Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 9-14-45 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-14-45 Case Law from Google Scholar Amendments to OCGA 9-14-45

TITLE 9 CIVIL PRACTICE

Section 14. Habeas Corpus, 9-14-1 through 9-14-53.

ARTICLE 2 PROCEDURE FOR PERSONS UNDER SENTENCE OF STATE COURT OF RECORD

9-14-45. Petition - Service.

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.

(Code 1933, § 50-127, enacted by Ga. L. 1967, p. 835, § 3; Ga. L. 1985, p. 283, § 1.)

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- If a petitioner whose license has been revoked is not in physical custody, but alleges that the petitioner's liberty is otherwise restrained, the proper party respondent is not the State of Georgia but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).

Cited in Abrams v. Laughlin, 304 Ga. 34, 816 S.E.2d 26 (2018).

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.

Cases Citing O.C.G.A. § 9-14-45

Total Results: 12  |  Sort by: Relevance  |  Newest First

Copy

Cook v. State, 870 S.E.2d 758 (Ga. 2022).

Cited 114 times | Published | Supreme Court of Georgia | Mar 15, 2022 | 313 Ga. 471

...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 served, OCGA § 9-14-45; establishes deadlines for answering a petition, OCGA § 9-14-47; and lays out how hearings must operate, OCGA § 9-14-48, what the habeas court must put in writing to support its judgment, OCGA § 9- 14-49, and how that judgment must...
Copy

Lacey v. State, 324 S.E.2d 471 (Ga. 1985).

Cited 28 times | Published | Supreme Court of Georgia | Jan 9, 1985 | 253 Ga. 711

...Nor are we able to construe his motion as a petition for habeas corpus, see Sims v. State, 230 Ga. 589, 590 (198 SE2d 298) (1973), because it was filed in the county in which he was convicted, rather than against the warden in the county in which he is incarcerated. OCGA §§ 9-14-43, 9-14-45....
Copy

Capote v. Ray, 577 S.E.2d 755 (Ga. 2002).

Cited 24 times | Published | Supreme Court of Georgia | Nov 15, 2002 | 276 Ga. 1, 573 S.E.2d 25, 2002 Fulton County D. Rep. 3412

...Appellant correctly served his application for habeas corpus on Warden Ray, and on the Clerk of the Superior Court of Fulton County. Appellant incorrectly served his application on the Attorney General of Georgia rather than the Fulton County District Attorney. OCGA § 9-14-45 provides that: Service of a [habeas] petition ......
...t Warden Ray was not a proper party to the action. However, because appellant is being held by federal authorities, he is being held "under the custody of some authority other than the [Georgia] Department of Corrections." [18] Therefore, under OCGA § 9-14-45, he should have served a copy of his petition on the district attorney of the county in which the petition was filed, Fulton County....
...[19] As appellant's improper service had no bearing on the habeas court's dismissal of this action, he may make proper service on the Fulton County District Attorney in conjunction with the remand of this case to the habeas court. As stated in OCGA § 9-14-45, such service may be made by regular mail....
...5, 7, 354 S.E.2d 126 (1987). [14] Cawthon v. Waco Fire &c. Ins. Co., 259 Ga. 632, 633, 386 S.E.2d 32 (1989). [15] See Lamas Co. v. Baldwin, 120 Ga.App. 149, 150, 169 S.E.2d 638 (1969). [16] Dismuke v. Stynchcombe, 237 Ga. 420, 421, 228 S.E.2d 817 (1976). [17] Id. [18] OCGA § 9-14-45....
Copy

Hardison v. Martin, 334 S.E.2d 161 (Ga. 1985).

Cited 21 times | Published | Supreme Court of Georgia | Sep 10, 1985 | 254 Ga. 719

...Rather, the Commissioner takes the position that the State of Georgia should have been named respondent in this action. We do not agree. In the traditional habeas corpus case the respondent will be the *722 person who has actual physical custody of the petitioner. See, e.g., OCGA §§ 9-14-45 and 9-14-46....
Copy

State of Georgia v. Fed. Def. Prog., Inc., 315 Ga. 319 (Ga. 2022).

Cited 19 times | Published | Supreme Court of Georgia | Dec 20, 2022

...period for the execution of a death sentence must be “sent immediately” to the Attorney General); OCGA § 45-15-3 (5) (providing that the Attorney General “represent[s] the state in all capital felony actions before [this] Court”); OCGA § 9-14-45 (providing that, if a habeas petitioner is being detained under the custody of the DOC, a copy of the petition must be served on the Attorney General)....
Copy

Derrer v. Anthony, 463 S.E.2d 690 (Ga. 1995).

Cited 17 times | Published | Supreme Court of Georgia | Nov 20, 1995 | 265 Ga. 892

...Finally, the Warden asserts that the habeas court erroneously ordered the Department of Corrections to release Anthony from confinement because the Department was not made a party to the case. Anthony properly filed the petition against Derrer, as the Warden of the institution in which he is incarcerated. OCGA §§ 9-14-43; 9-14-45; McBurnett v....
Copy

State v. Jaramillo, 620 S.E.2d 798 (Ga. 2005).

