THOMPSON v. TELFAIR (2005)

The appellant, Warden Dannie Thompson, appeals from the habeas court's grant of relief to the appellee, Harry Telfair.   Warden Thompson contends that the habeas court erred in granting relief without holding an evidentiary hearing.   For the reasons that follow, we agree.

The habeas court ordered Warden Thompson to produce Telfair for an evidentiary hearing scheduled for April 20, 2005.¹  Because the warden did not have Telfair present at the start of the hearing, the habeas court refused to hold an evidentiary hearing and entered an order granting Telfair relief.   This Court, however, has repeatedly held that a warden is entitled to the benefit of an evidentiary hearing before a habeas court may grant relief.²  Moreover, in a situation similar to the present case, we have held that the failure of a warden “to reply to a writ requiring him to answer within a stated time may subject the [warden] to punishment for contempt,” but that it does not permit the trial court to order the release of the petitioner.³

Accordingly, in the present case, we conclude that the habeas court had the authority to punish the warden for contempt for failing to have Telfair present at the start of the hearing, but that it did not have the authority to grant Telfair relief without holding an evidentiary hearing.

Judgment reversed.

FOOTNOTES

1.   See OCGA § 9-14-46 (It is the duty of the Department of Corrections, or other authority having custody of a petitioner, to produce the petitioner for hearings as directed by the trial court.).

2.   State v. Colack, 578 S.E.2d 893 (2003);  Gearinger v. Taylor, 268 Ga. 73, 487 S.E.2d 600 (1997);  Gaither v. Gibby, 267 Ga. 96, 97, 475 S.E.2d 603 (1996).

3.   McLeod v. Barrett, 271 Ga. 569, 571, 522 S.E.2d 219 (1999);  Huddleston v. Ricketts, 233 Ga. 112, 210 S.E.2d 319 (1974).

SEARS, Chief Justice.

All the Justices concur.