Statutory incentive program not bill of attainder.

- Federal statutory incentive for physicians to become "participating" Medicare physicians (providing Medicare enrollees with lists of the specialties and phone numbers of participating physicians, more efficient processing of claims and the recognition of increased billing charges to non-Medicare patients in future calculations of participating physicians' "customary" charges) and a statutory enforcement mechanism (civil fines for raising fees and/or barring nonparticipating physicians from treating Medicare patients for a period up to five years) did not constitute a bill of attainder. Whitney v. Heckler, 780 F.2d 963 (11th Cir.), cert. denied, 479 U.S. 813, 107 S. Ct. 65, 93 L. Ed. 2d 23 (1986).

Discovery.

- The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not a bill of attainder, which refers to legislative imposition of punishment on specific persons or on class of persons without any judicial proceeding. Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007).

Removal of county commissioner from office.

- Local act, which had the effect of removing a county commissioner from office before the end of the two-year term to which she had been appointed to fill a vacancy left by a deceased commissioner, was a bill of attainder prohibited by both the Georgia and United States Constitutions. Fulton v. Baker, 261 Ga. 710, 410 S.E.2d 735 (1991).

Local deannexation statute that included the area of the city in which the mayor resided, making the mayor ineligible to hold office, was not an unconstitutional bill of attainder because it neither singled out the mayor nor punished the mayor as an officeholder. Lee v. City of Villa Rica, 264 Ga. 606, 449 S.E.2d 295 (1994).

Federal statute on firearm possession constitutional.

- Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not impose punishment in violation of the bill of attainder clause. National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).

Nature of writ of habeas corpus.

- The great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion. The great writ is of such antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status has been far from static. It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be "agreeable to the principles and usages of law." The petition must be in writing and under oath. Martin v. Hiatt, 174 F.2d 350 (5th Cir. 1949).

Prisoner's right to attack detainer or sentence not yet served.

- Prisoners in custody under one sentence may attack a sentence which they have not yet begun to serve. A petitioner held in one state may attack a detainer lodged against him by another state. A petitioner can bring his action attacking his sentence in the court that imposed the sentence. Callahan v. State, 235 Ga. 359, 219 S.E.2d 717 (1975).

Appointment of counsel for habeas corpus petitioner.

- Since habeas corpus is not a criminal proceeding, neither the U.S. Const., amend. 6 nor the Georgia Constitution requires the appointment of counsel for a habeas corpus petitioner. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Defendant has no right to receive or spend state funds for appointment of experts or investigators in habeas corpus proceedings, including death penalty cases. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Appropriate remedy for cruel and unusual punishment.

- Assuming arguendo that prisoner's allegations of mistreatment demonstrate cruel and unusual punishment, he still would not be entitled to release from prison, the appropriate remedy being to enjoin continuance of any practices or to require correction of any conditions causing him cruel and unusual punishment. Cook v. Hanberry, 596 F.2d 658 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866, 61 L. Ed. 2d 301 (1979).

Error that deprives defendant of constitutional right, unless waived according to law, may be raised on application for habeas corpus. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

"Intentional abandonment or withholding" doctrine obtains on a second habeas corpus petition only if petitioner has not previously presented the ground for relief in a federal habeas corpus proceeding. Fleming v. Kemp, 794 F.2d 1478 (11th Cir. 1986), cert. denied, 490 U.S. 1028, 109 S. Ct. 1764, 104 L. Ed. 2d 200 (1989).

Procedural limitations.

- The procedural limitations of O.C.G.A. § 40-13-33(a) and (b) neither suspend the writ of habeas corpus, nor cause a court to dismiss an action for habeas without consideration of the equities presented. Rather, the statute provides that in a narrowly defined class of cases - those in which a petitioner who is not in custody seeks habeas relief from a misdemeanor traffic conviction - the petition for habeas corpus must be filed within 180 days of conviction. As such, it imposes a permissible procedural restriction on a limited group of cases. Earp v. Boylan, 260 Ga. 112, 390 S.E.2d 577 (1990).

The federal Antiterrorism and Effective Death Penalty Act of 1996, which, inter alia, requires a habeas petitioner to obtain leave from the appellate court before filing a second habeas petition in the district court, constitutes a restraint on abuse of the habeas writ and does not "suspend" the writ in violation of clause 2 of this section. Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).

Applicability to penal statutes only.

