Hood v. Carsten

481 S.E.2d 525, 267 Ga. 579, 97 Fulton County D. Rep. 799, 1997 Ga. LEXIS 93

• Court: Supreme Court of Georgia
• Decided: March 7, 1997
• Docket: S96A1761
• Status: Published

Opinions

Hunstein, Justice.

Appellant Tommy Leon Hood was indicted on charges of aggravated assault and stalking. As a condition of bond, Hood was ordered to have no contact with the victim or her place of business. Less than three months after being released on bond, Hood telephoned the victim at her home insisting that she meet with him. The victim informed the district attorney’s office of the telephone call and expressed concern for her safety and that of her family. An assistant district attorney assigned to the case presented an ex parte motion to revoke bond to Judge Stark of the Gwinnett Superior Court. Judge Stark signed the order revoking bond on March 11, 1996 and scheduled a hearing on the bond revocation for March 14, 1996. On March 12, 1996, defense counsel was made aware of the order and the allegations upon which the bond revocation was based and was notified of the March 14 hearing date.

Hood appeared with counsel on March 14 for the scheduled hearing and immediately moved to recuse Judge Stark because he had signed the order revoking bond ex parte. After consideration of Hood’s motion, Judge Stark recused himself and the matter was assigned to Judge Winegarden. Appellant was taken into custody at the conclusion of the March 14 hearing. Judge Winegarden scheduled a hearing for March 27,1996 to consider Hood’s motion to rescind the order revoking bond and petition for habeas corpus relief. Following the March 27 hearing at which the court did not review the underlying merits of the order revoking bond, the trial court denied both the motion to rescind and petition for habeas corpus. Hood appeals from the denial of his petition for habeas corpus and we reverse.

Hood contends he is entitled to habeas corpus relief because Judge Stark’s order revoking bond was entered without notice or an opportunity to be heard in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. I, Par. I of the Constitution of the State of Georgia (1983). Both the Georgia and United States Constitutions prohibit the state from depriving “any person of life, liberty, or property, without due process of law.” United States Const., amend. XIV, sec. 1; see also Ga. Const., supra. “The fundamental idea of due process is notice and an opportunity to be heard. [Cit.] Due process [does not guarantee] a particular form or method of state procedure. [Cit.]” Nix v. Long Mtn. Resources, 262 Ga. 506, 509 (422 SE2d 195) (1992). Rather, as the United States Supreme Court recognized in Mathews v. Eldridge, 424 U. S. 319, 334-335 (96 SC 893, 47 LE2d 18) (1976):

“ ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” [Cit.] “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

We are unaware of and the parties have not presented any specific guidelines under Georgia law pertaining to a trial court’s power to revoke a bond.¹ It is clear that trial courts have such power and the decision to revoke the appearance bond of a person charged with stalking lies within the discretion of the trial judge. See OCGA § 17-6-1. Because a bond revocation involves the deprivation of one’s liberty, however, the trial court’s decision to revoke bond must comport with at least minimal state and federal due process requirements. Morrissey, supra at 482 (liberty of parolee, although indeterminate, is valuable and must be seen as within the protection of the Fourteenth Amendment); Fuentes v. Shevin, 407 U. S. 67, 84 (92 SC 1983, 32 LE2d 556) (1972) (due process applies where nature of the interest is within contemplation of “liberty and property” language of the Fourteenth Amendment); Zachos v. Huiet, 195 Ga. 780, 786 (2) (25 SE2d 806) (1943) (principles of due process “extend to every proceeding which may deprive a person of life, liberty, or property”); see also United States v. Delker, 757 F2d 1390, 1397 (3rd Cir. 1985) (pre-trial detention implicates liberty interest and may not be imposed contrary to mandates of due process). The amount of process required must necessarily depend on the circumstances in each case.

