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Call Now: 904-383-7448Service 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.
(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 1985, p. 283, § 1.)
- 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).
- 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).
- If a petitioner whose license has been revoked is not in physical custody, but alleges that the petitioner's liberty is otherwise restrained, the proper party respondent is not the State of Georgia but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).
- 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).
- 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).
- 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).
Cited in Abrams v. Laughlin, 304 Ga. 34, 816 S.E.2d 26 (2018).
- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 98.
- 39A C.J.S., Habeas Corpus, § 284 et seq.
Total Results: 11
Court: Supreme Court of Georgia | Date Filed: 2022-12-20
Snippet: capital felony actions before [this] Court); OCGA § 9-14-45 (providing that, if a habeas
Court: Supreme Court of Georgia | Date Filed: 2022-03-15
Snippet: § 9-14-44, and how they must be served, OCGA § 9-14-45; establishes deadlines for answering a petition
Court: Supreme Court of Georgia | Date Filed: 2018-06-18
Citation: 816 S.E.2d 26, 304 Ga. 34
Snippet: the person having custody of Abrams, see OCGA § 9-14-45, but only by virtue of Laughlin's employment with
Court: Supreme Court of Georgia | Date Filed: 2005-10-03
Citation: 620 S.E.2d 798, 279 Ga. 691, 2005 Ga. LEXIS 640
Snippet: serve the district attorney pursuant to OCGA § 9-14-45. Because the State failed to raise that alleged
Court: Supreme Court of Georgia | Date Filed: 2002-11-25
Citation: 276 Ga. 12, 573 S.E.2d 49, 2002 Fulton County D. Rep. 3562, 2002 Ga. LEXIS 1037
Snippet: served on the District Attorney pursuant to OCGA § 9-14-45. However, the jurisdictional facts of this case
Court: Supreme Court of Georgia | Date Filed: 2002-11-15
Citation: 573 S.E.2d 25, 2002 Ga. LEXIS 1105
Snippet: than the Fulton County District Attorney. OCGA § 9-14-45 provides that: Service of a [habeas] petition
Court: Supreme Court of Georgia | Date Filed: 2002-11-15
Citation: 577 S.E.2d 755, 276 Ga. 1, 573 S.E.2d 25, 2002 Fulton County D. Rep. 3412, 2002 Ga. LEXIS 1033
Snippet: than the Fulton County District Attorney. OCGA § 9-14-45 provides that: Service of a [habeas] petition
Court: Supreme Court of Georgia | Date Filed: 1995-11-20
Citation: 463 S.E.2d 690, 265 Ga. 892
Snippet: in which he is incarcerated. OCGA §§ 9-14-43; 9-14-45; McBurnett v. Warren, 208 Ga. 225, 66 S.E.2d 49
Court: Supreme Court of Georgia | Date Filed: 1986-07-15
Citation: 345 S.E.2d 584, 256 Ga. 152
Snippet: divorce action.[3] The legislature, in OCGA § 9-14-45, has chosen a party other than the district attorney
Court: Supreme Court of Georgia | Date Filed: 1985-09-10
Citation: 334 S.E.2d 161, 254 Ga. 719, 1985 Ga. LEXIS 824
Snippet: custody of the petitioner. See, e.g., OCGA §§ 9-14-45 and 9-14-46. Where the petitioner is not in physical
Court: Supreme Court of Georgia | Date Filed: 1985-01-09
Citation: 324 S.E.2d 471, 253 Ga. 711, 1985 Ga. LEXIS 542
Snippet: in which he is incarcerated. OCGA §§ 9-14-43, 9-14-45. Therefore, the trial court did not err in denying