- The ex post facto provision of the federal constitution applies only to penal statutes, and could not reach the Tort Claim's Act's provision for immunity for prison officials for negligence occurring prior to the act's enactment. Datz v. Brinson, 208 Ga. App. 455, 430 S.E.2d 823 (1993).

Ex post facto laws affect substantive right of accused.

- Upon the defendant's constitutional challenge to the retrospective application of three provisions of the Criminal Justice Act, Ga. Laws 2005, p. 20, no reversible error resulted from challenges to the closing arguments and admission of character evidence, as: (1) the former was not distinctly ruled upon by the lower court; and (2) the lower court sustained objections to the admissibility of character evidence, and, thus, the state could not introduce character evidence regarding the defendant's prior criminal convictions; moreover, a change in the number of the defendant's peremptory challenges by the Act did not affect any protected right by the application of the amended version of O.C.G.A. § 15-12-165, as strikes were procedural and not substantive in nature. Madison v. State, 281 Ga. 640, 641 S.E.2d 789 (2007).

Law that is merely procedural and does not add to the quantum of punishment cannot violate the ex post facto clause even if it is applied retrospectively. United States v. Reed, 924 F.2d 1014 (11th Cir. 1991).

School contract unaffected by subsequent enactment.

- A contract made and indebtedness incurred by county superintendent of schools in 1918, on behalf of county board of education, for school supplies and furnishings, which were placed in schoolhouses of county and put to use by pupils thereof, was prior to enactment of Code 1933, § 32-928 (see O.C.G.A. § 20-2-504), and therefore is not void under such provisions, the same not being construed as being applicable to contracts made before its passage. Board of Educ. v. Southern Mich. Nat'l Bank, 184 Ga. 641, 192 S.E. 382 (1937).

Discovery.

- The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not an ex post facto law because it affects purely procedural rights and duties. Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007).

Ex post facto laws prohibited by state and federal Constitutions refer only to laws which aggravate the crime, increase the punishment, or allow conviction on a lesser or different weight of evidence, and not to those which reduce or mollify the penalty. Barton v. State, 81 Ga. App. 810, 60 S.E.2d 173 (1950).

Even though a statute, passed after a conviction, uses the conviction as an element of a future offense, this is not an ex post facto law, because the defendant's punishment for the earlier conviction is not increased, since the statute punishes only for a future offense, and that punishment is rationally enhanced by the prior conviction. State v. Dean, 235 Ga. App. 847, 510 S.E.2d 605 (1998).

Amendment changing retroactive effect of prior amendment.

- An amendment which changed the retroactive effect of an earlier amendment to O.C.G.A. § 40-5-67.1, the implied consent warning law, so that it applied only to stops made after the effective date of the earlier amendment, rather than to cases pending on such date, did not violate federal or state ex post facto constitutional provisions. State v. Martin, 266 Ga. 244, 466 S.E.2d 216 (1996).

Retroactive operation of county zoning plan.

- In passing a comprehensive zoning plan and amending it, whereby properties of parties were classified for use as agricultural residential district, board of county commissioners did so under the police power, and action of board in changing the use classification of defendants' property from agricultural use to that of apartment use does not deny plaintiffs equal protection of law, nor operate retroactively in violation of federal and state constitutional provisions prohibiting passage of ex post facto laws, nor does such action deny plaintiffs equal protection of law in violation of U.S. Const., amend. 14. Morgan v. Thomas, 207 Ga. 660, 63 S.E.2d 659 (1951).

Validity of zoning ordinance.

- Because plaintiff, while proceeding to zone property was pending, filed application to authorize building of filling station, and ordinance was later adopted zoning plaintiff's property for residential purposes, such ordinance was not in violation of the federal and state Constitutions as an ex post facto or retroactive law. Gay v. Mayor of Lyons, 212 Ga. 438, 93 S.E.2d 352 (1956).

As a general rule, any law is ex post facto which is enacted after offense was committed, and which, in relation to offense or its consequences, alters the situation of the accused to his disadvantage. A statute, however, cannot be an ex post facto law if it is apparent that Legislature in enacting the statute did not make criminal an act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence and require less or different evidence than the law required at time of commission of offense; and did not deprive the accused of any substantial right or immunity he possessed at time of commission of offense. Todd v. State, 228 Ga. 746, 187 S.E.2d 831, answer conformed to, 125 Ga. App. 841, 189 S.E.2d 696 (1972).

