Sims v. Caldwell

202 S.E.2d 70, 231 Ga. 377, 1973 Ga. LEXIS 713

• Court: Supreme Court of Georgia
• Decided: November 2, 1973
• Docket: 28354
• Status: Published

Opinions

Jordan, Justice.

James Sims appeals an order of the Tattnall County Superior Court dated August 3, 1973, denying his application for writ of habeas corpus and remanding him to the custody of the respondent. Held:

1. We affirm. In 1960 appellant was indicted and entered a plea of guilty in Spalding Superior Court to the offenses of rape, larceny of a motor vehicle, assault with intent to murder (one victim), assault with intent to murder (another victim), robbery (of one victim), and robbery (of another victim) for an aggregate sentence of 85 years. Appellant asserts error for failure of the trial court to appoint counsel for the habeas corpus proceeding. This court has repeatedly held that application for the writ of habeas corpus is not a criminal proceeding, and that therefore there is no constitutional requirement for appointment of counsel for the petitioner. Cash v. Smith, 226 Ga. 318 (3) (175 SE2d 10); Wallace v. Ault, 229 Ga. 717 (194 SE2d 88); Wayman v. Caldwell, 229 Ga. 2 (189 SE2d 74); Moore v. Caldwell, 229 Ga. 132 (189 SE2d 396).

2. The appellant claims that the trial court erred in not granting him relief on the grounds that he was serving multiple sentences allegedly springing from a single transaction. The trial court found that all of the offenses to which appellant pled guilty in his original trial rested "on proof of critical facts different from those of all other convictions, and that none of the convictions constituted a lesser included offense of any other.” The trial judge, for these reasons, found that the sentences did not offend any provision of the Georgia or United States Constitution. This holding was not error. See Smith v. Ault, 230 Ga. 433 (197 SE2d 348); Patterson v. Caldwell, 229 Ga. 321 (191 SE2d 43).

Submitted October 15, 1973 Decided November 2, 1973. James W. Sims, pro se. Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, David J. Bailey, Assistant Attorneys General, for appellee.

3. The appellant also complained that the trial court erred in failing to grant him relief due to alleged systematic exclusion of negroes from grand jury service in 1960. This contention is also without merit. As stated earlier, appellant after indictment pled guilty to all offenses, and thereby waived any claim he might have had in regard to the composition of the grand jury that indicted him. Tollett v. Henderson, 411 U. S. 258 (93 SC 1602, 36 LE2d 235). See also Snell v. Smith, 228 Ga. 249 (184 SE2d 645).

4. An examination of the record fails to reveal that appellant was denied any of his constitutional rights.

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ, who dissent.