text:
    A00A1713.
    HINES v. THE STATE.
    (541 SE2d 410)
   Blackburn, Presiding Judge.

Following a jury trial, Corey Omar Hines appeals his conviction for armed robbery, contending that: (1) the trial court erred by allowing the State to refer to “book-in” photos; (2) the trial court erred by allowing a photographic lineup identification form to go out with the jury; (3) the trial court erred by allowing the prosecutor to make , an improper Golden Rule argument during closing; and (4) trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.

OCGA § 16-8-41 (a) provides: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person ... by use of an offensive weapon.”

Viewed in the light most favorable to the verdict, the record shows that, on the evening of December 9,1996, Sherife Wright went to the arcade at Malibu Grand Prix. While there, he became acquainted with Hines, Damien Cofer, Fareed Smith, and another person identified only as Brian. Wright followed Hines and the others to Hines’ car. At that point, Wright was forced into the car at gunpoint by Cofer. After stopping for gas, Hines drove the car to a deserted area, and Cofer, who was in the backseat with Wright, took $10, a pair of ski goggles, a wristwatch, and a jacket from Wright. Wright testified that Hines told him that he would “meet the grim reaper” if he failed to cooperate. Wright also stated that, before he was left on the side of the road to walk home, Hines slapped him in the face.

Thereafter, Hines was charged with armed robbery and kidnapping with bodily injury. During trial, Hines did not deny his presence during the robbery. He admitted that he met Wright on the night in question and that he was driving the car when the robbery took place. Hines did contend, however, that he was not a participant in the robbery and had no idea that it was going to occur. The jury convicted Hines of armed robbery but found him not guilty of kidnapping with bodily injury.

Although Hines does not directly question the sufficiency of the evidence on appeal, we find that the jury’s verdict was proper under the standard set out by Jackson v. Virginia. And the fact that Hines may not have directly participated in the crime does not change this result.

[D]irect participation in a particular crime is not required for a conviction when a person is a party to a crime. OCGA § 16-2-21. By intentionally aiding, abetting, advising, or encouraging another to commit a crime, one is a party to that crime. Raines v. State, 186 Ga. App. 239, 240-241 (2) (366 SE2d 841) (1988). Further, after persons have associated themselves together to do an unlawful act, any act done in furtherance of that association by any one of them is considered the act of each of them. Ford v. State, 163 Ga. App. 745, 746 (296 SE2d 85) (1982).

Nanthabouthdy v. State.

1. Hines contends that his conviction must be reversed because a witness for the State referred to book-in shots taken of him, thereby bringing his character into evidence. We disagree.

During direct examination, Detective Heiberger was asked how he had confirmed that Hines was involved in the robbery. Heiberger replied that he “telephoned DeKalb County Police Department and had them conduct a records check and obtained a book-in photo.” Heiberger then used this book-in photo to create a photographic lineup. Hines, however, made no objection to the use of the term “book-in photo.” Therefore, he waived his right to argue this error on appeal. Young v. State. Moreover, even if the argument had been preserved, there would be no error. In Gravitt v. State, a police officer testified that a picture of the defendant shown to the victim “ ‘was a mug shot from the files of the DeKalb County Police Department.’ ” The Supreme Court held that “such evidence, without more, contains nothing to indicate that the defendant was guilty of previous crimes [and] did not put the appellant’s character [in] issue.” Id. Likewise, Detective Heiberger’s statement did not put Hines’ character in issue here.

2. Hines next contends that the trial court erred by allowing a photographic lineup identification form to go out with the jury as a continuing witness. Specifically, Hines argues that the form, unlike others which are generally admissible to explain the makeup of the lineup, see Brewton v. State, improperly included a sworn statement from Wright identifying Hines as a participant in the robbery.

Again, Hines made no objection with regard to this matter, and, therefore, he cannot argue this point for the first time on appeal. Young, supra. Moreover, even if Hines’ argument was preserved, we find no reversible error. Hines’ identification was not an issue in this case. Hines admitted that he was driving the car during the robbery of Wright. This enumeration, therefore, lacks merit.

3. Hines argues that the trial court improperly allowed the prosecutor to make a “Golden Rule” argument to the jury. We disagree.

In a classic “golden rule” argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. [Cit.] However, any argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.

Horne v. State. On the other hand, a prosecutor generally may appeal to the jury to convict for the safety of the community. Davis v. State; Philmore v. State.

In this case, the prosecutor argued:

Please, again, do not re-victimize Mr. Wright. . . . For the sake of Mr. Wright, for the sake of everyone else in this county and everyone else that will come through this county, help keep them safe. . . . Please find Mr. Hines guilty of armed robbery and kidnapping with bodily injury so we can help and you can help keep everyone safe.

This argument does not entreat the jury to place themselves in the victim’s shoes with regard to the crime committed. Rather, it appeals to their desire to create a safe community. While the better practice would be to not refer to the victim in making the subject argument, we cannot say the trial court erred in allowing this comment.

4. Finally, Hines argues that he received ineffective assistance of counsel. Specifically, Hines contends that his trial counsel failed to adequately prepare for trial, thereby precipitating the numerous errors discussed above because he was not familiar with either the facts of the case or the applicable laws. As we have already found that the previously enumerated errors lack merit, we will focus on Hines’ claim of inadequate preparation here.

Decided October 26, 2000

Reconsideration denied November 17, 2000

Stephen T. Maples, Bernard Knight, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency. We need not address both prongs of this test if the showing on one prong is insufficient.

(Citation and punctuation omitted.) Brown v. State.

After reviewing the record in this case, we find that Hines’ attorney was adequately prepared for trial. Hines’ attorney met with him prior to trial, developed the case, and argued vehemently on his behalf during trial proceedings. In fact, Hines’ attorney successfully had him acquitted of the kidnapping with bodily injury charge, and, prior to reaching their guilty verdict as to robbery, the jury had to be given an Allen charge with regard to their deliberations. The record in this case reveals no harm to Hines from the actions of his attorney, and Hines presents no compelling evidence on appeal that any such harm occurred.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Nanthabouthdy v. State, 245 Ga. App. 456, 459 (3) (538 SE2d 101) (2000).

        Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998).

        Gravitt v. State, 239 Ga. 709, 712 (5) (239 SE2d 149) (1977).

        Brewton v. State, 174 Ga. App. 109 (2) (329 SE2d 270) (1985).

        Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989).

        Davis v. State, 266 Ga. 801, 804 (8) (471 SE2d 191) (1996).

        Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993).

        Brown v. State, 225 Ga. App. 49, 51 (1) (b) (483 SE2d 318) (1997).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2557.
    BUCHHEIT et al. v. GILLIS et al.
    (541 SE2d 441)
   Phipps, Judge.

The Gillises and the Buchheits own adjoining lots in Rivers End subdivision in Chatham County. The Gillises sued the Buchheits in a boundary line dispute. In Gillis v. Buchheit, we reversed the trial court’s grant of the Buchheits’ motion for summary judgment. The Buchheits now appeal judgment on a jury verdict in the Gillises’ favor. Finding no reversible error, we affirm.

As stated in Gillis, Mr. Gillis purchased his and his wife’s lots from George Clarke, Sr. and George Clarke, Jr. in 1956. After Clarke, Sr.’s death, the Buchheits purchased their lots from Clarke, Jr. in 1972. Gillis testified that when he purchased his lots from the Clarkes, it was mutually understood that the boundary line would be one that he and Clarke, Sr. had agreed upon, marked, and blazed in 1955 (the “1955 line”). Gillis further testified that after the purchase he filled in and maintained an area of land until 1995, when the Buchheits decided to build a house on their lots. In reliance on a 1944 recorded plat, the Buchheits in 1995 asserted entitlement to, and began exercising dominion over, an area encompassing the 1955 line and including land Gillis filled.

At the summary judgment stage, the Gillises sought recovery on theories that the boundary line had been established by acquiescence or by agreement and that they had obtained the disputed property as a parol gift of land. We reversed the trial court’s determination that, as a matter of law, the Gillises could not obtain a recovery under either theory. We held that material issues of fact existed as to both. Following remand, the Gillises abandoned the gift theory, and the question presented to the jury was whether the Gillises had acquired title to the disputed property by acquiescence or agreement.

As recognized in Gillis:

By law, “acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line.” OCGA § 44-4-6. Where a boundary line is disputed, uncertain, or unascertained, it may be established (1) by acquiescence for seven years pursuant to OCGA § 44-4-6, or (2) by agreement if the agreement is accompanied by actual possession of the line. [Cit.] However, in order to establish a boundary line under this Code section, the line must not be known or certain. [Cit.]

1. The Buchheits first complain of the trial court’s admission of the Gillises’ Exhibit 11.

This exhibit is a map of Rivers End subdivision. Gillis testified that Clarke, Sr. gave him the map when they visited the property in 1955, and that Clarke, Sr. made a mark on the map noting that the boundary line had been changed and affixed his signature to the map. The Buchheits contend that the trial court erred in overruling their hearsay objection to this document. “Ancient documents purporting to be a part of the transaction to which they relate shall be admissible in evidence.” Because Exhibit 11 qualifies as an ancient document, the court did not err in overruling the Buchheits’ objection.

2. The Buchheits contend that the trial court erred in denying their motions for directed verdict. They argue that there is no evidence that Clarke, Jr. agreed to a change in the boundary line, that the boundary line dividing the Buchheits’ lots from the Gillises’ is definite and ascertainable from the recorded plat, and that there was never any dispute between Gillis and the Clarkes concerning the boundary line.

These arguments are without merit. We determined in the prior appeal that there is evidence that the change in the boundary line was mutually agreed upon between Gillis and the Clarkes and that whether the recorded plat established the boundary line is a disputed issue. A boundary line which is “disputed, uncertain, or unascertained” may be established by acquiescence or agreement.

3. The Buchheits contend that the trial court erred in submitting a special verdict form to the jury, because the interrogatories contained therein were confusing and incorrect.

The special interrogatories required the jury to resolve the question of whether the Gillises had acquired title to the disputed property by acquiescence or agreement in accordance with the principles set forth in Gillis. We find no error.

4. Contrary to arguments advanced by the Buchheits, the trial court’s charge to the jury that actual possession up to the boundary line is not always necessary to show acquiescence in the line does not constitute a misstatement of Georgia law.

5. The Buchheits contend that the trial court erred in giving the Gillises’ Request to Charge No. 4 and in failing to give the Buchheits’ Request to Charge Nos. 1, 3, 8, 9, and 18. There is no merit in this contention.

As the Gillises’ fourth request to charge consisted of one of the principles quoted in Gillis, the court did not err by including it in the instructions to the jury. The Buchheits’ first and third requests to charge related to requirements that contracts for the sale of land be in writing and that deeds conveying land be recorded. The court did not err in refusing to give these requests, as they were not adjusted to the issues being tried. The Buchheits’ eighth and ninth requests to charge concerned the requirement that a boundary line be uncertain or unascertained in order to be established by acquiescence or agreement. These requests were fairly covered in the court’s charge to the jury on the principles taken from Gillis. The Buchheits have advanced no argument or citation of authority in support of their contention that the court erred in refusing to give their eighteenth request. Therefore, that claim of error has been abandoned.

Decided November 2, 2000

Reconsideration denied November 20, 2000

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Mary Kathryn Hogan, for appellants.

Donald E. Dyches, Jr., for appellees.

6. There is no merit in the Buchheits’ claim that a letter submitted by a juror after return of the verdict establishes that the jury improperly considered matters outside the record in returning its verdict.

In the letter, the juror speculated that the Buchheits should have won the case based on a theory not presented, complained about not having been provided with a written copy of the jury charge during jury deliberations, and expressed her opinion that the jurors’ sympathy toward the Gillises played a role in the verdict. This letter does not show any prohibited consideration of extrinsic matters by the jury.

7. We find no abuse of discretion in the trial court’s denial of the Buchheits’ motion for new trial on the general grounds, as there' is evidence to support the verdict.

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

       232 Ga. App. 126 (500 SE2d 38) (1998).

       Id. at 128-129 (1), (2).

       Id. at 128 (1).

       OCGA § 24-3-11.

       See McDay v. Metro. Life Ins. Co., 51 Ga. App. 791, 793 (181 SE 871) (1935).

        Gillis, supra at 128 (1).

       (Emphasis supplied.) Id.

       See Tietjen v. Dobson, 170 Ga. 123, 126-127 (3) (152 SE 222) (1930).

       Court of Appeals Rule 27 (c) (2).

        Crump v. McDonald, 239 Ga. App. 647, 650-651 (3) (520 SE2d 283) (1999).


text:
    A00A0969.
    CLARK v. THE STATE.
    (542 SE2d 588)
   Phipps, Judge.