Validity of statute removing prior right.

- Although it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure and leaving untouched all substantial protections with which existing law surrounds the person accused of crime is not within the constitutional prohibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses if it takes from the accused a substantial right given to the accused by law in force at the time to which guilt relates, and such statute cannot be sustained simply because, in a general sense, it may be said to regulate procedure. Todd v. State, 228 Ga. 746, 187 S.E.2d 831, answer conformed to, 125 Ga. App. 841, 189 S.E.2d 696 (1972).

Effect of amending statute governing dates of terms of court.

- Amendment of a statutory provision so as to change the dates of commencement of terms of court was not an ex post facto law as applied to defendant, who was not at any time entitled to discharge and acquittal of the offenses with which the defendant was charged. Aspinwall v. State, 201 Ga. App. 203, 410 S.E.2d 388 (1991).

In order for statute to violate prohibition against ex post facto laws, it must affect substantive right of accused. An accused does not have a vested right in a mere mode of procedure. Eades v. State, 232 Ga. 735, 208 S.E.2d 791 (1974).

O.C.G.A. § 17-10-1 did not implicate ex post facto concerns since an inmate could not have had a substantial right to receive probation, and the revocation of an inmate's probation did not inflict a greater punishment than was permitted at the times the offenses were committed; Jones v. State, 260 Ga. App. 401, 579 S.E.2d 827 (2003), was overruled. Postell v. Humphrey, 278 Ga. 651, 604 S.E.2d 517 (2004).

Validity of statute altering procedural conduct of criminal trials.

- If the changes effected by enactment of a law constitute merely an alteration in conditions deemed necessary for the orderly and just conduct of criminal trials, they do not deprive defendant of any substantial personal right within meaning of constitutional prohibitions of ex post facto laws. Todd v. State, 228 Ga. 746, 187 S.E.2d 831, answer conformed to, 125 Ga. App. 841, 189 S.E.2d 696 (1972).

Statute reducing peremptory strikes.

- Retroactive application of O.C.G.A. § 15-12-165's amended reduction of the number of peremptory strikes from 20 to 12 did not violate ex post facto clause, as number of peremptory challenges is solely matter of procedure. Seats v. State, 210 Ga. App. 74, 435 S.E.2d 286 (1993).

Jury determination of sentence is not a substantive right coming within proscriptions of ex post facto laws of U.S. Const., art. I, sec. IX, cl. 3. Adkins v. State, 134 Ga. App. 507, 215 S.E.2d 270 (1975); Mealor v. State, 134 Ga. App. 564, 215 S.E.2d 272 (1975).

Effect of amending statute to reduce number of peremptory jury challenges.

- The application to a criminal defendant of the statutory amendment reducing the number of the defendant's peremptory strikes did not violate the constitutional prohibition against ex post facto laws. Stargel v. State, 210 Ga. App. 619, 436 S.E.2d 786 (1993).

Effect of amending statute to reduce number of impaneled jurors.

- Application of the 1992 amendment to O.C.G.A. § 15-12-160 requiring the court to have 30, rather than 42, impaneled jurors from which the defense and prosecution may strike jurors did not violate the constitutional prohibition against ex post facto laws. Shuler v. State, 213 Ga. App. 790, 446 S.E.2d 225 (1994).

Ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; or that aggravates a crime, or makes it greater than it was when committed. United States v. Brown, 555 F.2d 407 (5th Cir. 1977), appeal dismissed and cert. denied, 435 U.S. 904, 98 S. Ct. 1448, 55 L. Ed. 2d 494 (1978); Federal Election Comm'n v. Lance, 635 F.2d 1132 (5th Cir.), appeal dismissed, 453 U.S. 917, 101 S. Ct. 3151, 69 L. Ed. 2d 999 (1981).

Mail fraud convictions for conduct that started before enactment of the criminal statute and continued after the effective date thereof did not violate the ex post facto clause. United States v. Paradies, 98 F.3d 1266 (11th Cir. 1996), cert. denied, 521 U.S. 1106, 117 S. Ct. 2483, 138 L. Ed. 2d 992 (1997), cert. denied, 522 U.S. 1014, 118 S. Ct. 598, 139 L. Ed. 2d 487 (1997).

Restriction on judicial, as well as legislative, powers.

