142 Ga. App. 802 | Ga. Ct. App. | 1977
1. The Supreme Court granted certiorari in this case
The Supreme Court reversed this court, determining that we had "refused” to apply the doctrine of stare deci
This doctrine, which the Supreme Court apparently was groping to express, was succinctly explained by the United States Supreme Court in a recent decision involving transportation of obscene materials prior to that court’s opinion in Miller v. California, 413 U. S. 15 (93 SC 2607, 37 LE2d 419) (1973): "The Ex Post Facto Clause is a limitation upon the powers of the legislature, see Calder v. Bull, 3 Dall. 386 (1 LE 648) (1798), and does not of its own force apply to the Judicial Branch of Government. Frank v. Mangum, 237 U. S. 309, 344 (59 LE 969, 35 SC 582) (1915). But the principle on which the clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U. S. 612, 617 (98 LE 989, 74 SC 808) (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (83 LE 888, 59 SC 618) (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” Marks v. United States, — U. S. — (97 SC 990, 992, 51 LE2d 260) (1977).
2. In its per curiam decision a minority of three Justices adopted the holding of Cross v. State, 128 Ga.
Because Mitchell was entitled to rely on the previous Cross construction of the statute, the trial court erred in concluding that the affidavits upon which the search warrant for the tape recordings was issued showed on their faces that Code Ann. § 26-3001 had been violated, or that probable cause for issuance of a search warrant existed on October 17,1975. That part of the judgment so holding is accordingly reversed. Like conduct subsequent to the date of this decision, however, will be grounds for criminal prosecution under Code Ann. § 26-3001 (a).
Judgment reversed in the cross appeal.
Mitchell v. State, 239 Ga. 3 (1977).
But see Hall v. Hopper, 234 Ga. 625, 631 (216 SE2d 839) (1975).
Marks was decided March 1, 1977, subsequent to our opinion in the instant case where motion for rehearing was denied on October 18, 1976. The final Supreme Court opinion was entered on May 12, 1977, vacating its first judgment of April 5, 1977, on motion for rehearing.