Opinion
S89A0372.
DECIDED FEBRUARY 7, 1990.
Habeas corpus. Chatham Superior Court. Before Judge Gadsden.
Michael J. Bowers, Attorney General, Paula K. Smith, Assistant Attorney General, for appellant.
Robert L. Sims, pro se.
The state appeals a finding by the habeas trial court that a 1973 guilty plea to murder and armed robbery was not knowing and voluntary. Related issues were raised by Sims in previous habeas petitions filed in 1975 and 1986. The habeas trial court refused to dismiss this petition as successive, held a hearing on the voluntariness issue, and, based on the scanty Boykin [ v. Alabama, 395 U.S. 238 ( 89 S.C. 1709, 23 L.Ed.2d 274) (1969)] record made at the plea of guilty, granted the writ.
Boykin was decided several years before Sims' guilty plea and the filing of his first habeas petition. He has shown no reason why this claim could not have been raised in the earlier habeas corpus petitions. Smith v. Zant, 250 Ga. 645, 647 ( 301 S.E.2d 32) (1983). The habeas trial court's holding that a Boykin claim is non-waivable was error and the motion to dismiss this petition as successive should have been granted. OCGA § 9-14-51.
The habeas court hearing the petition now in question treated the Boykin ground as though it had not been previously raised, although, arguably, it was raised in his second petition.
Judgment reversed. All the Justices concur.