Patterson v. Smith , 227 Ga. 170 ( 1971 )

227 Ga. 170 (1971) 179 S.E.2d 247

PATTERSON
v.
SMITH.

26193.

Supreme Court of Georgia.

Submitted December 14, 1970. Decided January 11, 1971.

Jerry Patterson, pro se.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Charles B. Merrill, Jr., Assistant Attorneys General, for appellee.

NICHOLS, Justice.

The petitioner filed a petition for writ of habeas corpus in which he asserted that two sentences imposed by the Superior Court of Gwinnett County were illegally imposed upon him. The trial court remanded the petitioner to custody and he filed the present appeal. Held:

1. "The legality of the present confinement is the question under review in a habeas corpus proceeding. See Harris v. Norris, 188 Ga. 610, 611 (4 SE2d 840); Dutton v. Knight, 223 Ga. 140 (153 SE2d 714)." Evans v. Perkins, 225 Ga. 48, 50 (165 SE2d 652).

2. The sentences attacked were by their express terms to be served consecutively to the sentences the prisoner was then serving, as provided for by the Act of 1964 (Ga. L. 1964, p. 494; Code Ann. § 27-2510. Under the undisputed evidence adduced at the hearing the petitioner's present confinement is not under the sentences attacked, but under prior sentences, and the trial court did not err in remanding the petitioner to the custody of the warden of the State prison.

Judgment affirmed. All the Justices concur.