2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 13 - Criminal Extradition
Article 2 - Uniform Criminal Extradition Act
§ 17-13-30. Rights of Accused Person; Application for Writ of Habeas Corpus; Hearing; Penalty

1. No person arrested upon a warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender, of the crime with which he is charged, and that he has the right to demand and procure legal counsel. If the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of the court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When the writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to the agent of the demanding state.
2. Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant, in willful disobedience of subsection (a) of this Code section, shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000.00 or be imprisoned not more than six months, or both.

(Ga. L. 1951, p. 726, §§ 10, 11.)

- Habeas corpus generally, T. 9, C. 14.

Presumption is that Governor has complied with constitution and law, and this presumption continues until the contrary appears. McFarlin v. Shirley, 209 Ga. 794, 76 S.E.2d 1 (1953).

- Once the Governor has granted extradition, a court in a habeas corpus proceeding can do no more than decide whether the extradition documents on their face are in order; whether the petitioner has been charged with a crime in the demanding state; whether the petitioner is the person named in the request for extradition; and whether the petitioner is a fugitive. Hutson v. Stoner, 244 Ga. 52, 257 S.E.2d 539, cert. denied, 444 U.S. 967, 100 S. Ct. 455, 62 L. Ed. 2d 379 (1979); Stynchcombe v. Smith, 244 Ga. 548, 261 S.E.2d 342 (1979).

- Trial court properly denied a prisoner's petition for a writ of habeas corpus pursuant to O.C.G.A. § 17-13-30 seeking to block extradition; O.C.G.A. § 42-5-50 did not prevent defendant from being extradited while the defendant's motion for a new trial was pending. Bradford v. Brown, 277 Ga. 92, 586 S.E.2d 631 (2003).

Trial court properly dismissed an inmate's petition for a writ of habeas corpus for failing to state a claim upon which relief could be granted based on a finding that such was prematurely filed in that no governor's warrant had been issued or served from the seeking state at the time the petition was filed and the inmate had only been arrested for Georgia offenses; moreover, to the extent that the inmate might have been seeking to challenge an arrest without a warrant pursuant to O.C.G.A. § 17-13-34, insufficient facts were pled which supported such a claim. Powell v. Brown, 281 Ga. 609, 641 S.E.2d 519 (2007).

Georgia habeas court did not err by not examining a probable cause determination by a Washington magistrate because extradition documents were facially valid, a defendant had four felony charges pending in Washington, the defendant was the same person named in the extradition documents, and the defendant was a fugitive from Washington authorities; there was sufficient prima facie evidence to show that the defendant was a fugitive from justice. Smith v. State, 284 Ga. 356, 667 S.E.2d 95 (2008).

State meets the state's burden if the state produces an executive warrant, valid on the warrant's face. Cota v. Benson, 239 Ga. 695, 238 S.E.2d 332 (1977).

- When in the trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding, and the warrant is regular on the warrant's face, it is prima facie sufficient to hold the petitioner. McFarlin v. Shirley, 209 Ga. 794, 76 S.E.2d 1 (1953).

Executive warrant casts upon petitioner burden of showing why the warrant should not be executed. McFarlin v. Shirley, 209 Ga. 794, 76 S.E.2d 1 (1953).

- If petitioner contended that the superior court erred in denying the petitioner's petition for a writ of habeas corpus since there was no evidence that the petitioner, Dan Covert, was the "Dan Covert" named in the governor's warrant, there was no error since if the petitioner was not the person named in the governor's warrant, the petitioner had the burden to show that the petitioner was not. Covert v. Lee, 256 Ga. 357, 349 S.E.2d 450 (1986).

- Because the respondent tendered in evidence the requisition of the Governor of another state without a copy of an indictment found or an affidavit made before a magistrate, pursuant to 18 U.S.C. § 3182, the respondent in effect contradicted the prima facie showing made by the warrant alone, and thus showed that the petitioner was being illegally restrained in that the warrant was not based on a valid requisition and the trial court erred in remanding the petitioner to the respondent. McFarlin v. Shirley, 209 Ga. 794, 76 S.E.2d 1 (1953).

