Johnson v. Hopper

219 S.E.2d 577, 235 Ga. 191, 1975 Ga. LEXIS 817

Opinion

Ingram, Justice.

This is a habeas corpus case, in which a notice of appeal was filed in the trial court on April 16, 1975, appealing from a final order entered in the trial court on April 9,1975, which denied relief to appellant. The record and appeal were filed in this court on May 22, 1975, and the case was submitted to this court for decision on July 8, 1975.

The trial court denied the petition for habeas corpus, without a hearing, for failure to state a claim for relief as it appeared to the trial court that petitioner sought relief solely on the ground that his prior conviction was not supported by legally sufficient evidence. The record before this court indicates that petitioner also attacked the legal sufficiency of the indictment under which he was convicted. It does not appear that the trial court considered this ground for relief urged by appellant and there is no copy of the indictment in the present record.

Under these circumstances, judgment of the trial court will be vacated and the case will be remanded for a hearing on whether the indictment, under which appellant was convicted, sufficiently alleges a crime under the laws of the state. See Bass v. Ault, 229 Ga. 309 (191 SE2d 73).

Judgment vacated and remanded.

All the Justices concur.