Eugenio Hervey v. State

• Court: Court of Appeals of Georgia
• Decided: October 20, 2017
• Docket: A17A0690
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 18, 2017

The Court of Appeals hereby passes the following order:

A17A0690. HERVEY v. THE STATE.

Eugenio Hervey appeals from his conviction of two counts of aggravated stalking against his ex-wife. One count accused him of contacting the victim by serving her, through a sheriff’s deputy, with a pro-se motion for contempt based on her alleged violation of their divorce settlement agreement. On appeal, Hervey argues that the stalking statute, OCGA § 16-5-90, is unconstitutional as applied to him because it infringes on his constitutional right to access the courts by subjecting him to a criminal penalty for filing the pro-se contempt motion. See, e.g., Smith v. Baptiste, 287 Ga. 23, 24 (1) (694 SE2d 83) (2010) (recognizing the right, under the Georgia Constitution, to choose between self-representation or representation by counsel in state courts, notwithstanding the lack of express right of access to state courts in the Georgia Constitution.) The Supreme Court of Georgia “has exclusive jurisdiction over all cases involving construction of the Constitution of the State of Georgia and of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question.” Atlanta Independent School System v. Lane, 266 Ga. 657, 657 (1) (469 SE2d 22) (1996); see Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); Yelverton v. State of Georgia, 300 Ga. 312, 312 n.1 (794 SE2d 613) (2016) (exercising appellate jurisdiction in a case challenging the constitutionality of a statute as applied to the defendant). Because Hervey’s defense called into question the constitutionality of OCGA § 16-5-90 as applied to him and the trial court rejected his constitutionality argument, it appears that jurisdiction may lie in the Supreme Court. As the Supreme Court has the ultimate responsibility for determining appellate jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 SE2d 587) (1996), the case is hereby TRANSFERRED to the Supreme Court.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/18/2017 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.