- Once a habeas corpus court has found the extradition papers to be legally sufficient, a further inquiry into a petitioner's statutory and constitutional defenses violates the clear intention that an extradition proceeding be of a summary nature. Defenses that the statute of limitations has run on the offense for which the petitioner is being extradited, that the petitioner has been denied a speedy trial, and all other due process questions are issues to be properly decided by courts in the demanding state, not by courts in any asylum state. Hutson v. Stoner, 244 Ga. 52, 257 S.E.2d 539, cert. denied, 444 U.S. 967, 100 S. Ct. 455, 62 L. Ed. 2d 379 (1979).

Absence from demanding state at time of commission of alleged crime is no longer a defense which is cognizable in an extradition proceeding. Hutson v. Stoner, 244 Ga. 52, 257 S.E.2d 539, cert. denied, 444 U.S. 967, 100 S. Ct. 455, 62 L. Ed. 2d 379 (1979).

- Allegations that the state where a petitioner for habeas corpus was arrested and convicted waited a year and a half to send a warrant and that the conviction was only a misdemeanor, and that the petitioner had obtained work, married, and now has a family, and has incurred obligations, even if proved, are not sufficient to act as a bar to extradition proceedings. Graham v. State, 231 Ga. 820, 204 S.E.2d 630 (1974).

- In a habeas corpus proceeding, if it is shown that the Governor issued an extradition warrant pursuant to the mandatory terms of the Constitution and O.C.G.A. § 17-13-23, i.e., with the understanding that the petitioner had committed a crime in the demanding state and had fled therefrom, relief should have been granted based on a stipulation that the petitioner had not committed a crime while in the demanding state. Jenkins v. Garrison, 265 Ga. 42, 453 S.E.2d 698 (1995).

Cited in Smithwick v. Olson, 229 Ga. 494, 192 S.E.2d 337 (1972); Ward v. Jarvis, 240 Ga. 668, 242 S.E.2d 134 (1978); Treadaway v. Baker, 241 Ga. 95, 243 S.E.2d 41 (1978); Harris v. Massey, 241 Ga. 580, 247 S.E.2d 55 (1978); McCullough v. Stynchcombe, 243 Ga. 24, 252 S.E.2d 453 (1979); Johnson v. Mitchell, 256 Ga. 339, 349 S.E.2d 186 (1986); Marini v. Gibson, 267 Ga. 398, 478 S.E.2d 767 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Extradition procedure generally.

- Unless the fugitive from a foreign state commits some criminal act in this state, a Georgia court will not issue a warrant for the fugitive's arrest except pursuant to this article, in which case the sheriff is then required, under extradition procedures, to deliver the fugitive before the proper court in this state where the fugitive has the right to contest extradition by writ of habeas corpus. 1972 Op. Att'y Gen. No. 72-24.

- If the sheriff fails to deliver the fugitive before the proper court, and instead delivers the fugitive up to the foreign bondsman, the fugitive will be subject to criminal prosecution. 1972 Op. Att'y Gen. No. 72-24.

- While it would seem that this section would not apply if the prisoner has already waived extradition, the question of identity of the accused could well override all other considerations, and the need for a hearing in this respect would be just as great if a waiver was made in the paroling state as if it was not. While the prisoner has no right to formal extradition proceedings, the proceedings having already been waived, due caution would seem to require that the prisoner be taken before a judge prior to delivery. 1958-59 Op. Att'y Gen. p. 252.

- This section is not applicable to prisoners who are paroled to this state and who have signed a waiver of extradition as a condition of parole. 1958-59 Op. Att'y Gen. p. 253.

RESEARCH REFERENCES

Am. Jur. 2d.

- 31A Am. Jur. 2d, Extradition, § 123 et seq.

- 35 C.J.S. (Rev), Extradition and Detainers, § 40.

- Uniform Criminal Extradition Act (U.L.A.) § 10.

- Right to prove absence from demanding state or alibi on habeas corpus in extradition proceedings, 51 A.L.R. 797; 61 A.L.R. 715.

Necessity and sufficiency of identification of accused as the person charged, to warrant extradition, 93 A.L.R.2d 912.

Discharge on habeas corpus of one held in extradition proceedings as precluding subsequent extradition proceedings, 33 A.L.R.3d 1443.