Charlie H. Scarbrough v. A. L. Dutton, Warden, Georgia State Prison, Reidsville, Georgia

Fifth Circuit

Charlie H. Scarbrough v. A. L. Dutton, Warden, Georgia State Prison, Reidsville, Georgia

393 F.2d 6, 1968 U.S. App. LEXIS 7264

Court of Appeals for the Fifth Circuit·Decided April 18, 1968·No. 24740·Published·Cited by 28 cases

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PER CURIAM:

Appellant is now serving a life sentence for murder in the Georgia State Penitentiary. After a full evidentiary hearing in the Federal Court on the disputed fact issues his petition for a writ of habeas corpus was denied by the District Judge. Cf. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Appellant presents two points of error, both of which we find to be without merit, and we therefore affirm the decision of the District Court.

Appellant initially contends that he was denied due process of law because he was incarcerated for seven months prior to trial without ever having had a preliminary hearing. In Georgia, the only purpose of a preliminary hearing is to determine whether probable [7]*7cause exists to hold a person for trial. This hearing in Georgia, as in most other states, is not per se a critical stage of a criminal proceeding. See Moore v. State, 113 Ga.App. 738, 149 S.E.2d 492. An accused is not required at this hearing to make any pleas or raise any defenses and no rights may be lost which would prejudice his defense at a later trial. In fact, Appellant does not contend here that any rights were lost by him because of a failure to have a preliminary hearing. Cf. Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The failure to hold a preliminary hearing, without more, does not amount to a violation of constitutional rights which would vitiate the subsequent conviction. See Graves v. Eyman, 9 Cir., 1967, 373 F.2d 324; Chester v. People of State of California, 9 Cir., 1966, 355 F.2d 778; Pappillion v. Beto, S.D.Tex., 1966, 257 F.Supp. 502; cf. Hamilton v. State of Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Also, Appellant had counsel for at least three months before trial and there is no contention that his attorney did not do everything necessary to secure a fair trial.

Appellant also contends that he was sentenced before the jury returned its verdict. The Trial Judge found as a fact that this was not true and the evidence supports this finding. See Phillips v. Dutton, 5 Cir., 1967, 378 F.2d 898; Williams v. Beto, 5 Cir., 1965, 354 F.2d 698; Post v. Boles, 4 Cir., 1964, 332 F.2d 738, cert. denied, 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274.

Affirmed.

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PER CURIAM:

Appellant is now serving a life sentence for murder in the Georgia State Penitentiary. After a full evidentiary hearing in the Federal Court on the disputed fact issues his petition for a writ of habeas corpus was denied by the District Judge. Cf. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Appellant presents two points of error, both of which we find to be without merit, and we therefore affirm the decision of the District Court.

Appellant initially contends that he was denied due process of law because he was incarcerated for seven months prior to trial without ever having had a preliminary hearing. In Georgia, the only purpose of a preliminary hearing is to determine whether probable [7]*7cause exists to hold a person for trial. This hearing in Georgia, as in most other states, is not per se a critical stage of a criminal proceeding. See Moore v. State, 113 Ga.App. 738, 149 S.E.2d 492. An accused is not required at this hearing to make any pleas or raise any defenses and no rights may be lost which would prejudice his defense at a later trial. In fact, Appellant does not contend here that any rights were lost by him because of a failure to have a preliminary hearing. Cf. Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The failure to hold a preliminary hearing, without more, does not amount to a violation of constitutional rights which would vitiate the subsequent conviction. See Graves v. Eyman, 9 Cir., 1967, 373 F.2d 324; Chester v. People of State of California, 9 Cir., 1966, 355 F.2d 778; Pappillion v. Beto, S.D.Tex., 1966, 257 F.Supp. 502; cf. Hamilton v. State of Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Also, Appellant had counsel for at least three months before trial and there is no contention that his attorney did not do everything necessary to secure a fair trial.

Appellant also contends that he was sentenced before the jury returned its verdict. The Trial Judge found as a fact that this was not true and the evidence supports this finding. See Phillips v. Dutton, 5 Cir., 1967, 378 F.2d 898; Williams v. Beto, 5 Cir., 1965, 354 F.2d 698; Post v. Boles, 4 Cir., 1964, 332 F.2d 738, cert. denied, 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274.

Affirmed.

Charlie H. Scarbrough v. A. L. Dutton, Warden, Georgia State Prison, Reidsville, Georgia, 393 F.2d 6, 1968 U.S. App. LEXIS 7264 (5th Cir. 1968).

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393 F.2d 6 (Charlie H. Scarbrough v. A. L. Dutton, Warden, Georgia State Prison, Reidsville, Georgia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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