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Lawskills.com Georgia Caselaw
POSS v. SMITH.
26155.
Habeas corpus. Tattnall Superior Court. Before Judge Caswell.
GRICE, Justice.
The time for filing the answer and response to the habeas corpus petition was in accordance with the law and therefore did not render the judgment void.
The appellant enumerates as error the denial of his motion to dismiss the answer and response to his petition for a writ of habeas corpus.
William T. Poss filed the petition in the Superior Court of Tattnall County, Georgia, against Lamont Smith, Warden, Georgia State Prison, alleging that his confinement was illegal due to specified errors in the trial proceedings related primarily to matters of evidence in his trial for burglary. He was found guilty and sentenced to twenty years in the penitentiary.
On that date, upon the call of the case, the respondent was granted an opportunity to answer and respond thereto on that same day, which he did.
Thereupon, the petitioner filed his motion to dismiss the answer and response on the ground that it was not timely filed in accordance with Code Ann. 50-127 (6). The motion prayed that the same be dismissed and that the petitioner be released from custody. The judgment denying the motion was certified for immediate review.
In our view this judgment was correct.
The statute (Code Ann. 50-127 (6); Ga. L. 1967, pp. 835, 837-838) provides that the answer and response in such habeas corpus cases shall be filed "within 20 days after filing and docketing of the petition, or within such further time as the court may set . . ." By this provision the court is authorized to extend such period.
That is what it did here. In this connection the judgment recites that the motion to dismiss was "filed at 10:15 a.m., August 3, 1970, . . . prior to any answer or response being filed by the respondent, respondent being granted an opportunity to answer and respond on August 3, 1970, same being made at 1:25 p.m., August 3, 1970 . . ."
No abuse of discretion or harm to the petitioner appears. Under this view we do not reach other questions raised by the respondent in support of the judgment.
Arthur K. Rolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Dorothy T. Beasley, Assistant Attorneys General, B. Daniel Dubberly, Jr., Deputy Assistant Attorney General, for appellee.
Hester & Hester, Frank B. Hester, for appellant.
ARGUED NOVEMBER 9, 1970 -- DECIDED DECEMBER 3, 1970.
Friday May 22 17:03 EDT


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