Cited 8 times | Published | Supreme Court of Georgia | Oct 3, 2005 | 279 Ga. 691

...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....
...In its response, filed by an assistant solicitor-general, the State argued it was not the proper party because it had no interest in the consequences of the conviction. The only reference in the response to service of process was an assertion that the provisions of OCGA § 9-14-45, to which Jaramillo made reference in his petition to explain service of process on the solicitor-general, do not apply to this case because Jaramillo is not currently incarcerated....
...In its brief, the State advanced the argument that it was not the proper party and also argued for the first time that service was insufficient because Jaramillo did not serve an additional copy of the petition on the district attorney pursuant to OCGA § 9-14-45....
...ing in the state court, except in those cases in which the commissioner of public safety is named as a party"). 2. For the purpose of addressing the enumeration of error asserted by the State in this appeal, we will assume without deciding that OCGA § 9-14-45 calls for service of an additional copy of the petition on the district attorney in the circumstances of this case....
...answer, the defense was waived and the habeas corpus court was correct in refusing to dismiss the petition on that ground. Jaramillo's request for a penalty for a frivolous appeal is denied. Judgment affirmed. All the Justices concur. NOTES [1] OCGA § 9-14-45 provides: Service of a petition brought under this article shall be made upon the person having custody of the petitioner....
Copy

Wiggins v. Lemley, 345 S.E.2d 584 (Ga. 1986).

Cited 5 times | Published | Supreme Court of Georgia | Jul 15, 1986 | 256 Ga. 152

...In this case, the district attorney also claims the authority to assert the state's interest by injecting himself into a non-criminal action. [2] The state certainly has an interest in a habeas action equal to its interest in a divorce action. [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....
...Corrections (the DOC). Where the prisoner is held under some authority other than the DOC, the district attorney of the circuit in which the petitioner is being detained, not the circuit where he was convicted, must defend the state's interest. OCGA § 9-14-45....
Copy

Abrams v. Laughlin, 816 S.E.2d 26 (Ga. 2018).

Cited 4 times | Published | Supreme Court of Georgia | Jun 18, 2018 | 304 Ga. 34

...331; OCGA § 1-3-4 (a) (1) ; Wilkerson v. Hart , 294 Ga. 605, 607 (2), 755 S.E.2d 192 (2014) ; Brower v. State , 298 Ga. App. 699, 706 (2), n. 3, 680 S.E.2d 859 (2009). The named respondent, Vance Laughlin, is the person having custody of Abrams, see OCGA § 9-14-45, but only by virtue of Laughlin's employment with a private company that operates Abrams's prison pursuant to a contract with the Georgia Department of Corrections....
Copy

Scott v. Wright, 276 Ga. 12 (Ga. 2002).

Cited 2 times | Published | Supreme Court of Georgia | Nov 25, 2002 | 573 S.E.2d 49, 2002 Fulton County D. Rep. 3562

...rtment of Corrections, his habeas corpus petition should be filed against the State of Georgia.” Capote v. Ray, supra at 3 (3). The habeas petition here was not actually filed against the State, nor served on the District Attorney pursuant to OCGA § 9-14-45....

Abrams v. Laughlin, Warden (Ga. 2018).

Published | Supreme Court of Georgia | Jun 18, 2018 | 573 S.E.2d 49, 2002 Fulton County D. Rep. 3562

...331; OCGA § 1-3-4 (a) (1); Wilkerson v. Hart, 294 Ga. 605, 607 (2) (755 SE2d 192) (2014); Brower v. State, 298 Ga. App. 699, 706 (2), n. 3 (680 SE2d 859) (2009). 4 The named respondent, Vance Laughlin, is the person having custody of Abrams, see OCGA § 9-14-45, but only by virtue of Laughlin’s employment with a private company that operates Abrams’s prison pursuant to a contract with the Georgia Department of Corrections....
Copy

Capote v. Ray, 573 S.E.2d 25 (Ga. 2002).

Published | Supreme Court of Georgia | Nov 15, 2002

...Appellant correctly served his application for habeas corpus on Warden Ray, and on the Clerk of the Superior Court of Fulton County. Appellant incorrectly served his application on the Attorney General of Georgia rather than the Fulton County District Attorney. OCGA § 9-14-45 provides that: Service of a [habeas] petition ......
...t Warden Ray was not a proper party to the action. However, because appellant is being held by federal authorities, he is being held "under the custody of some authority other than the [Georgia] Department of Corrections." [18] Therefore, under Code section 9-14-45, he should have served a copy of his petition on the district attorney of the county in which the petition was filed, Fulton County....
...ions. [19] As appellant's improper service had no bearing on the habeas court's dismissal of this action, he may make proper service on the Fulton County District Attorney in conjunction with the remand of this case to the habeas court. As stated in section 9-14-45, such service may be made by regular mail....
...[14] Cawthon v. Waco Fire & Cas. Ins. Co., 259 Ga. 632, 633, 386 S.E.2d 32 (1989). [15] See Lamas Co. v. Baldwin, 120 Ga.App. 149, 150, 169 S.E.2d 638 (1969). [16] Dismuke v. Stynchcombe, 237 Ga. 420, 421, 228 S.E.2d 817 (1976). [17] Id. [18] OCGA § 9-14-45....