Bunn v. Burden
228 S.E.2d 830
Ga.
1976
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31282. BUNN v. BURDEN et al.

31282

Supreme Court of Georgia

September 7, 1976

237 Ga. 439

Undercofler, Presiding Justice.

Argued July 12, 1976 — Decided September 7, 1976.

Undercofler, Presiding Justice.

This is a habeas corpus seeking to set aside a sentence of two years probation and a $2,000 fine on a nolo contendere plea for possessing phencyclidine. Appellant was indicted and sentenced under Code Ann. § 79A-903 (b) (4) prior to that section being held unconstitutional by this court in

. The trial court held the
decision was not retroactive and dismissed the petition. We reverse. “A criminal indictment and subsequent conviction thereof based upon a void statute is nugatory, without any force or effect and should be dismissed.”
. Habeas corpus is not an available remedy for the recovery of a fine. Code Ann. §§ 50-101, 50-127 (1).

Judgment reversed. All the Justices concur, except Jordan, Ingram and Hill, JJ., who concur specially.

Reber Boult, Al Horn, for appellant.

Clete D. Johnson, District Attorney, Arthur K. Bolton, Attorney General, Harrison Kohler, Staff Assistant Attorney General, for appellees.

Hill, Justice, concurring specially.

I dissented in

. Nevertheless, in
a majority of this court held Code Ann. § 79A-903 (b) (4) to be unconstitutional and that is the law. The correctness of
is not in issue here. The issue here is whether a decision of this court, holding a section of our Code to be unconstitutional, shall be given retroactive effect in favor of a defendant who was indicted, tried and sentenced under an unconstitutional provision of law. I agree with the majority that a person cannot be held in prison pursuant to a sentence imposed under an unconstitutional law and I therefore concur in the judgment.

I am authorized to state that Justice Jordan and Justice Ingram join in this special concurrence.

31283. MOTES v. STANTON.

31283

Supreme Court of Georgia

September 7, 1976

237 Ga. 440

Ingram, Justice.

Ingram, Justice.

This is an appeal by the mother from an order of the Superior Court of Newton County which denied her petition for a change in custody of her minor child. The change in custody sought by the mother was based upon an alleged change of circumstances affecting the welfare of the child since August, 1975, when the father was awarded permanent custody of the child in a divorce decree. We reverse.

In the initial custody award, the mother was given the right to visit the child on alternate weekends between the hours of 5:00 p.m. on Friday and 8:00 p.m. on Sunday. After a hearing in the present case, the trial judge ordered that custody remain in the father but substantially modified the mother‘s visitation rights. As modified, Mrs. Motes’ visitation rights extend each week from Sunday at 6:00 p.m. to Friday at 5:00 p.m., provided, however, that if the father does not call for the child by 8:00 p.m. on Friday, the visitation shall continue until the next Friday at 5:00 p.m. The order also provided that the father pay $20 per week toward the cost of nursery school for the child.

The mother enumerates six errors, but only one of them is reached in this appeal — failure of the trial court to make findings of fact to support its decision. Section 52 of the Civil Practice Act (Code Ann. § 81A-152 (a)) (Rev. 1972), requires that the record of contested custody actions tried without a jury contain “findings of fact.” The parties may waive this requirement if it is done in writing. The father, relying on

, argues that counsel for the mother waived this requirement by signing the present order. We do not agree. In
, the judgment was approved in writing “as to form.” There was no such approval in this case. We do not think that a mere signature, without any language or recital to indicate intention, constitutes a waiver of the requirement of Code § 81A-152 (a).