- The ex post facto clause is a limitation upon the powers of the Legislature; but the principle on which the clause is based - the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties - is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the due process clause. An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law which U.S. Const., art. I, sec. IX, cl. 3 forbids. United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1448, 55 L. Ed. 2d 494 (1978).

Retroactive application of note to sentencing guideline.

- A note to the United States Sentencing Guidelines, although it took effect after an alien had been sentenced, did not violate the ex post facto clause because the application note was added to clarify an existing guideline, and such a note does not have the force of law, as does a guideline. Thus, the note did not change the law. United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992).

Habitual violator statute allowing consideration of offenses which occurred before enactment of statute is not ex post facto.

- The repetition of the criminal conduct aggravates offender's guilt and justifies heavier penalties when he is again convicted, and the penalty is imposed only for the new crime but is heavier if the offender is a habitual violator. The increased penalty is for the latest crime which is considered to be an aggravated offense because it is repetitive. Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978).

Validity of post-sentence action delaying eligibility for parole.

- Although changes in a statute or regulations that are procedural or remedial in nature may apply retroactively, official post-sentence action that delays eligibility for supervised release runs afoul of the ex post facto proscription. United States ex rel. Graham v. United States Parole Comm'n, 629 F.2d 1040 (5th Cir. 1980).

Validity of statute or regulations affecting prisoner's substantive right to parole.

- If the Parole Commission and Reorganization Act (18 U.S.C. § 4201 et seq.) or the regulations promulgated thereunder effectuate only a procedural change in the manner in which the Parole Commission determines prisoner's eligibility for parole, then the statute and the regulations may be applied retroactively; if, however, the statute or the regulations affect prisoner's substantive right to parole eligibility, neither can be so applied retroactively without violating the ex post facto clause. Because parole regulations were amended to provide that after an interim hearing a presumptive release date or the date of a four-year reconsideration hearing shall not be advanced except under clearly exceptional circumstances, case involving petition for habeas corpus and mandamus was remanded for determination of whether the "clearly exceptional circumstances" test affected prisoner's substantive right to parole eligibility in violation of ex post facto clause. United States ex rel. Graham v. United States Parole Comm'n, 629 F.2d 1040 (5th Cir. 1980).

Retroactive change in the method for calculating the tentative parole month.

- Retroactive application of Rule 475-3-.05 (2) of the Board of Pardons and Paroles, allowing the board to extend the interval between parole reconsiderations up to a period of eight years for an inmate serving a life sentence, does not violate the ex post facto clause of the United States Constitution. Ray v. Jacobs, 272 Ga. 760, 534 S.E.2d 418 (2000).

It is not a violation of ex post facto clause for individual to be sentenced to a penalty less harsh than the one it appeared the defendant would be subjected to, and was given notice of, at the moment of the crime. Federal Election Comm'n v. Lance, 617 F.2d 365 (5th Cir. 1980), appeal dismissed, 453 U.S. 917, 101 S. Ct. 3151, 69 L. Ed. 2d 999 (1980).

Application of the 1984 amendment to Rule 704 of the Federal Rules of Evidence, restricting expert testimony as to the legal insanity of the accused, to a case involving offenses occurring prior to the effective date of the amendment, did not violate equal protection nor the ex post facto clause. United States v. Alexander, 805 F.2d 1458 (11th Cir. 1986).

Enhanced sentencing statute for DUI.

- Defendant who committed a DUI offense on November 11, 1990, was improperly subjected to the enhanced sentencing provisions contained in O.C.G.A. § 40-6-391(c)(3)(A), which did not become effective until January 1, 1991. Holtapp v. City of Fayetteville, 208 Ga. App. 606, 431 S.E.2d 403 (1993).

Election of application of ex post facto law.

- Application of the life-without-parole statute to defendant did not violate ex post facto prohibitions where the defendant expressly elected the application, and the statute did not establish a greater penalty or alter the situation to the defendant's disadvantage. Brantley v. State, 268 Ga. 151, 486 S.E.2d 169 (1997), cert. denied, 522 U.S. 985, 118 S. Ct. 449, 139 L. Ed. 2d 384 (1997).

Improper sentence when pre-amendment version of sexual battery statute cited.

