Kreps v. Gray

218 S.E.2d 1, 234 Ga. 745, 1975 Ga. LEXIS 1245

• Court: Supreme Court of Georgia
• Decided: June 20, 1975
• Docket: 29813
• Status: Published

Opinions

Jordan, Justice.

Warden D. C. Kreps appeals from an adverse judgment on a petition for a writ of habeas corpus, filed by appellee Gray, in DeKalb Superior Court.

On April 5,1974, after pleading guilty to a charge of aggravated assault, Gray was sentenced to three years imprisonment. The sentence was probated on condition that Gray not violate the criminal laws of any governmental unit.

On April 29, 1974, it was alleged that Gray had violated the law by pulling a knife on his wife while she was awaiting a hearing in court, and forcing her to leave with him. Gray was subsequently ordered to show cause why his probation should not be revoked.

At a hearing on May 2, 1974, Gray’s probation was revoked, and he was sent to the DeKalb County correctional authorities.

Gray then filed a petition for habeas corpus relief in the DeKalb Superior Court. At the habeas hearing Gray alleged that there had been insufficient evidence to support the revocation and testified that he had not been informed of his right to appeal from that judgment.

On January 17, 1975, the habeas judge, after conducting a full evidentiary hearing, found that the revocation was not supported by the evidence. Pursuant to its findings, the habeas court ordered that Gray be released from custody and remanded to the probation authorities of Carroll County. Gray made bail pending appeal and Warden Kreps, through the Attorney General’s office, appealed to this court.

Appellant contends on appeal that the habeas court erred by inquiring into the sufficiency of the evidence presented at the hearing on revocation of probation and further that if this was not error the habeas court had used an improper standard to judge said evidence. We agree with appellant’s first contention and reverse the judgment of the habeas court. A review of the sufficiency of the evidence, using any standard, is not the proper function of a habeas corpus court. Nelson v. Smith, 228 Ga. 117 (184 SE2d 150); Coleman v. Caldwell, 229 Ga. 656 (193 SE2d 846).

After determining that the habeas court erred in reviewing the sufficiency of the evidence, we are left with appellee’s contention that he was not informed of his right to appeal the probation revocation. The appellant contends that since appellee had retained counsel at the probation revocation hearing the burden was on appellee to inform some officer of the court that he was indigent and that he desired to appeal the judgment, relying on Thornton v. Ault, 233 Ga. 172 (210 SE2d 683). This reliance is misplaced. In Thornton, supra, appellant’s counsel was appointed.

Argued April 15, 1975 Decided June 20, 1975 Rehearing denied July 10, 1975. Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for appellant. Grubbs, Platt & Kearns, J. M. Grubbs, Jr., Adele Platt, for appellee.

The right to appeal an adverse judgment is indeed a hollow one if the one to whom the right accrues is not informed of its existence. A failure to inform a defendant of his right to appeal would constitute ineffective assistance of counsel and whether said counsel was appointed or retained should make no difference with regard to this basic right. McAuliffe v. Rutledge, 231 Ga. 745 (204 SE2d 141).

We therefore reverse the judgment of the habeas court dealing with the sufficiency of the evidence to support the probation revocation, and remand the case for a determination as to whether Gray knew of his right to appeal. If it is found that he did not have such knowledge the habeas court is directed to authorize Gray an out of time appeal on the revocation proceeding.

Judgment reversed and remanded with direction.

All the Justices concur, except Nichols, C. J., Gunter and Hill, JJ., who concur specially, and Undercofler, P. J., Ingram and Hall, JJ., who dissent.