Harvey Clark appeals his convictions for driving under the influence and driving on the wrong side of the road. He contends the trial court erred in failing to dismiss for cause a juror who was being represented in a divorce action by the law office of the part-time county solicitor. The solicitor did not participate in the trial of Clark’s case. Under the circumstances of this case, we find no manifest abuse of the trial court’s discretion and affirm.

“ ‘Whether to strike a juror for cause is within the discretion of the trial court and the trial court’s rulings are proper absent some manifest abuse of discretion.’ [Cit.]”

Before a juror is excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Cits.]

“ ‘A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.’ [Cit.]”

Under OCGA § 15-12-135 (a),

All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law. Relationship more remote shall not be a disqualification.

Georgia courts have also held that, “to preserve public respect for the integrity of the judicial process,” full-time law enforcement officers and employees of the prosecutor’s office must be automatically disqualified for cause when a timely challenge is posed. The Supreme Court of Georgia has expressly refused to extend the automatic disqualification rule to those less connected with law enforcement than full-time police officers.

In Cohen v. Baxter, the court approved the trial court’s refusal to automatically disqualify for cause a juror who was an ongoing patient of the defendant in a medical malpractice action. The Court explained:

Trial courts are often faced with jurors who have close relationships with parties in both civil and criminal cases. We have confidence that trial courts can ascertain whether a juror is partial because of a doctor-patient relationship with a defendant just as well as the trial court can determine bias arising from other sources. A per se rule cuts too broadly and is inconsistent with the traditional discretion given trial courts in this area. Furthermore, there are various close and confidential relationships that a juror may have with a party and the establishment of a per se rule to the doctor-patient relationship will open the door to the expansion of the per se rule to these other numerous categories. Finally, a per se rule may render it extremely difficult to obtain a full panel for a medical malpractice trial in some rural counties.

Given these guidelines, we find that the trial court was not compelled to automatically disqualify the juror for cause because he was a client of the law office of the solicitor.

The issue then becomes whether the trial court should have exercised its discretion to remove the juror. The test is whether the juror held an opinion of Clark’s guilt or innocence that was so fixed and definite that he would not be able to set it aside and decide the case based upon the evidence or the court’s charge upon the evidence. “The law presumes that potential jurors are impartial.” And the challenger bears the burden of rebutting the presumption. We inquire whether the record as a whole supports the trial court’s qualification of the juror.

Here, the defense asked during voir dire whether any members of the jury venire knew the solicitor. John Cook responded, “He was my lawyer.” He explained that although he had spoken to the solicitor about his pending divorce action, now the solicitor’s law firm, not the solicitor personally, was actually representing him. The defense moved to strike Cook for cause. Through further voir dire, the State elicited that he knew the solicitor only on a professional basis and did not know before jury selection that he had any connection to the trial. He stated that his dealings with the solicitor would have “no bearing ... at all” on his consideration of the case and that he could be fair and impartial. Although a juror’s opinion of his qualification is not determinative, the record supports the trial court’s decision to overrule Clark’s motion to strike Cook for cause.

Decided November 20, 2000.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.

L. Jack Kirby, Solicitor, Marla P. Chambless, Assistant Solicitor, for appellee.

Contrary to Clark’s argument, we also find that the trial court was not required to make a factual determination regarding Cook’s impartiality. Such a determination is required only when the prospective juror has a “compelling interest or bias in the case.” Lively v. State provides the seminal example in that regard. There, the prospective juror was listed on the State’s witness list and might be called in rebuttal. He knew the victim, who had been shot to death. He had been the victim’s employer, had counseled her regarding her erratic relationship with the defendant, had spoken with the defendant about the relationship, and had been a pallbearer at the victim’s funeral.

Voir dire did not show that Cook had a similarly compelling interest or bias in this case. Thus, we find that the court did not err in failing to make a specific factual determination regarding Cook’s impartiality.

Judgment affirmed.

Johnson, C. J, and Smith, P. J, concur.

        Nance v. State, 272 Ga. 217, 222 (6) (526 SE2d 560) (2000).

        Somchith v. State, 272 Ga. 261, 262 (2) (527 SE2d 546) (2000).

        Marneigh v. State, 242 Ga. App. 735, 741 (6) (531 SE2d 152) (2000).

       See also OCGA § 15-12-163 (b) (4) (the near kin of the prosecutor shall be dismissed for cause).

        Beam v. State, 260 Ga. 784, 786 (2) (400 SE2d 327) (1991); see Hutcheson v. State, 246 Ga. 13-14 (1) (268 SE2d 643) (1980); compare Scruggs v. State, 227 Ga. App. 35 (488 SE2d 110) (1997).

       See Floyd v. State, 272 Ga. 65, 67 (2) (525 SE2d 683) (2000) and cit.

       267 Ga. 422 (479 SE2d 746) (1997).

       Id. at 423-424 (1).

        Somchith, supra.

        Cohen, supra at 424 (2); see also Mooney v. State, 243 Ga. 373, 388 (2) (254 SE2d 337) (1979).

       Id.

        Nance, supra at 222.

       Kirby appears to concede in Ms brief filed on behalf of the State that he was representing Cook in the divorce matter.

       See Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992).

        Garland v. State, 263 Ga. 495, 497 (1) (435 SE2d 431) (1993); Matthews v. State, 268 Ga. 798, 800 (2) (493 SE2d 136) (1997).

       Supra.


text:
    A00A1489.
    HIMMEL v. THE STATE.
    (542 SE2d 557)
   Phipps, Judge.

A jury found Edmund J. Himmel guilty of vehicular homicide, serious injury by vehicle, and reckless driving. The court sentenced him separately for each offense. On appeal, Himmel claims that (1) the trial court erred by admitting evidence of three prior automobile accidents without conducting the hearing required by Uniform Superior Court Rule (USCR) 31.3, (2) he was denied effective assistance of counsel, and (3) the trial court erred by sentencing him on reckless driving. Because we cannot say that failing to conduct the USCR 31.3 hearing was harmless error, we remand the case to the trial court for the required hearing. We find that Himmel was not denied effective assistance of counsel. We find that the, trial court erred by sentencing Himmel on the lesser included offense of reckless driving and vacate the conviction and sentence on that charge.

