*1 Stеphanie O’Melveny Myers, Kanwit, Miller, Julie W. S. Robert Eccles, Hacker, D. curiae. N. Jonathan amici
S06A0035. MOSELEY v. SENTENCE REVIEW PANEL et al. Justice. Carley, prosecution precipitated by
This case was Sandra Widner possession during for murder and of a firearm of a commission Moseley, Attorney J. crime. Brown who was District of the South Gеorgia plea agreement time, Judicial at a Circuit entered into agreement, pled guilty with Ms. Widner. Pursuant to that she to voluntary manslaughter exchange 15-year for a sentence. There- Georgia after, Ms. a Widner filed with the Sentence Review (Panel) sought Panel ing and a reduction in her sentence. Notwithstand- plea bargain Moseley, her Panel reduced her to sentence years. eight
Moseley brought
Panel,
this action
its
members
injunctive
grava-
officials,
other
mandamus
relief. The
men
was the
theof
Panel’s author-
ity
imposed
to review and reduce sentences
on certain criminal
(a).
defendants
courts of this state. See OCGA 17-10-6
conducting hearing,
granted
After
a
trial
Panel’s motion
concluding
standing
dismiss,
to
because,
lacked
capacity
attorney,
only
as the district
he is
authorized to recommend
imposed
to
at
and, thus,
the discretion of the trial court
has no interest at
when
Panеl
stake
reduces a sentence
prosecuted. Moseley brought
defendant whom he has
prior
from that order of the
trial
he retired
the
the
docketing
ofthe
case
this Court. The current
Georgia
appeared
South
Judicial Circuit has
as his counsel of record
appeal.
standing
contends that he has
under
provi
of the Panel.
purpose
sion relates to seek mandamus relief. The
of a
compel
performance
writ of
is “to
[of
mandamus
a due
an official
duty],
specific legal remedy
legal rights.”
if there is
other
no
for the
OCGA 9-6-20. OCGA 9-6-24 confers
to seek
the writ
public duty
casеs
those
wherein
defendant owes a
which the
plaintiff,
public,
as a member of the
entitled
have enforced.
Dept.
Corrections,
Adams Ga.
Because does not seek enforcement validity performance public challenges duties, ofits of Panel’s it duties that the General has authorized correctly exercise, the under trial court found he lacked 17-10-6 9-6-24 to attack the of OCGA of mandamus. means complaint was not limited to sought injunctive relief the Panel. He
mandamus relief complaint alleges that The well. body legislative
[bjecause OCGA 17-10-6 creatеs Georgia’s judi- function and assumes the interferes with government, is this Code section unconstitu- cial branch Georgia’s separation powers doctrine. tional violates complaint grounds in issuance of stated for an One injunction is that unconstitutionally provides
[bjecause the since the authority Panel to reduce sentences and impaired arbitrary have Panel’s sentence reduction actions [Moseley’s] carrying duties, [he] in out official discretion enjoin reviewing any from seeks to Panel from sentence Georgia the South Judicial Circuit. liberally Moseley. in favor of must be construed 188, 191 Columbia, SE2d v.Federal Land Bank 246 Ga. Cotton proper
422) (1980). pleading given construction, it When Moseley sought, capacity, apparent in his own former official alleges injunction against he County Properties, v. 245 to be unconstitutional. See DeKalb Post Ga. (1) 905) (noting (1980) “the 214, 218 SE2d technicalities raising questions in been rеlaxed” and constitutional involved “ ”). setting things Thus, must be shown’ [that] forth the ‘three raised in this case. statute was capacity, Moseley’s standing, regard his official With statute, he the state’s 648 pending King
counsel in all criminal cases or matters State, in his circuit. v. (7) (271 630) (1980). capacity, 386, 246 Ga. 389 SE2d In that improper or was authorized to void sentences. See OCGA (a) (5); App. (1) (594 Jones, 5-7-1 v. Ga. State 493 SE2d (2004). party “[T]he is more than an advocate one responsibilities professional public prosecu- and has additional public’s Wooten, [Cit.]” tor to make decisions 273 Ga. interest. State v. (2) (543 721) (2001). judicial “The branch legislative frequently doubtless field mоre invades than does the legislative judicial duty field, branch the but it is the of each zealously protect its function invasion of the others.” McCutch- (2) (35 Smith, eon among Moseley’s responsibilities obligation included official was the challenge, grounds, on constitutional a statute which negotiate binding interferеd with his plea as a officer to agreements in criminal cases his circuit and which he con- imposition improper tended authorizes void and sentences committing jurisdiction. those convicted of crimes discharging duty imposed upon [Moseley]by In law, if in judgment original on the defen- entirely invalid, dant and thе was valid resentence was it is *3 appropriate people for him on of the behalf of the state to authorizing the statute the resentence. (I) (B) (Conn. 1982). Nardini,
