DAKER v. Warren , 288 Ga. 799 ( 2011 )

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709 S.E.2d 222 (2011)
DAKER
v.
WARREN.
No. S10A1541.
Supreme Court of Georgia.
March 18, 2011.
*223 Waseem Daker, Marietta, pro se.

Patrick H. Head, District Attorney, John Richard Edwards, Jesse David Evans, Asst. Dist. Attys., for appellee.

HINES, Justice.

Pro se appellant Waseem Daker appeals the dismissal of his pre-trial petition for the writ of habeas corpus. For the reasons that follow, we reverse and remand.

It appears that Daker was arrested on January 15, 2010 on a warrant for malice murder, felony murder, burglary, aggravated stalking, and two counts of aggravated assault, based on events that occurred on October 23, 1995. He was denied a pre-trial bond,^[1] and filed a petition for a writ of habeas corpus, alleging constitutional violations in the decision to deny him pre-trial bond, including that the trial court's denial of bail was arbitrary and a violation of the standards set forth in Ayala v. State, 262 Ga. 704, 425 S.E.2d 282 (1993). The habeas court dismissed the petition, without a hearing.

Doing so was error. Regarding a pre-trial petition for a writ of habeas corpus, the State notes that when "`the petition and exhibits attached thereto disclose without contradiction that the petition is without merit, it is not error to dismiss the same without a hearing.' [Cit.]" Britt v. Conway, 281 Ga. 189, 190, 637 S.E.2d 43 (2006). The habeas court had the authority to review Daker's petition asserting that he was illegally denied bail. See Constantino v. Warren, 285 Ga. 851, 684 S.E.2d 601 (2009); Banks v. Waldrop, 272 Ga. 475, 531 S.E.2d 708 (2000); Mullinax v. State, 271 Ga. 112 (1, 2), 515 S.E.2d 839 (1999). And, the petition and exhibits do not reveal without contradiction that Daker's claim that the trial court abused its discretion under Ayala, supra, is meritless. Britt, supra. Accordingly, we must reverse the dismissal of Daker's habeas petition and remand the matter to the habeas court for a determination on the merits. Banks, supra.

Judgment reversed and case remanded.

All the Justices concur, except CARLEY, P.J., who dissents.

NOTES

[1] The transcript of the bond hearing is in the habeas record, and during the hearing, the court states that Daker is a flight risk.