On October 8, 1996, Andrea Johnson and two friends were driving north on Interstate 95 in Camden County, Georgia. Johnson noticed a red sports car, which she later determined was being driven by Himmel, going south on 1-95 at a very high rate of speed. She continued to observe the car in her rearview mirror and saw it slow down, make a u-turn, and begin traveling the wrong way in the middle of the interstate. Johnson put on her signal and began to slow down so that she could pull over. By the time she reached the emergency lane, she saw that the red car had started “clipping” cars traveling the other way. Johnson saw several cars swerve to avoid the red car before it hit a station wagon and then hit a gray car head on, causing it to veer off the side of the road. She then saw the red car hit a green car, causing it to spin around and land in the median. When it hit the green car, the red car caught fire and Himmel was thrown through the windshield.

Georgia State Patrol Officer Michael Young investigated the accident and determined that Himmel had been driving north in the southbound lane of the interstate. He first hit a gray Buick occupied by William and Dorothy Wilson almost directly head on. The impact caused the Wilsons’ car to veer off to the right and pushed Himmel’s car backward. A Toyota Célica sideswiped Himmel’s vehicle and veered off to the right. Finally, a Honda Accord driven by William Wilkinson struck Himmel’s car and landed in the median, severely damaged.

Johnson, a nurse’s aide, attempted to administer first aid to the occupants of the Honda (William and Kimberly Wilkinson) while they waited for emergency personnel to arrive. William Wilkinson was knocked unconscious by the impact, and Johnson pulled him from the car. Kimberly Wilkinson was trapped in the car, and Johnson and Kimberly’s husband, William, who had regained consciousness, were unable to get her out.

When emergency personnel arrived, they had to pull back the roof on the Honda to free Kimberly Wilkinson. She was severely injured and was flown to a hospital in Jacksonville, Florida, where she died several days later. The parties stipulated into evidence a medical report stating that her death was caused by multiple injuries sustained in the collision. Dorothy Wilson also was injured critically and was taken to the hospital. William Wilkinson suffered several fractured bones in his arm, leg, and foot and was taken to the hospital. Himmel also was injured and was flown to a hospital in Florida.

Dr. Nic Dalesandro, the coordinator of forensic services at Georgia Regional Hospital, examined Himmel pursuant to a court order that he be examined to assess his competency to stand trial and his responsibility for his actions at the time of the accident. Both Himmel and the State wanted the examination to be performed. Before questioning Himmel, Dr. Dalesandro advised him that he did not have to talk to him and that any information he disclosed could be made available to the court. After an initial interview, Dr. Dalesandro sent Himmel to Central State Hospital for a full neurological evaluation. The neurological assessments were largely within normal limits, although they indicated that Himmel has epilepsy. After a follow-up interview, Dr. Dalesandro determined that Himmel was competent to stand trial and that he was not suffering from any psychiatric or psychological disorder that would have affected his behavior. Dr. Dalesandro testified that Himmel told him that he had been involved in three prior automobile accidents caused by epileptic seizures. He testified that he did not know if Himmel’s epilepsy affected his behavior on the day of the accident.

Himmel testified that he had a valid Massachusetts driver’s license at the time of the accident. He described his earlier automobile accidents caused by his seizures, one of which involved injuries to a woman, her nine-month-old child, and Himmel. He said he did not tell the police investigating the prior accidents about his seizures because he did not want to lose his license.

The day before the accident at issue, Himmel left Massachusetts and drove for fifteen hours before stopping to get about four or five hours of sleep in his car and then continuing on to Georgia. Himmel testified that he remembered having the aura that usually precedes an epileptic seizure, pulling into the emergency lane, and trying to put his car into park. He claimed that he did not remember anything else until he woke up in the hospital in Jacksonville, Florida.

1. In his opening statement, the prosecutor told the jury that

what we found out in our investigation, after we found out that he had a history of seizures, was that this isn’t the first time that he has had a wreck and claimed that he had a seizure. In fact, specifically there were three prior instances, one only a few months prior to this crash in which he was involved in a wreck and claimed that he had a seizure that caused the wreck.

He explained that this information resulted in the addition of alternative counts in the indictment. One count was that Himmel drove in conscious disregard for the safety of other people by driving while knowing he was subject to having seizures that could cause unconsciousness and loss of voluntary control over his bodily movements.

Although he did not object to the prosecutor’s opening statement or to Dr. Dalesandro’s testimony about the prior accidents, Himmel claims on appeal that the State had an obligation to notify him before trial of its intent to use similar transaction evidence. We agree.

Before introducing evidence of similar transactions or occurrences, the State must provide written notice of its intent to use such evidence to defendant’s counsel and file it with the court at least ten days before trial, unless the time period is altered by the judge. The judge must then hold an evidentiary hearing to determine if the evidence should be admitted. The State concedes that no notice was given and no hearing was conducted.

Himmel’s failure to object to the lack of notice and the required hearing “does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of the issue on appeal.” But neither the State’s failure to give notice nor the trial court’s failure to conduct the required hearing automatically entitles the defendant to a new trial. Instead, we evaluate the error to determine if it was harmless.

We cannot say that the admission of evidence regarding Himmel’s prior accidents without benefit of a USCR 31.3 (B) hearing was harmless under the circumstances. We therefore remand the case to the trial court to conduct a USCR 31.3 (B) hearing. If the trial court determines that the State’s evidence of similar transactions does not demonstrate substantial relevancy for a proper purpose under the standards of Williams v. State, or if such relevancy is substantially outweighed by the danger of unfair prejudice, then Himmel is entitied to a new trial. If the court determines that the evidence is admissible under USCR 31.3 (B) and Williams, a new trial is unnecessary, and the judgment of the trial court shall be affirmed except as otherwise vacated in Division 3.

2. Himmel filed a motion for new trial asserting that his trial counsel was ineffective. After conducting a hearing on this claim, the trial court determined that his counsel was effective and that any deficiency alleged by Himmel would not have prejudiced his defense.

To establish ineffectiveness of trial counsel, Himmel must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The test for reasonable attorney performance is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .’ ”

We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard. Matters such as calling a particular witness, questioning on direct and cross-examination, making trial motions, and objecting to testimony are strategic and tactical decisions within the exclusive province of the attorney after consultation with the client.

(a) Initially, Himmel claims that Dr. Dalesandro could testify on behalf of the State only to respond to or rebut testimony of the defendant or the defendant’s mental health expert and that trial counsel therefore should have objected to the doctor testifying as part of the State’s case. This aspect of Himmel’s ineffective assistance claim was waived because it was not raised at the hearing on the motion for new trial.

Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.

