provides that: Service of a [habeas] petition .”
Errol M. Windhom v. State (Ga. Ct. App. 2018).
· cites it 2× “The Supreme Court, however, returned the case to us, stating in relevant part: “[I]t is clear that the substance of appellant’s filings in the court of conviction below were in the nature of a motion to vacate his armed robbery conviction and sentence, and not a petition for…”
Abrams v. Laughlin, Warden (Ga. 2018).
· cites it 2× “For this reason, the habeas court granted a motion to intervene that was filed by Homer Bryson, the Commissioner of the Department of Corrections. The Attorney General represents only the intervenor, who, for the sake of simplicity, is referred to herein as “the State.”
Lamont Armstrong v. State (Ga. Ct. App. 2022).
“The Habeas Corpus Act establishes that the superior court in the county of the defendant’s detention has “exclusive jurisdiction” over the defendant’s habeas petition, OCGA § 9-14-43; contains requirements for what petitions must include, OCGA § 9-14-44, and how they must be…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.