Tidwell v. Paxton

Supreme Court of Georgia

Tidwell v. Paxton

651 S.E.2d 714, 282 Ga. 641, 2007 Fulton County D. Rep. 3067, 2007 Ga. LEXIS 710

CourtSupreme Court of Georgia

DecidedOctober 9, 2007

DocketS07A1306

StatusPublished

Cited by1 cases

This text of 651 S.E.2d 714 (Tidwell v. Paxton) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tidwell v. Paxton, 651 S.E.2d 714, 282 Ga. 641, 2007 Fulton County D. Rep. 3067, 2007 Ga. LEXIS 710 (Ga. 2007).

Pincite

Opinion

Melton, Justice.

On February 13, 2007, Jerry Tidwell was arrested without a warrant for possession of methamphetamine with intent to distribute. On February 14,2007, Tidwell was taken for his first appearance before a magistrate judge who issued an arrest warrant for the crime and set Tidwell’s commitment hearing for March 26, 2007. On March 7, 2007, Tidwell filed a pre-trial petition for habeas corpus, arguing that he should be released from custody because he had not received a commitment hearing within 48 hours of his arrest pursuant to OCGA § 17-4-62.¹ The habeas court denied Tidwell’s petition in a written order filed on March 21, 2007, and this appeal ensued.

Tidwell’s appeal has now become moot. After this appeal was filed, Tidwell was indicted by a grand jury on May 7,2007. “[0]nce an indictment has been returned against a defendant, the question of whether a commitment hearing should have been held becomes moot.” (Citation omitted.) Ross v. Lemacks, 264 Ga. 839 (452 SE2d 109) (1995). Therefore, this appeal must be dismissed.

Although we do not reach the merits of Tidwell’s case, we note that, in making his argument to this Court, Tidwell relied on a parenthetical in a footnote in the analogous case of Boyd v. St. Lawrence, 281 Ga. 300, 301, n. 3 (637 SE2d 687) (2006), which states, in its entirety:

See Ross v. Lemacks, 264 Ga. 839 (452 SE2d 109) (1995) (although OCGA § 17-4-26² provides that a defendant must [642]*642be released from custody if not provided a commitment hearing within 72 hours of his arrest pursuant to a warrant, a defendant’s indictment moots question of whether he should have been brought before a judicial officer within 72 hours).

Decided October 9, 2007 Reconsideration denied November 5, 2007. Banks & Stubbs, Rafe Banks III, for appellant. Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, Paul J. Dzikowski, for appellee.

This parenthetical, however, is not accurate. OCGA § 17-4-26 requires that “the person arrested [be brought] before a committing judicial officer within 72 hours after arrest.” It does not require a commitment hearing within that time. In Dodson v. Grimes, 220 Ga. 269, 270 (1) (138 SE2d 311) (1964), we held that OCGA § 17-4-26

does not provide that the committing magistrate shall have a hearing within 72 hours after the arrest. The facts here show that the arresting officers did bring the petitioner before the magistrate within 72 hours after the arrest. The fact that the magistrate set the hearing more than 72 hours after the arrest did not make petitioner’s detention illegal.

To the extent that the language in footnote 3 of Boyd v. St. Lawrence conflicts with this holding, it is hereby disapproved. See also Dean v. State, 250 Ga. 77, 81 (2) (b) (295 SE2d 306) (1982) (OCGA § 17-4-62 “is satisfied where... police obtain an arrest warrant within 48 hours of a valid warrantless arrest.”).

Case dismissed.

All the Justices concur.

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Melton, Justice.

On February 13, 2007, Jerry Tidwell was arrested without a warrant for possession of methamphetamine with intent to distribute. On February 14,2007, Tidwell was taken for his first appearance before a magistrate judge who issued an arrest warrant for the crime and set Tidwell’s commitment hearing for March 26, 2007. On March 7, 2007, Tidwell filed a pre-trial petition for habeas corpus, arguing that he should be released from custody because he had not received a commitment hearing within 48 hours of his arrest pursuant to OCGA § 17-4-62.¹ The habeas court denied Tidwell’s petition in a written order filed on March 21, 2007, and this appeal ensued.

Tidwell’s appeal has now become moot. After this appeal was filed, Tidwell was indicted by a grand jury on May 7,2007. “[0]nce an indictment has been returned against a defendant, the question of whether a commitment hearing should have been held becomes moot.” (Citation omitted.) Ross v. Lemacks, 264 Ga. 839 (452 SE2d 109) (1995). Therefore, this appeal must be dismissed.

Although we do not reach the merits of Tidwell’s case, we note that, in making his argument to this Court, Tidwell relied on a parenthetical in a footnote in the analogous case of Boyd v. St. Lawrence, 281 Ga. 300, 301, n. 3 (637 SE2d 687) (2006), which states, in its entirety:

See Ross v. Lemacks, 264 Ga. 839 (452 SE2d 109) (1995) (although OCGA § 17-4-26² provides that a defendant must [642]*642be released from custody if not provided a commitment hearing within 72 hours of his arrest pursuant to a warrant, a defendant’s indictment moots question of whether he should have been brought before a judicial officer within 72 hours).

Decided October 9, 2007 Reconsideration denied November 5, 2007. Banks & Stubbs, Rafe Banks III, for appellant. Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, Paul J. Dzikowski, for appellee.

This parenthetical, however, is not accurate. OCGA § 17-4-26 requires that “the person arrested [be brought] before a committing judicial officer within 72 hours after arrest.” It does not require a commitment hearing within that time. In Dodson v. Grimes, 220 Ga. 269, 270 (1) (138 SE2d 311) (1964), we held that OCGA § 17-4-26

does not provide that the committing magistrate shall have a hearing within 72 hours after the arrest. The facts here show that the arresting officers did bring the petitioner before the magistrate within 72 hours after the arrest. The fact that the magistrate set the hearing more than 72 hours after the arrest did not make petitioner’s detention illegal.

To the extent that the language in footnote 3 of Boyd v. St. Lawrence conflicts with this holding, it is hereby disapproved. See also Dean v. State, 250 Ga. 77, 81 (2) (b) (295 SE2d 306) (1982) (OCGA § 17-4-62 “is satisfied where... police obtain an arrest warrant within 48 hours of a valid warrantless arrest.”).

Case dismissed.

All the Justices concur.

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Bluebook (online)

651 S.E.2d 714, 282 Ga. 641, 2007 Fulton County D. Rep. 3067, 2007 Ga. LEXIS 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tidwell-v-paxton-ga-2007.

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