In Re Prisoners Awaiting Transfer

224 S.E.2d 905, 236 Ga. 516, 1976 Ga. LEXIS 921

• Court: Supreme Court of Georgia
• Decided: March 16, 1976
• Docket: 30665
• Status: Published

Opinions

Jordan, Justice.

The State Board of Corrections, Allen L. Ault, as Director of Corrections, and the Department of Offender Rehabilitation appeal from an order entered by Judge George A. Horkan, Jr., of the Southern Judicial Circuit, on his own motion.

The order appealed from states in "Whereas” clauses that the Director of Corrections and the Department of Offender Rehabilitation are not obtaining prisoners from the Colquitt County Jail within a reasonable time and that some prisoners have been waiting for as long as from four to six months, after sentence, before being taken into the state penal system. After other "findings,” the court orders, that male prisoners receiving a penitentiary sentence be immediately transferred from Colquitt County Jail to the Colquitt County Correctional Institution where they are to be treated as state prisoners. The court further orders that the Department of Offender Rehabilitation is to pick up and assign prisoners from Colquitt County Correctional Institution within a reasonable time or pay and reimburse Colquitt County for the state prisoners incarcerated at the county institution at a per diem rate provided by law for the keeping of state prisoners as if they had been assigned to Colquitt County Correctional Institution by the Department of Offender Rehabilitation. The order then states that failure to do as the order provides will subject the offender or offenders to punishment for contempt.

1. "A judgment rendered sua sponte by the superior court which mandates actions and which, if valid, would authorize the court to hold the persons named in such judgment in contempt of court is an appealable judgment.” Darden v. Ravan, 232 Ga. 756, 758 (208 SE2d 846) (1974); Potts v. State, 236 Ga. 230 (1976).

2. Where any person is sentenced to serve time in a penal institution in this state, he is committed to the custody , of the Director of Corrections, who, with the approval of the State Board of Corrections, shall designate the place of confinement where the sentence shall be served. Code Ann. § 77-309 (b) (Ga. L. 1956, pp. 161, 171; 1964, pp. 489, 490; 1968, p. 1399; 1969, p. 602; 1971, pp. 435, 436; 1972, p. 582; 1973, pp. 1297, 1298; 1973, p. 1299). Upon the imposition of such a sentence, and after all appeals or other motions have been disposed of so that the conviction has become final, the clerk of the court shall immediately notify the Director of Corrections of the sentence, and provide a history of the person sentenced. Code Ann. § 77-309 (c). Within a reasonable time thereafter, the Director of Corrections shall assign such prisoner to a correctional institution designated by him. Code Ann. § 77-309 (d).

The order entered by the superior court judge under consideration here assigns male prisoners sentenced in Colquitt Superior Court to the Colquitt County Correctional Institution, not as prisoners awaiting assignment by the state correctional authorities, but as "State prisoners.” It requires the Department of Offender Rehabilitation to remove and assign such prisoners within a reasonable time, or to reimburse Colquitt County for their maintenance at the same per diem rate as if the Department had assigned them to the Institution.

A superior court judge is without jurisdiction to perform the duties imposed by law on state correctional authorities. Inasmuch as this order assigns prisoners as state prisoners to a correctional institute, it is unauthorized and void. Compare Howington v. Wilson, 213 Ga. 664 (100 SE2d 726) (1957).

No supervisory power is given to superior court judges over state correctional authorities. The portion of the order mandating action by the Department of Offender Rehabilitation, and subjecting its agents to contempt for failure to obey the order, was entered by the judge on his own motion. There was no pending action in which the Superior Court of Colquitt County had jurisdiction of the state correctional authorities, and the state authorities were given no notice or hearing. The order is completely void, and the appellants are entitled to have it so declared. Compare Coweta Bonding Co. v. Carter, 230 Ga. 585, 587 (5) (198 SE2d 281) (1973).

Judgment reversed.

All the Justices concur, except Ingram and Hall, JJ., who dissent. Argued January 14, 1976 Decided March 16, 1976. Arthur K. Bolton, Attorney General, G. Thomas Davis, Sr., Assistant Attorney General, for appellant. Moore & Chambliss, Saxby Chambliss, for appellee.