Benson v. York

272 S.E.2d 706, 246 Ga. 751, 1980 Ga. LEXIS 1258

• Court: Supreme Court of Georgia
• Decided: November 25, 1980
• Docket: 36794
• Status: Published

Opinion

Jordan, Presiding Justice.

Charles E. Benson was convicted of Theft by Taking in June, 1978, and sentenced to ten years, eight to be served with two years on probation. His conviction was affirmed on appeal (Benson v. State, 150 Ga. App. 569 (258 SE2d 156) (1979)). Subsequent thereto he filed a petition for Writ of Habeas Corpus in Morgan Superior Court which apparently is still pending. Subsequent thereto he was transferred to a Spalding County institution where he filed another petition for Writ of Habeas Corpus. That petition was denied on July 6, 1979, because a “writ of habeas, corpus is not the proper procedure for attacking the treatment, discipline or the conditions of confinement being imposed...” Another petition for habeas corpus was filed on November 28, 1979. On December 21, 1979, the trial court issued its order denying the writ for failure to comply with Code § 50-127 (2), in that the petition failed to have attached thereto affidavits, certified record or other evidence supporting the allegations as set forth in the petition.

On February 6, 1980, appellant filed an application for appeal which this court granted on September 2, 1980. No brief or enumeration of errors were timely filed and this court issued its order on October 9,1980, requiring the appellant to file an enumeration of errors and brief no later than October 16,1980. Appellant has failed to comply with this order.

Justice Ingram, speaking for the court in Henry v. Hopper, 235 Ga. 196 (219 SE2d 119) (1975), a habeas corpus case, said: “The able and articulate counsel representing appellant suggests in a supplemental brief that the law should favor a plenary appellate review of these convictions. There is an automatic appellate review provided by statute in death sentence cases but not otherwise, and our duty compels an aversion to an avuncular attitude inconsistent with the law which must be enforced as written.”

Appeal in habeas corpus cases shall be governed by the Appellate Practice Act of 1965 (Code Ann. § 6-701 et seq.). Accordingly, this appeal is dismissed pursuant to Rule 39 of this court.

Submitted October 24, 1980 Decided November 25, 1980. Charles E. Benson, pro se. Arthur K. Bolton, Attorney General, for appellees.

Appeal dismissed.

All the Justices concur.