State 445 A2d “[T]his 308 zealously protected government each three branches by from invasion of its functions the others it whenever has had the opportunity.” (93 (3) State, Parks v. 436 SE2d (1956). Therefore, had the constitu- tionality injunctive 17-10-6 and to seek relief provisions. enforcement of its 453) (2003) of Ga., v. State Ga. does Benefield support contrary holding. judge There, entered an underlying holding case,
order in the criminal OCGA 17-10-6 “and unconstitutional that the decision ofthе Panel was ‘without modify, replace, (the) legal sentence(s)’ effect to reduce or she originally imposed.” supra Ga., v. State at 100-101. Benefield long However, that, this Court held “as the sentence is one which application,’ totally is otherwise ‘covered insulated from trial a Panel decision is subject court’s claim reinvested matter jurisdiction question punishment.” over the v. State Benefield supra (2). Ga., contrast, at In 101-102 this case does not involve a trial jurisdiction subject court’s claim ofreinvested matter over a criminal preliminary Moseley’s Instead, defendant’s sentence. standing, issue is capacity attorney, in his former official as a district separate independent challenge initiate a of constitutionality OCGA 17-10-6. No statute can be insulated from an attack on its long subject
so as the action is filed in a court with jurisdiction brought by challenger standing. matter and is with Clearly, subject jurisdiction the trial court in this case had matter Moseley’s complaint injunctive over for and, relief for the reasons previously discussed, he had to assert the constitutional challenge. Moseley’s standing
The dissent contends that as the district attorney to raise a direct constitutional argued
was neither enumerated as error nor in his brief. grant- enumeration “[t]he asserts that trial court erred in denying [the Panel’s] motion to dismiss and [his] injunctive (Emphasis supplied.) mandamus and relief.” respect legal sufficiency The correct rule with of an only enumeration sufficient of error is it “need be point complainеd “(T)he subject out the error of. . . .” [Cit.] only general way”, matter need be indicated in the most ([cit.]), properly supported, and if the error asserted is provided by appellate rules of the it should be considered on the merits. Marler,
Adams-Cates Co. v.
Insofar as concerned, his brief does cite Chapter dealing which is found under of the Code following mandamus, and was codified made principle this court in [a] ...; mandamus cаse but the there announced is not confined to mandamus cases. It will *4 general noted that this Code section . . . leaves it as a rule applicable right question public public in all instances where the is one of object procure and the is to the duty. (Emphasis supplied.) Browning, (2) (109
Head v. 263, though applicable only even OCGA 9-6-24 is itself in mandamus legal principle applies equally cases, the set forth therein when Moseley determining standing p. brief, 12, authority in other contexts. In his generally of that he “has the asserts discharging questions involving duties of [it is] the Panel... because lawfully imposed right, ofour i.e., the enforcement of sentences judges.” Clearly, constitutionally elected, is an invo- local trial this principle 9-6-24, the forth in set cation imposed by authority Moseley to the the trial defend sentences pursuant the uncon- in his circuit from reduction courts stitutional OCGA 17-10-6. contrary
Accordingly, dissent, of stand- the issue bring direсt of the statute argued must, error in his enumerated as and was brief. We was therefore, having and, the the that issue consider merits of finding so, that the trial court erred in done we conclude requisite standing. lacked concluding standing, trial court
3.After lacked extending system that, rationale,” the “[m]oreover, statеd this by separation powers and balances established clause checks II, I, Ill of our does “not found Art. Sec. Par. state constitution prevent legislative calling upon branch branch sentencing.” goal to meet the of uniform may dispositive true, issue in this case is While that legislation by specific thаt was enacted the General whether goal does meet that is constitutional. OCGA 17-10-6 simply promulgate create commission with the sentencing guidelines applied by which are then to be the courts of Compare States, U. SC this state. Mistretta v. United S. 361 714) (1989) (discussing 102 LE2d Sentencing Commission). three-judge Federal creаtes a statute panel “authority reducing origi- with issue an order (c). nally judge.” the trial Whether grant judicial authority legislative constitutional under separation powers exclusivity clause, as well clause ofArt. important I, VI, I of the Sec. Par. Ga. Constitution of question. having perhaps