In addition to aggravated assault, Hood was charged under Georgia’s anti-stalking statute, OCGA § 16-5-90,² a statute enacted for the express purpose of providing additional protections to victims. See also OCGA § 16-5-93 (providing stalking victims greater rights to notification of release of person charged with stalking). In direct contravention of the trial court’s order that he not have any contact with the victim,³ Hood called the victim and demanded that she meet with him. Under such circumstances, courts must be vested with authority to act promptly to protect the victim and enforce the bond conditions imposed. At the same time, we believe the state and federal due process clauses require at a minimum that a hearing be held within a reasonable time after arrest or the filing by the State of a motion to revoke bond while information is fresh and witnesses and evidence are available. Riggins v. State 134 Ga. App. 941, 944 (216 SE2d 723) (1975) (decision to revoke appeal bond should be accompanied by at least minimal due process protections); see King v. Zimmerman, 632 FSupp. 271, 277 (E.D. Pa. 1986) (revocation of bail sua sponte, in chambers without providing notice or opportunity to be heard, is an arbitrary denial of due process); Hohman v. Hogan, 474 FSupp. 1290, 1296 (D.Vt. 1979) (defendant entitled to opportunity to present evidence in opposition to state’s motion to revoke bail).

On March 11 the trial court entered its order revoking bond. Simultaneously, the court scheduled a hearing for March 14 on the State’s motion to revoke bond and notice of the hearing was provided to Hood through his counsel. Hood was not arrested. Presumably, the March 14 hearing would have been structured to insure that the finding of a violation of a condition of bond and the exercise of the court’s discretion to revoke bond were based on verified facts and to allow Hood an opportunity to present witnesses and evidence on his behalf. Because Hood moved to recuse Judge Stark at the March 14 hearing, however, the hearing on the merits of the State’s motion to" revoke bond did hot proceed. The March 27 hearing addressed not the merits of the bond revocation but Hood’s motion to rescind the order revoking bond and his petition for habeas corpus. Accordingly, Hood remains incarcerated having had no formal bond revocation hearing, no disclosure of the evidence against him, no opportunity to present evidence or witnesses or to confront witnesses,⁴ and no written finding as to the evidence relied on by the court and reasons for revoking his bond. Under these facts, we find the trial court erred in failing to hold a hearing within a reasonable time after arrest or the filing of the State’s motion to revoke bond to determine whether his bond should be reinstated and, therefore, Hood’s petition for habeas relief should have been granted. Upon remittitur and after notice to Hood in compliance with OCGA § 17-1-1, the trial court is authorized to hold a hearing to revoke Hood’s bond should the State so move.

Our decision in this case turns on the trial court’s complete failure to provide a meaningful opportunity to be heard. We do not hold or intimate in this opinion that a court is precluded from ordering the arrest of a defendant believed to have violated a condition of bond where the arrest order is supported by the personal knowledge of the judge or by affidavit or testimony establishing a reasonable belief that a violation of a condition of bond has occurred. Nor is the State limited to moving for the revocation of bond when a defendant released on bond commits a subsequent criminal violation. The State is free to have the defendant arrested for the subsequent offense, to seek the revocation of bond for the original offense, or to pursue both courses simultaneously.

Judgment reversed.

All the Justices concur, except Carley, J., who concurs specially.

1 Uniform Superior Court Rule 27.1 et seq. authorizes the establishment of pre-trial release programs in any county and the development and promulgation of rules, regulations and procedures pertaining to conditional release under the program, including such “as pertain to the issuance of a bench warrant for the arrest of any individual released under the program who fails to comply with the conditions of the release.” Uniform Superior Court Rule 27.1 (E). The record does not indicate and the parties do not argue on this appeal that the trial court revoked bond pursuant to rules, regulations, or procedures promulgated as part of a pre-trial release program authorized by Uniform Superior Court Rule 27.1 et seq.

2 OCGA § 16-5-90 (a) provides:

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. For the purpose of this article, the term “place or places” shall include any public or private property occupied by the victim other than the residence of the defendant. For the purposes of this article, the term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.

3 OCGA § 17-6-1 (b) (3) (A) authorized the trial court in this case to impose special conditions for bond by specifically providing:

Notwithstanding any other provision of law, a judge of a court of inquiry may, as a condition of bail or other pretrial release of a person who is charged with violating Code Section 16-5-90 or 16-5-91, prohibit the defendant from entering or remaining present at the victim’s school, place of employment, or other specified places at times when the victim is present or intentionally following such person.

4 We do not decide in this appeal whether a defendant has a state constitutional right to confront all witnesses providing adverse information. See Morrissey, supra at 487 (“if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.”).