(b) Himmel argues that his trial counsel should have investigated whether he was given a proper Miranda warning prior to his examination by Dr. Dalesandro and should have objected to the doctor’s testimony if no warning was given. At the motion for new trial hearing, Himmel’s trial counsel testified that Himmel received a Miranda warning when he arrived at the sheriff’s department in Camden County, after he was released from the hospital in Florida. Himmel, however, testified that he was never given a Miranda warning.

Evidence was presented that Himmel was given a Miranda warning at the time of his arrest, that he sought a psychiatric evaluation, and that before the psychiatric evaluation, Dr. Dalesandro reminded him that he did not have to answer any of his questions and that anything he said might be provided to the court. After the doctor’s warning, Himmel voluntarily participated in the evaluation. Because the trial court was authorized to find that Himmel’s counsel reasonably believed that Himmel had received a proper Miranda warning, the court’s determination that counsel did not render ineffective assistance on this issue was not clearly erroneous.

(c) Himmel asserts that his trial counsel was ineffective because he failed to object to Dr. Dalesandro’s testimony about his prior accidents that were caused by seizures. Although Himmel’s trial counsel did not object to the admission of the testimony, the failure to object under these circumstances does not constitute waiver, as recognized in Division 1. Because any error regarding the admission of the similar transaction evidence will be corrected on remand, we need not consider the impact of counsel’s failure to object to Dr. Dalesandro’s testimony.

(d) The following exchange transpired during Himmel’s cross-examination:

THE STATE: You didn’t mean for anybody to get hurt, Mr. Himmel?
HIMMEL: No, I didn’t, not at all.
THE STATE: Somebody did get hurt, didn’t they?
HIMMEL: Yeah, that’s what I heard, but I don’t —.
THE STATE: Well, you were in the same hospital with them, were you not?
HIMMEL: Yes.
THE STATE: Okay. And you knew they were hurt; is that right?
HIMMEL: Not until — not until I woke up and the doctors and nurses working on me in the emergency room told me — and then they — they told me about the accident. I didn’t know how many people were hurt at the time.
THE STATE: Are you sorry that people got hurt?
HIMMEL: Yes.
THE STATE: Okay. Have you ever told anybody that?
HIMMEL: When I saw the list of the papers of all — list of all the charges of all the State’s witnesses, including the victims, I was going to write to them or call them, but the lieutenant told me not to because otherwise they’d use that against me in court.
THE STATE: So you or your father or no one ever told the family of these people that you were sorry?
HIMMEL: No, not yet, but I do now.

Himmel contends that the prosecutor improperly commented on his right to remain silent.

We find that any deficiency in failing to object to the State’s cross-examination of Himmel did not prejudice the defense because there is no reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(e) Himmel argues that he did not want to testify and that he testified only because his trial counsel urged him to do so. At the motion for new trial hearing, Himmel’s trial counsel testified that he had informed Himmel that he could choose whether to testify. He also testified that Himmel had always taken the position that he wanted to testify because this “horrible accident . . . was simply an accident and he wanted to explain his version of the facts to the jury.”

The decision whether a defendant will testify in his own behalf at trial is a tactical one and as such will not be questioned by this court. Although Himmel and his counsel gave conflicting testimony at the motion for new trial hearing concerning Himmel’s desire to testify, “it was the function of the trial court hearing the evidence presented at the hearing on defendant’s motion for new trial to determine witness credibility and resolve these conflicts.”

(f) Himmel claims his trial counsel was ineffective because he failed to introduce evidence of any prior medical treatment he received for epilepsy or seizures. But Himmel testified at the motion for new trial hearing that he had discussed this issue with his trial counsel and had told him that he did not want him to introduce evidence from his prior treating physicians that he had been treated for epileptic seizures. Deciding what evidence to present is a matter of trial strategy and tactics, and tactical errors (assuming this was one) do not constitute ineffective assistance of counsel.

Decided November 20, 2000.

Lane & Crowe, Robert L. Crowe, for appellant.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

(g) Finally, Himmel complains of his trial counsel’s failure to file any requests to charge, and specifically, his failure to file a request to charge on the law of accident. At the motion for new trial hearing, Himmel’s appellate counsel asked his trial counsel if he had filed any requests to charge, and his trial counsel said that he had not. The failure to file a request to charge on accident was not argued or otherwise presented to the trial court; therefore, nothing is presented for review.

3. Himmel argues that the trial court erred in sentencing him on the lesser included offense of reckless driving because he also was sentenced on the greater offenses of homicide by vehicle in the first degree and serious injury by vehicle. The State concedes that Himmel should not have been sentenced on the reckless driving charge.

The traffic violations underlying the offense of vehicular homicide, including reckless driving, constitute lesser included offenses of vehicular homicide, and conviction of both offenses is proscribed under OCGA § 16-1-7. The offense of reckless driving therefore merged into the crime of first degree vehicular homicide. The trial court thus erred by sentencing Himmel on the lesser included offense of reckless driving. Accordingly, we vacate the conviction and sentence for reckless driving.

Judgment affirmed in part on condition, vacated in part and case remanded.

Johnson, C. J., and Smith, P. J., concur.

       USCR 31.1, 31.3.

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); USCR 31.3 (B).

        Riddle v. State, 208 Ga. App. 8, 11 (1) (b) (430 SE2d 153) (1993).

        White v. State, 213 Ga. App. 429, 431 (1) (445 SE2d 309) (1994).

       Id.

       Supra.

        White, supra.

       Id.

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       Id. at 687-689.

       (Citations omitted.) Stansell v. State, 270 Ga. 147, 150 (2) (510 SE2d 292) (1998).

        Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

        Kinney v. State, 234 Ga. App. 733, 738 (7) (c) (506 SE2d 441) (1998); Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995).

        Nance v. State, 272 Ga. 217, 220 (2) (526 SE2d 560) (2000).

        Thompkins v. State, 272 Ga. 835, 836 (2) (c) (536 SE2d 747) (2000); see also Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993).

        Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987).

        Buice v. State, 239 Ga. App. 52, 57 (3) (520 SE2d 258) (1999).

       See Watkins v. State, 206 Ga. App. 575 (426 SE2d 26) (1992).

        York v. State, 207 Ga. App. 494, 497 (3) (428 SE2d 113) (1993).

       (Citation omitted.) Id. at 498.

        Sewell v. State, 229 Ga. App. 685, 688 (1) (c) (494 SE2d 512) (1997).

        Smith v. State, 237 Ga. App. 852, 854 (4) (521 SE2d 7) (1999).

