WEATHERBED v. THE STATE.
S99A1222
SUPREME COURT OF GEORGIA
NOVEMBER 22, 1999.
271 Ga. 736 | 524 SE2d 452
HINES, Justice.
Law enforcement officers testified at a Jackson-Denno hearing that prior to making his statement at police headquarters, appellant was read his rights twice, and stated that he understood what was read to him. Appellant also signed a waiver of rights form. At the hearing, appellant acknowledged that his Miranda rights were read to him twice and that he signed the waiver of rights form, but nonetheless claimed that he did not understand those rights. Law enforcement officers testified that appellant appeared to understand his rights, did not appear to be under the influence of drugs or alcohol, and was not coerced or offered inducements in exchange for his inculpatory statements. Having reviewed the record and after considering the totality of the circumstances, we cоnclude that the trial court did not err in finding by a preponderance of the evidence that appellant‘s inculpatory statements were voluntarily and knowingly made, and thus were admissible.
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 22, 1999.
John E. Pirkle, for appellant
J. Thomas Durden, Jr., District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney Gеneral, Daniel G. Ashburn, Assistant Attorney General, for appellee.
HINES, Justice.
Weatherbed appeals the trial court‘s denial of his motion for an out-of-time appeal. For the reasons which follow, we reverse.
On October 20, 1995, Weatherbed pled guilty to an accusаtion for malice murder and was sentenced to life in prison. He was represented by counsel and waived indictment in writing. On November 28, 1995, he filed a pro se “Motion for Extension to Appeal,” which was denied. Through counsel, he filed a motion for an out-of-time appeal on August 13, 1998, asserting that his trial counsel was ineffective for not informing him of his right to appeal, and the court denied the motion.
“The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may
In all felony cases, other than cases involving capital felоnies, . . . the district attorney shall have authority to prefer accusations, and such defendants shall be tried on such accusations, provided that defendants going to trial under such accusations shall, in writing, waive indictment by a grand jury.
Judges of the superior court may open thеir courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty in misdemeanor cases and in felony cases, except those punishable by death or life imprisonment, when the judge and the defendant сonsent thereto. The judge may try the issues in such cases without a jury upon an accusation filed by the district attorney where the defendant has waived indictment and consented thereto in writing and counsel is present in court representing the defendant either by virtue of his employment or by appointment by the court.
Under the common law prior to the passage of
had no jurisdiction to try, or accept a plea of guilty of one charged with a felony until the grand jury had returned an indictment. By [enactment of
OCGA § 17-7-70 ] the court was given jurisdiction so to do in felony cases, but was expressly excluded therefrom as to those “punishable by death or life imprisonment.”1
Webb v. Henlery, 209 Ga. 447, 449 (74 SE2d 7) (1953) (overruled on other grounds, Garmon v. Johnson, 243 Ga. 855, 857 (257 SE2d 276) (1979)). After passage of the statute, the superior court remained
Withоut an indictment, the trial court had no jurisdiction to accept Weatherbed‘s plea and sentence him. “When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgmеnt will be reversed. [Cits.]” Darden v. Ravan, 232 Ga. 756, 758 (1) (208 SE2d 846) (1974). A void judgment may be attacked at any time, and this is not a situation in which the limitations on this rule might apply. See Bennett v. State, 268 Ga. 849, 850 (494 SE2d 330) (1998).
For the purposes of superior court jurisdiction under
The State suggests that because it did not seek the death penalty against Weatherbed, he was not charged with a “capital felony” within the meaning of
“[i]n 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 punishmеnt 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.” [Cit.]
(Emphasis in original.) Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759) (1977). This is also the definition that has been used in examining the precursor to
The fact that the State did not seek the death penalty does not take this case outside the ambit of
The State‘s argument that Weatherbed freely and voluntarily consented to the procedure and waived his right to indictment, even if true, is irrelevant. Parties cannot, by their consent, confer subject matter jurisdiction on a court that does not otherwise have it. Gray v. Gray, 229 Ga. 460, 461 (192 SE2d 334) (1972).
The case is returned to the superior court for proceedings consistent with this opinion.
Judgment reversed with direction. All the Justices concur, except Benham, C. J., whо concurs specially.
BENHAM, Chief Justice, concurring specially.
I am in full agreement with the majority opinion‘s holding that Weatherbed‘s guilty plea to murder could not be received by the trial court absent an indictment because
Prior to the enactment of the 1983 Constitution, the Supreme Court of Georgia was the appellate court with jurisdiction in “all cases of a conviction of a capital felony.”
The district attorney did not give timely notice to the defense that the state intended to seek the death penalty, Unified Appeal, § II. A. 1., 246 Ga. at A-7, and for this reason this is not a case “in which a sentence of death was imposed or could be imposed.”
Constitution of Georgia of 1983, Art. VI, Sec. VI, Par. III (8) . Hence, this appeal was properly filed in the Court of Appeals.
State v. Thornton, supra, 253 Ga. 524 (1).
The Thornton court recognized that the 1983 Constitution did not give this Court appellate jurisdiction of an appeal whеrein the defendant, though charged with murder, could not receive the death penalty. For policy reasons not identified in the opinion, however, the Court issued an order directing the Court of Appeals to transfer to this Court “all cases in which either a sentencе of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district attorney as required by Unified Appeal, § II. A. 1., 246 Ga. at A-7.” Id. Since then, this Court has accepted from the Court of Appeals numerous transfers of appeals from murder convictions in which the defendant was sentenced to life imprisonment. See, e.g., Winn v. State, 269 Ga. 145 (498 SE2d 56) (1998); In re E.W., 256 Ga. 681 (353 SE2d 175) (1987). In fact, the appeal at bar initially was filed in the Court of Appeals, which transferred it to this Cоurt, citing State v. Thornton. Weatherbed v. State, Case No. A99A1701, May 7, 1999 order. While this Court has accepted the Thornton transfers, we have also continued to recognize that the 1983 Constitution gives the Court of Appeals appellate jurisdiction of appeals of murder cases in which a sentence of death cannot be imposed. See, e.g., Rhyne v. State, 264 Ga. 176, 177 (442 SE2d 742) (1994).
This Court‘s interpretatiоn of the constitutional grant of jurisdiction in Thornton and Rhyne is supported by a straightforward reading of the language used in the 1983 Constitution. Given the use of the past tense, the phrase “cases in which a sentence of death was imposed,” can only mean cases in which a defendant has been sen-
This Court‘s Thornton order requiring the Court of Appeals to transfer to the Supreme Court all appeals of murder convictions and all pre-conviction appeals in murder cases, regardless of whether the death penalty is being sought, continued the jurisdictional line drawn by the 1976 Constitution and the judicial holdings that limited the imposition of the death penalty,2 despitе the passage of the 1983 constitutional provision. It is time, however, to give effect to the 1983 Constitution‘s jurisdictional change which this Court acknowledged in Thornton and Rhyne.
Although I am convinced that appellate jurisdiction over this case is properly in the Court of Appeals since the record does not reflect that the district attorney timely filed a notice of intent to seek the death penalty, I am able to concur in the judgment of reversal because this case was docketed in this Court in compliance with the Thornton order and should therefore be resolved here. However, I would hold that after the appearance of this opinion in the advance sheets, appeals in murder cases in which the death penalty was not imposed or could not be imposed because the State did not announce timely its intent to seek that sanction pursuant to USCR 34 are to be docketed in and decided by the Court of Appeals pursuant to
DECIDED NOVEMBER 22, 1999.
Craig L. Cascio, for appellant.
John C. Pridgen, District Attorney, Thurbert E. Baker, Attorney