- Defendant's sentence to five years imprisonment pursuant to the amended version of O.C.G.A. § 16-6-22.1, with regard to defendant's conviction for sexual battery against a child under the age of 16 years, without specific jury finding that conduct for which defendant was convicted occurred after the amendment, was erroneous and required defendant's sentence to be vacated and remanded to the trial court for resentencing; trial court should have required special verdict form that addressed both defendant's pre-amendment and post-amendment conduct to avoid a potential ex post facto violation. Forde v. State, 289 Ga. App. 805, 658 S.E.2d 410 (2008).

Firearm prohibition based on criminal activity.

- Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not violate the ex post facto clause. National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).

Amendment of forcible rape statute meant indictment within statute of limitations.

- With regard to a defendant's conviction for forcible rape of the defendant's child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim's 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case noting the extension of the statute of limitation to 15 years as to forcible rape by the 1996 amendment to O.C.G.A. § 17-3-1; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719, 681 S.E.2d 174 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. 2010).

Federal Department of Health and Human Services could not be compelled to pay federal funds contrary to the Hyde Amendment.

- Congressional funding restrictions directing that no federal funds appropriated to pay the federal share of the Medicaid program were to be used to finance certain abortions - to reimburse the state for funds it expended for medically necessary abortions performed during the period when it was required to fund such abortions pursuant to court order, under the mistaken rationale that the state was liable, under federal law, to fund such abortions even absent federal financial participation. Georgia ex rel. Dep't of Medical Assistance v. Heckler, 768 F.2d 1293 (11th Cir. 1985), cert. denied, 474 U.S. 1059, 106 S. Ct. 803, 88 L. Ed. 2d 779 (1986).

Determination of existence of process of exportation.

- Under decisions of the United States Supreme Court, the federal Constitution gives tax immunity to the process of exportation; this process begins at that point where there is a manifest certainty that the destination of the goods is a foreign country. This certainty is established when the goods are delivered to a common carrier consigned to a destination abroad even though title may pass in this state; in a proper case this certainty may exist when the purchaser takes actual delivery in this state. 1960-61 Op. Att'y Gen. p. 552.

ALR.

- Constitutional or statutory changes affecting grand jury or substituting information for indictment as an ex post facto law, 53 A.L.R. 716.

Effect of statutory change of penalty or punishment after conviction, 55 A.L.R. 443.

Constitutionality of retroactive statute curing defect in private instrument purporting to convey title or create interest in property or as to filing or recording thereof, 57 A.L.R. 1197.

Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.

Retrospective operation of statutes relating to alimony or suit money in divorce, 97 A.L.R. 1188.

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011.

Constitutionality of retrospective statutes as regards chattel mortgages, 146 A.L.R. 1100.

Retroactive application, to previous sales, of statutes reducing period of redemption from tax sales, as unconstitutional impairment of contract obligations, 147 A.L.R. 1123.

Retrospective statute subjecting interests of trust beneficiaries to claims of creditors, 151 A.L.R. 1417.

Constitutionality of retroactive statute limiting time for duration or enforcement of existing mortgage, or other real estate lien, or ground rent, 158 A.L.R. 1043.

Effect, as to prior offenses, of amendment increasing punishment for crime, 167 A.L.R. 845.

Power to abolish or discontinue office, 172 A.L.R. 1366.

Retrospective operation of criminal negligence statute, 14 A.L.R.2d 726.

Retrospective operation of legislation affecting estates by the entireties, 27 A.L.R.2d 868.

Retroactive effect of statute fixing minimum value of corporate stock shares or otherwise affecting power of corporation to change par value of existing shares, 54 A.L.R.2d 1289.

Effect of simultaneous repeal and re-enactment of all, or part, of legislative Act, 77 A.L.R.2d 336.

Retroactive effect of statute which imposes, removes, or changes a monetary limitation of recovery for personal injury or death, 98 A.L.R.2d 1105.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.

Retroactive effect of zoning regulation, in absence of saving clause, on validly issued building permit, 49 A.L.R.3d 13.

Zoning provisions protecting land owner who applies for or received building permit prior to change in zoning, 49 A.L.R.3d 1150.

Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway, 81 A.L.R.3d 564.

Validity of statutory classifications based on population - tax statutes, 98 A.L.R.3d 1083.

Validity, construction, and application of § 504 of Labor-Management Reporting and Disclosure Act (29 USCS § 504), precluding certain convicted persons from serving in union office for specified period, 98 A.L.R. Fed. 481.

Construction and application of U.S. Const. Art. I, § 9, cl. 3, proscribing federal bills of attainder, 62 A.L.R. 6th 517.