        Gilpatrick v. State, 226 Ga. App. 692, 695 (487 SE2d 461) (1997).

       Id.

        McNabb v. State, 180 Ga. App. 723, 725 (5) (350 SE2d 314) (1986).

       See Smith v. State, 272 Ga. 874, 881 (6) (e) (536 SE2d 514) (2000).


author: Eldridge, Judge.

text:
    A00A1524.
    McNEELY et al. v. WAL-MART STORES, INC.
    (542 SE2d 575)
   Eldridge, Judge.

Lestine L. McNeely and William R McNeely sued Wal-Mart Stores, Inc. for the slip and fall of Mrs. McNeely on April 26, 1997, in its Cornelia store just outside of the McDonald’s located therein. Mrs. McNeely fell in a pool of clear liquid. Wal-Mart performed safety sweeps two to four times per day where the employee checks the area where he or she worked; however, no such sweep had been performed within a reasonable time to inspect prior to the fall, giving rise to a jury issue as to constructive notice.

The key to Wal-Mart’s defense was an off-day employee eyewitness, whose testimony was impeached by a prior felony conviction and by disproving the facts to which he testified. The employee, Stephen Hightower, who was not working that day, testified by affidavit and by deposition that he was in the store as a customer, was sitting in the McDonald’s, saw the plaintiff fall, and saw water on the floor, eight to twelve inches in circumference. He testified that when he entered the area five to ten minutes earlier there had been no liquid on the floor. However, Hightower had been convicted in 1970 of possession of a controlled substance and in 1966 of felony breaking and entering in Orlando, Florida, and served a year in prison. He testified under oath that the breaking and entering charge had been thrown out when in fact he pled guilty to the charge to serve five years on probation. After reporting what he saw to Wal-Mart loss control personnel after the fall, he later asked for a promotion and received it along with a 400 per hour pay raise. Based upon High-tower’s testimony, the trial court granted summary judgment to WalMart. We reverse, because determination of interest and of the weight and credibility of a witness’s testimony and whether the witness has been impeached is uniquely for the jury as triers of the facts.

a. It was error for the trial court to grant summary judgment under the circumstances of this case, because the trial court usurped the jury’s function, the determination of impeachment and weight and credibility of an impeached witness. See Stephens v. Adkins, 226 Ga. App. 648, 649 (2) (487 SE2d 440) (1997); Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 25 (479 SE2d 410) (1996); Raven v. Dodd’s Auto Sales &c., 117 Ga. App. 416, 421 (3) (160 SE2d 633) (1968).

Under OCGA § 24-9-84, a witness may be impeached by evidence as to his general bad character. The conviction of an offense involving moral turpitude or a felony is a proper method of showing bad character and tends to impeach the credibility of that witness within the meaning of this Code section. Paradise v. State, 212 Ga. App. 166, 169 (3) (441 SE2d 497) (1994); Ailstock v. State, 159 Ga. App. 482, 486 (3) (283 SE2d 698) (1981). “The fact that a witness has been convicted of a crime involving moral turpitude is admissible for the purpose of discrediting his evidence. . . . Evidence which discredits a witness on the grounds of infamy tends to impeach him.” Ford v. State, 92 Ga. 459 (17 SE 667) (1893); see also Witcher v. Pender, 260 Ga. 248 (392 SE2d 6) (1990); Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984). “[T]he length of time which has passed since the date of a conviction is a matter affecting the weight rather than the admissibility of the conviction as impeachment evidence.” Id.; see also Grady v. State, 262 Ga. 682, 683 (3) (424 SE2d 781) (1993); Cook v. State, 255 Ga. 565, 576-577 (13) (b) (340 SE2d 843) (1986).

“The credit to be given a witness’s testimony where impeached for general bad character . . . shall be for the jury to determine.” OCGA § 24-9-85 (a).

It being the exclusive province of the jury to determine the credibility of all witnesses, when an effort is made by any of the methods pointed out by law to impeach a witness, the jury then becomes the triors of the credibility, respectively, of the witness sought to be impeached, and of the witness or witnesses by whose testimony the impeachment is attempted; and, accordingly, they have the right, under all the attendant circumstances and conditions, to determine whether credit shall be given to the witness whose credibility has been attacked, or to the witness or witnesses by whose testimony such attack is made, and thereupon decide whether the witness has or has not been impeached. (a) Under the previous rulings of this court, if a witness has been impeached, it is the duty of the jury to disregard his testimony, unless corroborated in material particulars. (b) The seeming conflict existing between those cases ruling, in substance, that, though a witness may be impeached and may not be afterwards corroborated, yet it must still be a question for the jury whether he is to be believed or not, notwithstanding the “impeachment,” and those cases holding that it is the duty of the jury to disregard the testimony of an impeached and uncorroborated witness, grows out of a failure, in applying the doctrine, to keep in mind the distinction between impeachment and an attempt to impeach, and as to the duty of the jury in dealing with the testimony of an impeached witness and that of a witness whose credibility has been attacked by way of impeachment. The incautious use of the terms “impeachment” and “attack upon the credibility” as synonymous, has caused most, if not all, of the difficulty. A witness is never impeached, in contemplation of law, until there is a mental conviction, produced upon the mind of the jury by proof, that he is unworthy of credit.

Decided November 20, 2000

Garcia & Powell, Kevin D. Gonzalez, Morris H. Wiltshire, Jr., for appellants.

McLain & Merritt, Howard M. Lessinger, Albert J. Decusati, for appellee.

Powell v. State, 101 Ga. 9, 10-11 (5) (29 SE 309) (1897); see also Gilreath v. State, 247 Ga. 814, 833-834 (14) (279 SE2d 650) (1981); Rowe v. State, 68 Ga. App. 161, 163-164 (4) (22 SE2d 210) (1942).