It is been unclear whеther influenced its conclusion that lacked erroneous gave required. Accordingly, question appropriate that is consideration portion judgment denying injunctive reverse that relief we remand proceedings case for further not inconsistent with opinion. Judgment part part case re- and reversed affirmed except J., concur, Huntstein, P. All the Justices
manded direction. part. Benham, J., who concur in and dissent in *5 Presiding concurring dissenting Justice, in HUNSTEIN, part. in
Although agree majority opinion I with the insofar as it holds Moseley standing compel appellees did to to that not seek to legal challenging initiate action of the Panel’s authority agree 17-10-6,1 § sentence reduction under OCGA cannot Moseley standing injunction against that has to seek an enforcement pleadings in § of OCGA 17-10-6.Areview of the record and this case Moseley challenge directly did seek demonstrates that not to OCGA standing had, if he a § 17-10-6 even the issue his to raise such properly is not before this Court. Purporting liberally complaint, majority to construe the ‘Moseley sought, capacity, holds that injunction against his own former official alleges 17-10-6,
enforcement § of OCGA which he Moseley standing pursue unconstitutional,” to be and that to capacity.” such an action “in his own official A former review of the complaint may apparent reveals, however, while it that Moseley’s goal underlying ultimate action was to obtain a judicial ruling sought unconstitutional, that OCGA 17-10-6 he to by filing legal challenge obtain such a determination nоt his own to majority, by seeking compel the statute as intimated to legal appellees appellees enjoin or, alternative, to initiate such action in the to enforcing seeking the statute without first such Moseley sought relief; determination. did not seek direct he to appelleеs force to initiate action determine constitution- ality through injunctive OCGA either or mandamus majority’s complaint relief.1 Because the “liberal construction” rewriting complaint results the substantial and the relief sought therein, I must dissent. Moseley assuming sought directly challenge
Even the consti- tutionality 17-10-6 and that the trial court ruled his on standing claim, to assert such a I further dissent because challenged appeal. pleadings on Consistent standing trial the under OCGA 9-6-24 as a citizen public claimed in his he had compel duty involving public right. He did not enumerate as error trial court’s determination was without as the any argument аuthority briefs are devoid of or citation to rules, therefore, issue. Under this Court’s own issue 1 Indeed, Moseley alleged reviewing in his that “since there is no other means of [appellees’] of the Panel’s under OCGA 17-10-6 and future brought question by [appellees] duty conduct has been into Panel’s actions . . . have a controversy resolve this action.” via directly aban- § 17-10-6 was Supreme Rule Court doned. joins in this Benham state that Justice I am authorized opinion. 26, 2006. June
Decided appellant. Moseley, Slover, Booth, Brown Hall, Joseph J. Smith Attorney, Baker, E. Mulholland, Thurbert District K. *6 Dumich, Christopher Attorney Brasher, G. General, Nichоlas S. Gray, Attorneys General, Hedrick Brooks, Assistant Marla-Deen appellees. Rutherford, L. Edenfield, M. Susan Bruce Edenfield, Olson, curiae. amicus Charles C. HAMILTON et al.
S06A0050. GREENWAY (631 SE2d Benham, Justice. brought proceeding probate in a court order is from a
This accounting by the executor of an estate. an heir Greеnway Stanley Appellant the estate named executor of was Chris Greenway. Evelyn Mary After distribution mother, his Greenway appellant’s Hamilton, heirs, niece Dina estate, one of accounting. probate After consider- court for an filed a objections, probate Greenway’s accounting and Hamilton’s finding, hearing as to entered an order court conducted fiduciary duty Greenway disputed matters, breached belonging plots selling for less than the estate to his wife land two handling mother’s bank accounts. funds from his and in market value The proceeds probate bank accounts from two court concluded Greenway deposit claimed as his own and a certificate heirs the him to distribute the estate and ordered were price probate proceeds. found the The court also bank account Greenway conveyed $7,500 than the fair less to his wife was lots heirs. amount distributed and ordered that market value Greenway executor’s estate for his to reimburse the also ordered pay attorney pay fees, costs for the and to commission, to Hamilton’s proceeding. fiduciary duty Greenway probate found violated The belonging excluding from bank accounts the estate funds power before he used a showed mother. evidence
his his mother’s accounts and bank add his name two death to