Whippler v. Caldwell

Supreme Court of Georgia

Whippler v. Caldwell

200 S.E.2d 144, 231 Ga. 41, 1973 Ga. LEXIS 586

CourtSupreme Court of Georgia

DecidedSeptember 6, 1973

Docket28120

StatusPublished

Cited by2 cases

This text of 200 S.E.2d 144 (Whippler v. Caldwell) 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

Whippler v. Caldwell, 200 S.E.2d 144, 231 Ga. 41, 1973 Ga. LEXIS 586 (Ga. 1973).

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Opinions

Jordan, Justice.

Ernest Whippier appeals an order of Tattnall Superior Court dated April 15, 1973, denying his application for a writ of habeas corpus and remanding him to the custody of the respondent. Held:

1. We affirm. The appellant was convicted of murder by a jury in Bibb Superior Court on December 7, 1960. This sentence was later vacated by the United States Court of Appeals for the Fifth Circuit in 1968 because of improper method for selection of jurors. Whippier v. Dutton, 391 F2d 425 (5th Cir. 1968). On November 8, 1968, appellant plead guilty to a new indictment for the same murder for which he had previously been convicted and was sentenced to life imprisonment. Appellant’s only contention in his petition for habeas corpus was that he should be given "credit” for the time he was incarcerated because of his 1960 murder conviction. At no place in the record does it appear that the appellant contested the legality or validity of the life sentence he is presently serving. The Georgia Habeas Corpus Act provides in part that: "Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia may institute a proceeding under this section.” Ga. L. 1967, pp. 835, 836 (Code Ann. § 50-127 (1)). It appears that the only reason for appellant’s [42]*42petition is to have the time he served under his 1960 conviction credited to him for consideration by the Pardons and Paroles Board. We decided in Davis v. Caldwell, 229 Ga. 605 (193 SE2d 617) that: "A court on habeas corpus has no authority to control or in any manner interfere with the functions of the executive department in issuing pardons or paroles. These are discretionary matters and habeas corpus does not lie to control the exercise of that discretion.”

Submitted July 27, 1973 Decided September 6, 1973. Ernest Whippier, pro se. Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Daniel I. Maclntrye, Assistant Attorneys General, for appellee.

2. We have carefully reviewed the record in this case and hold that appellant’s claim was not a proper one for habeas corpus relief, that his rights under the Fifth Amendment (double jeopardy) were not violated and therefore the trial court did not err in remanding the appellant to the custody of the warden.

Judgment affirmed.

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

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Jordan, Justice.

Ernest Whippier appeals an order of Tattnall Superior Court dated April 15, 1973, denying his application for a writ of habeas corpus and remanding him to the custody of the respondent. Held:

1. We affirm. The appellant was convicted of murder by a jury in Bibb Superior Court on December 7, 1960. This sentence was later vacated by the United States Court of Appeals for the Fifth Circuit in 1968 because of improper method for selection of jurors. Whippier v. Dutton, 391 F2d 425 (5th Cir. 1968). On November 8, 1968, appellant plead guilty to a new indictment for the same murder for which he had previously been convicted and was sentenced to life imprisonment. Appellant’s only contention in his petition for habeas corpus was that he should be given "credit” for the time he was incarcerated because of his 1960 murder conviction. At no place in the record does it appear that the appellant contested the legality or validity of the life sentence he is presently serving. The Georgia Habeas Corpus Act provides in part that: "Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia may institute a proceeding under this section.” Ga. L. 1967, pp. 835, 836 (Code Ann. § 50-127 (1)). It appears that the only reason for appellant’s [42]*42petition is to have the time he served under his 1960 conviction credited to him for consideration by the Pardons and Paroles Board. We decided in Davis v. Caldwell, 229 Ga. 605 (193 SE2d 617) that: "A court on habeas corpus has no authority to control or in any manner interfere with the functions of the executive department in issuing pardons or paroles. These are discretionary matters and habeas corpus does not lie to control the exercise of that discretion.”

Submitted July 27, 1973 Decided September 6, 1973. Ernest Whippier, pro se. Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Daniel I. Maclntrye, Assistant Attorneys General, for appellee.

2. We have carefully reviewed the record in this case and hold that appellant’s claim was not a proper one for habeas corpus relief, that his rights under the Fifth Amendment (double jeopardy) were not violated and therefore the trial court did not err in remanding the appellant to the custody of the warden.

Judgment affirmed.

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

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200 S.E.2d 144, 231 Ga. 41, 1973 Ga. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whippler-v-caldwell-ga-1973.

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