If a witness has been successfully impeached by evidence of conviction of a felony, then the credit, if any, is for the jury to determine under proper instructions from the trial court. Taylor v. Marsh, 107 Ga. App. 575, 576 (1) (130 SE2d 770) (1963). When the jury determines that a witness has been successfully impeached in any manner provided by law, the jury can disregard such witness’s testimony and exclude it in its entirety unless corroborated by circumstances or other unimpeached evidence. Kicklighter v. State, 76 Ga. App. 246, 251-252 (2) (45 SE2d 719) (1948). OCGA § 24-9-85 (b).

b. Further, under OCGA § 24-9-68, the interest of a witness and his feeling toward a party, his employer, “may always be proved for the consideration of the jury” regarding weight and credibility. See Canada v. Shropshire, 232 Ga. App. 341, 342-343 (501 SE2d 860) (1998). The jury could consider whether Hightower had an interest in providing testimony favorable to his employer that insulated it from liability and whether he received a promotion and pay increase as a reward for such testimony. See Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401) (1990).

c. Under oath, Hightower testified that the felony breaking and entering charge was dismissed; however, plaintiff provided evidence that in fact Hightower pled guilty to such charge. A jury was entitled to conclude that Hightower’s testimony had been disproved and that he had wilfully and knowingly sworn falsely. OCGA §§ 24-9-82; 24-9-85 (b); Kelley v. State, 233 Ga. App. 244, 250 (4) (503 SE2d 881) (1998); Perguson v. State, 221 Ga. App. 212, 215 (2) (470 SE2d 909) (1996); Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119) (1992).

Judgment reversed.

Johnson, C. J., Pope, P. J., Blackburn, P. J., Smith, P. J., Barnes and Phipps, JJ., concur.


author: Blackburn, Presiding Judge.

text:
    A00A2156.
    ROWE v. THE STATE.
    (542 SE2d 578)
   Blackburn, Presiding Judge.

Horace Rowe appeals the trial court’s denial of his motion to withdraw his plea of guilty to armed robbery, contending that the plea was not intelligently and voluntarily given. Specifically, Rowe argues that (1) he made the plea based upon a mistaken presumption that he would receive a probated sentence and (2) his attorney told him that, if he did not plead guilty, he would receive a sentence of twenty years to serve as opposed to the ten years he received pursuant to the plea. For the reasons set forth below, we affirm.

An accused may withdraw a guilty plea at any time before judgment is announced. See OCGA § 17-7-93 (b). But after sentence is pronounced, as here, permission to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and the court’s decision will not be disturbed unless that discretion is manifestly abused.

Dalton v. State.

After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

(Punctuation omitted.) Holman v. State.

The State showed that Rowe’s plea was entered voluntarily and intelligently, and the trial court’s discretion was not abused in this case. Rowe chose to plead guilty to armed robbery during his trial, shortly after three compatriots testified that he was involved in the crime. Rowe testified that he understood the nature of the charges against him as well as the contents of the plea form he signed. He further testified that his attorney discussed the plea with him, explaining to him that he would receive a mandatory minimum sentence of ten years for armed robbery and that he would have to serve every day of those ten years. Rowe also testified that he understood the nature of the rights he would be waiving by pleading guilty and that his attorney discussed these rights with him.

Decided November 20, 2000.

Robert L. Ferguson, for appellant.

Furthermore, although Rowe contends that his attorney told him that he would absolutely receive a 20-year sentence if his trial continued, Rowe’s attorney testified that he advised Rowe only that a 20-year sentence was a possibility, not a certainty. As the trial court appropriately pointed out, this issue raises a question of credibility, and, as such, it was properly decided below and will not be considered here. McCloud v. State.

Rowe also argues for the first time on appeal, without separately enumerating the error, that his trial counsel rendered ineffective assistance by failing to fully inform him about the implications of his plea. However,

[o]ur Supreme Court has stated that an ineffective assistance of trial counsel claim must be raised at the first practicable moment. Bailey v. State. The Court has further held that a claim of ineffective counsel must be raised before appeal if an opportunity to do so is available. Glover v. State If the opportunity to present such a claim was available, “the failure to seize that opportunity is a procedural bar to raising that issue at a later time.” Id.

Wilcox v. State

In this case, Rowe failed to raise his claim at the earliest practicable moment. As Rowe’s trial attorney did not handle the motion to withdraw the guilty plea, Rowe’s new attorney could have filed the ineffective assistance claim at that time. Because the claim was not filed, it was waived. Wilcox, supra.

Therefore, the evidence of record shows that Rowe’s guilty plea was both freely and intelligently entered, and the trial court properly denied Rowe’s subsequent motion to withdraw that plea.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

        Dalton v. State, 244 Ga. App. 203, 205 (534 SE2d 523) (2000).

        Holman v. State, 236 Ga. App. 111, 114 (2) (511 SE2d 240) (1999).

        McCloud v. State, 240 Ga. App. 335, 336 (2) (525 SE2d 701) (1999).

        Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1991).

        Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

        Wilcox v. State, 236 Ga. App. 235, 239 (4) (511 SE2d 597) (1999).


text:
    A00A2208.
    JONES v. THE STATE.
    (542 SE2d 584)
   Blackburn, Presiding Judge.

Billy Frank Jones appeals the sentence rendered by the trial court after he entered a nonnegotiated plea of guilty to a misuse of a firearm while hunting charge. Jones contends that his sentence of two years to serve and eight years probation is cruel and unusual punishment and that the trial court erred in requiring restitution despite his financial inability. For the reasons set forth below, Jones’ sentence is affirmed in part and reversed in part.

Jones was indicted on charges of felony murder, misuse of a firearm while hunting, and hunting on the land of another without permission. Jones pled guilty to the charge of misusing a firearm while hunting, and a nolle prosequi order was issued on the other charges. The indictment set forth that Jones:

did use a firearm in a manner constituting a gross deviation from the standard of care which a reasonable person would exercise in the situation, to wit: defendant Billy Frank Jones did shoot his firearm at Scott Dewayne Wilson, a human being who was wearing a fluorescent orange vest required by law and who did not give a reasonable person the impression of being wildlife, and said defendant Billy Frank Jones did shoot Scott Dewayne Wilson without taking reasonable care to ascertain what said defendant was shooting and did thereby cause serious bodily harm to wit: a gunshot wound to the chest of Scott Dewayne Wilson by shooting while consciously disregarding a substantial and unjustifiable risk that the said act would cause harm to or endanger the safety of another person, in violation of OCGA § 16-11-108 (a).

Wilson died of the gunshot wound inflicted by Jones.

The State’s proffer at the plea hearing indicated that Jones was in a tree stand approximately 78 yards from Wilson when Jones thought he saw movement, looked through his scope, and fired. Wilson’s friend, Steve, heard someone calling for help and came looking for Wilson. Steve noticed Jones and said, “I heard my friend call for help. I heard the gunshot. Have you seen anybody?” Jones replied that he had not heard or seen anybody. Steve then ran back into the woods to find the other person with whom he was hunting in order to continue the search for Wilson. After Steve left, Jones went to find out what he had shot. When he discovered that he had shot a person, he left the scene to go find his son, who was also hunting that day. Jones and his son went to the police department to report the shooting.

