In 1986, David Vargas was found guilty of three counts of aggravated child molestation, and the Court of Appeals affirmed his convictions. Vargas v. State , 184 Ga. App. 650 362 SE2d 461 1987. One issue raised on appeal was whether the trial court erred in allowing two witnesses to testify about an outcry made by the victim some four months after the last instance of her alleged molestation. The Court of Appeals disposed of that contention by holding that the testimony was properly admitted under both the rule stated in Cuzzort v. State , 254 Ga. 745 334 SE2d 661 1985, and under OCGA § 24-3-16. While the outcry occurred prior to the effective date of OCGA § 24-3-16, the determinative date as to the applicability of OCGA § 24-3-16 was the date of trial. Cit. Vargas v. State , supra at 650-651 2. In 2000, the Supreme Court of the United States decided Carmell v. Texas , 529 U. S. 513, 551 IX 120 SC 1620, 146 LE2d 577 2000, holding that the ex post facto clause of the Federal Constitution “applies to ‘every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’ Cit.” Thereafter, Vargas petitioned for a writ of habeas corpus and, among his other claims, asserted that the Carmell decision stood for the proposition that allowing the two witnesses to testify about the victim’s outcry was a constitutional violation because all three of the acts of molestation with which he was charged preceded the effective date of OCGA § 24-3-16. The habeas court denied relief, but failed to consider and address Vargas’ ex post facto claim under Carmell . We granted his application for a certificate of probable cause and remanded the case for a hearing and resolution of that claim.
On remand, the habeas court concluded that Carmell was applicable and that, contrary to the holding of the Court of Appeals in Vargas , supra, OCGA § 24-3-16 could not be applied constitutionally in any trial for a crime committed before the date that the statute became effective. Therefore, the habeas court granted Vargas’ petition, from which order the Warden brings this appeal pursuant to OCGA § 9-14-52 c.
