Whitus v. Caldwell

229 Ga. 604 (1972)

193 S.E.2d 613

WHITUS v. CALDWELL.

27394.

Supreme Court of Georgia.

Submitted September 12, 1972.

Decided October 6, 1972.

Phil Whitus. pro se.

*605 Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.

MOBLEY, Chief Justice.

This appeal is from the dismissal of the petition of appellant seeking writ of habeas corpus. The appellant filed application for writ of habeas corpus which contained petition for leave to file and proceed in forma pauperis, alleging that: "Because of his poverty he is unable to pay the costs and fees or to give bond in lieu thereof."

The respondent filed a traverse of the appellant's affidavit of poverty, under the provisions of Code Ann. § 24-3413. The trial court, after hearing evidence, sustained the traverse and dismissed the petition.

The evidence showed that the appellant had $74.11 on deposit with the State prison and that there was no restriction on his withdrawing his money. Thus the court properly found that the appellant was not relieved of the necessity of paying the $20 costs, as he failed to show, as required by Code Ann. § 24-3413, "that from poverty he is unable to pay these costs."

The court dismissed the petition "without prejudice to Phil Whitus to refile a petition for writ of habeas corpus together with the necessary deposit required by Georgia law if, at the time of refiling, petitioner Whitus is able to pay such deposit." The court properly dismissed the petition.

Judgment affirmed. All the Justices concur.