Bunn v. Burden

228 S.E.2d 830, 237 Ga. 439, 1976 Ga. LEXIS 1258

Opinions

Undercofler, Presiding Justice.

This is a habeas corpus seeking to set aside a sentence of two years probation and a $2,000 fine on a nolo contendere plea for possessing phencyclidine. Appellant was indicted and sentenced under Code Ann. § 79A-903 (b) (4) prior to that section being held unconstitutional by this court in Sundberg v. State, 234 Ga. 482 (216 SE2d 332) (1975). The trial court held the Sundberg decision was not retroactive and dismissed the petition. We reverse. "A criminal indictment and subsequent conviction thereof based upon a void statute is nugatory, without any force or effect and should be dismissed.” Cadle v. State, 136 Ga. App. 232 (2) (221 SE2d 59) (1975). Habeas corpus is not an available remedy for the recovery of a fine. Code Ann. §§ 50-101, 50-127 (1).

Judgment reversed.

All the Justices concur, except Jordan, Ingram and Hill, J J., who concur specially.