Rozar v. Donald , 280 Ga. 111 ( 2005 )

Hines, Justice.

This Court granted inmate Scott Lee Rozar’s application for discretionary appeal from a January 14, 2005 order of the Superior Court of Fulton County dismissing his petition for writ of mandamus for “want of prosecution.”¹ The issue is whether the superior court erred by dismissing the mandamus petition filed by Rozar, an incarcerated party, based upon his failure to appear at a hearing in the matter, when the superior court did not grant Rozar’s motion for issuance of a writ of habeas corpus ad testificandum. For the reasons which follow, it must be concluded that the superior court erred in its dismissal of the mandamus petition on the basis it cited.

On October 13, 2004, inmate Rozar pro se filed a mandamus action in Fulton County Superior Court against James Donald, as Commissioner of the Georgia Department of Corrections, alleging that Donald failed to give Rozar credit for jail time served in Mississippi as well as in Georgia while awaiting trial on an offense in Cobb County. Rozar claimed that, pursuant to OCGA §§ 17-10-10² and 17-10-11,³ he was entitled to more time than that which he was credited. Rozar attached to his petition a “Motion for Ad Testificandum to Pending Writ of Mandamus” pursuant to OCGA § 24-10-62.* **⁴ The superior court did not rule on the motion. The court set the case for a hearing and issued a rule nisi directing Rozar to appear, but did not enter the production order Rozar submitted that he needed, as an incarcerated witness, to be in court. The superior court dismissed the case for want of prosecution based on Rozar’s failure to appear at the hearing.

Certainly, Rozar,

as a prisoner, has no constitutional right or fundamental interest in being present at the trial of a civil action to which he is a party, sufficient to outweigh, as a matter of course, the interest of the state in avoiding expense. [Cit.] Issuance of a writ of habeas corpus ad testificandum is predicated upon a prisoner’s showing that the ends of justice require his presence. [Cit.] Whether there is a need for a prisoner’s presence is a discretionary determination, and the trial court’s decision in that regard will not be reversed in the absence of a clear abuse of its discretion. [Cits.] To demonstrate need, the prisoner must show what he expects to prove and how that proof bears on the case. [Cit.]

(Punctuation omitted.) Elrod v. Elrod, 272 Ga. 188, 190-191 (4) (526 SE2d 339) (2000).

But the problem in this case is not an issue of any abuse of discretion in denying prisoner Rozar a writ of habeas corpus ad testificandum or in any other manner refusing to allow his presence at the mandamus hearing.⁵ Rather, the problem is that the superior court summarily dismissed Rozar’s mandamus suit for failing to physically appear at a scheduled hearing when the incarcerated Rozar lacked the ability to make such an appearance.

Donald argues that Rozar’s “Motion for Ad Testificandum to Pending Writ of Mandamus” was not a request that he be produced for a hearing in the mandamus petition against Donald because the motion bore a different civil action number, and that even if the motion was meant to be in this case, Rozar still failed to establish a need that he be produced. But such argument merely begs the question. The record discloses that Rozar’s motion, even if bearing a civil action number not eventually assigned to the petition for mandamus against Donald, was part and parcel of his filings in the case.⁶ As to Rozar’s alleged lack of establishing “need,” a showing of the need to be present at court proceedings is a separate question from legal prosecution of the case. Elrod at 190-191 (4). The difficulty with the present situation is evident. Rozar is denied permission, albeit by the court’s inaction, to be present at the hearing, and then his cause is dismissed for his non-presence at the hearing.

Accordingly, the judgment of the superior court dismissing Rozar’s petition for mandamus is reversed, and the case is remanded to the superior court for action consistent with this opinion.⁷

Judgment reversed and case remanded.

All the Justices concur, except Carley, J., who dissents.

1 The order recites in conclusion that the petition is dismissed for “want of prosecution”; however, the order states the underlying reason as Rozar’s failure to appear in court for the scheduled hearing.

2 OCGA§ 17-10-10 provides:

(a) Where at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein.

(b) Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, the sentences shall be served concurrently, one with the other, unless otherwise expressly provided therein.

(c) This Code section shall apply alike to felony and misdemeanor offenses.

(d) This Code section shall govern and shall be followed by the Department of Corrections in the computation of time that sentences shall run.

3 OCGA§ 17-10-11 provides:

(a) Each person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial and for each day spent in confinement, in connection with and resulting from a court order entered in the criminal proceedings for which sentence was imposed, in any institution or facility for treatment or examination of a physical or mental disability. The credit or credits shall b e applied to ward the convicted p erson’s sentence and shall also be considered by parole authorities in determining the eligibility of the person for parole.

(b) This Code section applies to sentences for all crimes, whether classified as violations, misdemeanors, or felonies, and to all courts having criminal jurisdiction located within the boundaries of this state, except juvenile courts.

4 OCGA § 24-10-62 states:

The writ of habeas corpus ad testificandum may he issued by the superior court to cause the production in court of any witness under legal imprisonment.

5 In this appeal, the propriety of the grant or denial of Rozar’s writ of habeas corpus ad testificandum is not at issue.

6 The document was indexed as part of the mandamus petition filed on October 13, 2004.

7 This Court makes no ruling on the merits of this mandamus action against Donald or on whether the suit is subject to dismissal on other grounds.