Coker v. Hopper , 1978 Ga. LEXIS 977 ( 1978 )

Bowles, Justice.

Coker appeals the denial of his petition for a writ of habeas corpus. The trial court found that the petition was successive. We reverse.

Appellant and Carl J. Isaacs filed a habeas corpus petition in Civil Action No. 76-100, to challenge all statutes authorizing a life sentence. At that time, petitioner was serving a death sentence, affirmed in 234 Ga. 555 (216 SE2d 782) (1975), and reversed on appeal to the United States Supreme Court. See Coker v. Georgia, 433 U. S. 584 (97 SC 2861) (1977). The habeas corpus court found that the petitioners were not attacking the sentences which they were then serving and, therefore, their petition failed to state grounds for habeas corpus Relief. The petition was dismissed with prejudice, without having been heard on its merits.

In the instant application, Civil Action No. 77-209, appellant challenges his sentences of life and eight years imposed under a plea of guilty to rape and aggravated assault, which offenses occurred before those described in Coker v. State, 234 Ga. 555 (216 SE2d 782)(1975).

Petitioner has not had a habeas corpus petition considered on its merits. Therefore, the instant application is not successive and should be considered in the trial court.

Judgment reversed.

All the Justices concur. Arthur K. Bolton, Attorney General, for appellee.