Bunn v. Burden

237 Ga. 439 (1976) 228 S.E.2d 830 BUNN v. BURDEN et al. 31282. Supreme Court of Georgia. Argued July 12, 1976. Decided September 7, 1976. Reber Boult, Al Horn, for appellant. Clete D. Johnson, District Attorney, Arthur K. Bolton, Attorney General, Harrison Kohler, Staff Assistant Attorney General, for appellees. UNDERCOFLER, Presiding Justice. This is a habeas corpus seeking to set aside a sentence of two years probation and a $2,000 fine on a nolo contendere plea for possessing phencyclidine. Appellant was indicted and sentenced under Code Ann. § 79A-903 (b) (4) prior to that section being held unconstitutional by this court in Sundberg v. State, 234 Ga. 482 (216 SE2d 332) (1975). The trial court held the Sundberg decision was not retroactive and dismissed the petition. We reverse. "A criminal indictment and subsequent conviction thereof based upon a void statute is nugatory, without any force or effect and should be dismissed." Cadle v. State, 136 Ga. App. 232 (2) (221 SE2d 59) (1975). Habeas corpus is not an available remedy for the recovery of a fine. Code Ann. §§ 50-101, 50-127 (1). Judgment reversed. All the Justices concur, except Jordan, Ingram and Hill, JJ., who concur specially. HILL, Justice, concurring specially. I dissented in Sundberg v. State, supra. Nevertheless, in Sundberg v. State a majority of this court held Code Ann. § 79A-903 (b) (4) to be unconstitutional and that is the law. The correctness of Sundberg is not in issue here. The issue here is whether a decision of this court, holding a section of our Code to be unconstitutional, shall be given retroactive effect in favor of a defendant who was indicted, tried and sentenced under an unconstitutional provision of law. I agree with the majority that a person cannot be held in prison pursuant to a sentence imposed under an unconstitutional law and I therefore concur in the judgment. I am authorized to state that Justice Jordan and *440 Justice Ingram join in this special concurrence.