Harper v. StateHarper v. State
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- Before:
- Johnson
Lead Opinion
The appellant was charged in a single indictment with armed robbery and several other offenses. At the time of his arraignment he *776filed a demand for trial “within the next succeeding term . . . under
Under
Although
While it is well settled by the foregoing cases that armed robbery *777is still a “capital offense” within the purview of
The appellant contends that to interpret armed robbery as a capital offense for some purposes but not others is so arbitrary, capricious and irrational as to violate due process and equal protection of the law. While we must concede that the decisions on this issue do not seem to be joined by any consistent thread of logic, the fact remains that armed robbery continues to be classified under statutory law as a capital offense, and it is clearly within the province of the legislature to determine that this offense is more serious than other crimes, such as feticide (
“State legislation is constitutional with respect to due process if it bears a rational relation to a proper and constitutionally permitted legislative purpose.” Department of Nat. Resources v. Union Timber Corp., 258 Ga. 873, 876 (4) (375 SE2d 856) (1989). Similarly, “[w]hen assessing equal protection challenges, . . . [i]f neither a suspect class nor a fundamental right is affected by the statute, the statute need only bear a rational relationship to some legitimate state purpose.” Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555) (1989). We conclude that the appellant’s constitutional rights to due process and equal protection of the law were not violated by the application of
Judgment affirmed.
Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope and Andrews, JJ., concur. Beasley and Cooper, JJ., dissent.
Dissenting Opinion
dissenting.
I respectfully dissent because the appellant was entitled to discharge and acquittal under
A crime is either a capital offense in this state or it is not. It cannot be both. It is too serious a distinction to apply to a particular crime when a procedural rule is at issue and not apply when sentencing is at issue. Defendants, their counsel, the bench and bar, and the general public must know. The lengthier period for the State to prepare for trial following an accused’s demand for trial which is allowed by
At that time the Georgia Constitution conferred jurisdiction on that Court “in all cases of conviction of a capital felony.” 1976
In determining whether the crime of armed robbery was “a capital felony,” the Court in Collins applied the definition first set out in Caesar v. State, 127 Ga. 710, 712 (1) (57 SE 66) (1906): “In our view the expression ‘capital felony,’ when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same.” Thus the Court recognized that the judicial construction of the Eighth Amendment in effect emasculated the words “by death” from
Thus, the very essence of the meaning of “capital offense,” which refers to the maximum penalty imposable under law, was eliminated as a characteristic or consequence of armed robbery. The Supreme Court so stated in Peek v. State, 239 Ga. 422, 432 (III (2)) (238 SE2d 12) (1977): “[T]he death penalty can no longer be given for armed robbery. . . .” In Peek it did no more than retain the “practice of recognizing armed robbery as a capital offense under the aggravating-circumstance provision of the Code [§ 27-2534.1 (b), now
If the same definition from Caesar as was applied in Collins is applied here, where another procedural matter is at issue,1 it will lead to the same result. Armed robbery is a crime in “that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same,” Caeser, supra at 712, under present Georgia statutes and constitutional law. It is that portion of Caeser which was emphasized by the Supreme Court, which did not regard the “affixed” language of Caeser even worthy of mention. Of course, at the time of the decision in Caeser, the legislatively-provided death penalty was legal.
Cleary v. State, 258 Ga. 203 (366 SE2d 677) (1988), does not require a different result. Defendants were charged with both capital and non-capital felonies, including among them armed robbery, and the question was whether
The Supreme Court overruled Rowe to the extent that its holding in Cleary conflicted. The holding in Cleary is that “where a multicount indictment includes both capital and noncapital offenses, the time for trial upon a proper demand by a defendant is the time allowed under
The Supreme Court decided Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976), an armed robbery case, before it stated in Collins that “armed robbery alone does not warrant the death penalty” and “the death penalty may not be imposed for [armed robbery] under present Georgia Statutes.” Collins, supra at 402. It concluded that the rationale of Coker v. Georgia, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977), mandated this result. It is true that at the time of Letbedder v. State, 129 Ga. App. 196 (199 SE2d 270) (1973), cert. denied, 414 U. S. 1134 (94 SC 877, 38 LE2d 759) (1974), which the Court applied in Orvis, the death penalty for armed robbery was statutorily authorized but not imposable constitutionally by virtue of Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972). The crucial difference now is that in the interim, the Georgia Supreme Court decided in Collins that the death penalty could not be imposed in Georgia under Georgia statutes. Letbedder was called for trial on February 23, 1973, before the post-Furman procedure for imposition of the death penalty went into effect. Ga. L. 1973, pp. 159, 172. The death penalty was still statutorily authorized but was procedurally infirm, according to Furman. Now it is not procedurally infirm, but the Supreme Court has made it substantively unavailable in Collins, as a matter of Georgia law. See also Peek, supra, and the two cases referred to in Peek, supra at 432.
This court has applied that Collins ruling. It has interpreted Collins as establishing the rule that “[f]or the purpose of imposition of punishment” armed robbery “is not a capital felony.” Davis v. State, 159 Ga. App. 356, 361 (4) (283 SE2d 286) (1981). See also Scott v. State, 172 Ga. App. 725, 728 (5) (324 SE2d 565) (1984). The court in Scott also followed Ivory v. State, 160 Ga. App. 193, 195 (286 SE2d 435) (1981), for the proposition that “ ‘if death is not a possible sentence, insofar as punishment is concerned, the offense cannot be capital, and a defendant charged with armed robbery may be indicted as a recidivist. . . .’ ” Scott, supra at 728. Those three cases involved the substantive matter of punishment, and specifically the recidivist enhancement of punishment for armed robbery under the general recidivist statute,
In Garmon v. Johnson, 243 Ga. 855 (257 SE2d 276) (1979), the Supreme Court considered the procedural rule allowing waiver of indictment and proceeding on accusation. According to
Since, under current Georgia law, armed robbery is not a “capital offense” for the specific purposes heretofore litigated, except for Supreme Court jurisdiction and language-wise as a species of a historic term used generically, it is not a capital offense covered by
Notes
That is to say, the question of which appellate court had jurisdiction and the question of whether the State has two terms or three terms to try a criminal defendant are both procedural rather than substantive aspects. The question of what punishment is authorized would be a substantive aspect.