Fortson v. HopperFortson v. Hopper
- Reporters:
- , ,
- Before:
- Marshall
This is a habeas corpus appeal. The petitioner is presently serving five concurrent 20-year sentences for burglary based upon guilty pleas, and sentences of 20 years, 10 years and life for burglary, aggravated assault and rape, respectively, based upon pleas of nolo contendere. The ground of his petition is that his life sentence for rape must be set aside because it was imposed on a plea of nolo contendere, in contravention of Code Ann. § 27-1408 (Ga. L. 1946, p. 142), which provides, “The defendant in all criminal cases
other than capital felonies,
in any court of this State, whether the offense charged
It is clear from the unambiguous provisions of Code Ann. § 27-1408, supra, that the entry of pleas of nolo contendere in capital felony cases is not authorized. It is also clear that rape was a capital felony when the plea of nolo contendere was entered thereto in this case on October 8, 1975. 1 What is not so clear is whether the sentence imposed on an unauthorized nolo contendere plea to a capital felony can be collaterally attacked and set aside by habeas corpus, an issue of first impression in this state.
To aid in understanding the legal effects of the entry of the plea of nolo contendere, we quote from 7 EGL 275, Criminal Procedure, § 44 (1976 Rev.), with footnotes in brackets: “Entering a plea of nolo contendere is a privilege rather than a right; it constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant.
“The plea of nolo contendere is defined as an assertion by the defendant that he does not desire to contest the truth of the charges against him. [Black’s, Law Dictionary (Rev. 4th ed. 1958).] Thus it is not a plea of not guilty, nor is it a plea of guilty. Rather, it lies approximately midway between the two extremes.
“When the judge accepts the plea of nolo contendere, he is empowered to impose whatever sentence is provided by law for the crime, just as if the defendant had been convicted by a jury or entered a plea of guilty. [Ga. Code Ann., § 27-1409;
Marshall v. State,
128 Ga. App. 413, 197 SE2d 161 (1973).] However, in contemplation of law, the beneficent features of the plea lie in the fact that it cannot be used as an admission of guilt in any other proceeding, and cannot work any civil disqualifications to hold public office, to vote, to serve upon a jury, or any other civil disqualification imposed upon a person convicted of a crime. [
Thus it appears that the petitioner has been accorded an unmerited privilege with beneficent results. We do not now have for decision the question of whether the petitioner will in the future be entitled to receive the beneficent effects of his erroneously entered plea of nolo contendere. Regarding the sentence, which is here sought to be set aside, the judge was empowered to impose whatever sentence is provided by law, whether the sentence be based on the plea of nolo contendere, or on a conviction or plea of guilty. Code Ann. § 27-1409, supra;
Marshall v. State,
128 Ga. App. 413, supra. Because the petitioner was subject to the trial court’s jurisdiction, such cases as
Webb v. Henlery,
209 Ga. 447 (74 SE2d 7) (1953)
Therefore, the unauthorized entry of the nolo contendere plea was harmless error. Moreover, even if it be considered harmful error, it was induced error, which cannot be the basis for reversal. Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975) and cits.
The holding herein is in accord with foreign case law. See North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970); Bruno v. Cook, 224 S2d 567 (Miss. 1969); Smith v. State, 197 S2d 497 (Fla. 1967); Peel v. State, 210 S2d 14 (Fla. 1968), cert. den., 394 U. S. 939 (1969).
Judgment affirmed.
All the Justices concur.
Notes
The question as to whether rape where the death of the victim does not occur continues to be a capital felony for purposes of