Jones testified that he “fired at the movement. . . . [W]here I shot was covered up with vines like a tunnel. Amd I really just guessed at it. . . .1 thought it was a coyote.” Corporal Hall with the Department of Natural Resources testified that the shooting was the result of gross negligence.

1. Jones contends that the trial court’s sentence which required that he serve two years, of his ten-year sentence, in prison constituted cruel and unusual punishment. Jones argues that his sentence is cruel and unusual because he is a 68-year-old man who is disabled with a heart condition. His doctor testified that incarceration would shorten Jones’ life to a number of weeks.

Initially, we note that where the sentence is within the statutory limits, “[[legislative discretion must be deferred to unless, under the circumstances, the sentence shocks the conscience.” (Punctuation omitted.) McCrosky v. State. See also Lambeth v. State. In the present case, the sentence is within the statutory guidelines. OCGA § 16-11-108 (a) pertinently provides that if serious bodily harm to another person results from the misuse of a firearm while hunting, a felony has been committed and a person convicted thereof shall be punished by “imprisonment for not less than one nor more than ten years.” Because Jones’ sentence is within the statutory limits, we must determine if this sentence shocks the conscience.

Here, Jones recklessly murdered Wilson, violating both the safety etiquette required of hunters and, more importantly, the fundamental norms of a civilized society. There is no crime more egregious than the senseless homicide of a human being, and we decline to accept Jones’ argument that a sentence of two years to serve is too great a cost for such a severe transgression. Jones’ sentence does not shock the conscience. It is well under the statutory maximum sentence allowed and is not grossly out of proportion to the severity of the crime. See McCrosky, supra. Jones’ grossly negligent acts caused the death of another human being. Incarceration for two years as a result of criminally negligent acts causing the death of another is not out of proportion. The medical testimony concerning Jones’ health addressed itself to the sound discretion of the trial court. We cannot say that the trial court abused its discretion in sentencing Jones to incarceration notwithstanding Jones’ medical condition.

2. Jones contends that the trial court failed to consider the guidelines set out in OCGA § 17-14-10 when ordering restitution. The trial court ordered Jones to pay $384,890.31 in restitution. Jones is required to pay $300 per month during the term of his probation. The trial court also provided that any sums remaining at the end of Jones’ probation would be subject to a lien, permitting recovery from any assets coming into Jones’ possession in the future.

(а) OCGA § 17-14-10 requires that in determining the nature and the amount of restitution the trial court shall consider:

(1) The present financial condition of the offender and his dependents; (2) The probable future earning capacity of the offender and his dependents; (3) The amount of damages; (4) The goal of restitution to the victim and the goal of rehabilitation of the offender; (5) Any restitution previously made; (б) The period of time during which the restitution order will be in effect; and (7) Other appropriate factors which the ordering authority deems to be appropriate.

In the present case, two hearings were held. The initial hearing primarily dealt with the trial court’s acceptance of Jones’ guilty plea. However, at the end of the hearing, with little more than a cursory mention during the attorneys’ arguments regarding restitution, the trial court ordered restitution in the amount of $384,789.80. The record is clear that in ordering restitution, at that point, the trial court had failed to make the necessary findings as required by OCGA § 17-14-10. Thereafter, Jones’ counsel filed a motion to modify the trial court’s sentence due to the trial court’s failure to afford Jones a restitution hearing. The hearing held thereafter addressed the appropriateness of Jones’ sentence to serve two years and the amount of restitution.

At the hearing, the trial court made it clear that its position with regard to restitution had been decided and that the hearing was a mere formality. The trial court noted:

I think that I’ve already informally talked to both [defense counsel] and [the prosecutor] and told you that I was going to grant a restitution hearing in the case. Even though I felt like it had essentially been covered at the time of the sentencing hearing, that I’ll still go ahead and allow you to present whatever you want to present in that respect.

Later during the same hearing the trial court noted: “Well, I’m not going to re-argue restitution. I’m going to let you present what you want to present in the way of additional restitution evidence at that time.” After the hearing, the trial court made specific findings regarding the factors outlined in OCGA § 17-14-10. With regard to Jones' monthly income and main expenses: Jones' Social Security benefits, $1,000; Jones' wife’s Social Security benefits, $300; Jones’ prescription drug expenses, $318.93; health insurance premiums for Jones’ wife, $450; and utilities, $150. The trial court’s order did not reflect any consideration of Jones’ counsel’s proffer regarding Jones’ monthly expenses of $88 for Billy Jones’ medical insurance, $158 for Jones’ cancer insurance, and approximately $650 for food, clothes, and other necessities. The trial court made no findings and no evidence was presented regarding rent or mortgage payments, property taxes, or insurance. In its order, the trial court delineated the damages of: funeral bill, $7,534.76; monument expense, $1,043.25; and the present cash value of victim’s anticipated future earnings, $376,212.30.

. In ordering restitution in the amount of $300 per month, the trial court relied on the fact that defense counsel urged imposition of a home confinement program, in lieu of incarceration, which would cost Jones $10 per day. The trial court reasoned that Jones was therefore able to make that same payment as restitution. The trial court stated:

[A]t the time of the sentencing hearing, it was stated in the record . . . that you urged that [Jones] go under a home confinement program that would have cost $10 a day for him to be in that program. And I find it appalling here today to say that he could pay $10 a day to stay out of jail but he can’t pay $10 a day in restitution.

In fact, however, the record reflects that counsel had said that Jones’ “family [would] help support him as far as paying for the house arrest.” During the second hearing, Jones’ counsel argued to the trial court, that Jones’ family and friends would help support him in order to pay for the house arrest program because Jones could not afford it.

OCGA § 17-14-10 (7) allows the trial court to consider appropriate factors in awarding restitution. Voluntary payments by friends and family of the defendant, however, are not appropriate considerations because such payments can be terminated at any given time with or without cause. The trial court’s focus on voluntary payments by family members was inappropriate. The record reflects that the trial court failed to take into consideration any state-imposed charges in connection with the restitution payments which it ordered. The trial court must consider any such charges in determining whether Jones is able to pay restitution and, if so, in what amount. Because the trial court did not consider the proper elements as required by law, we remand this case for a new hearing on the issue of restitution consistent with this opinion.

Decided November 20, 2000.

Peter J. Ross, for appellant.

James R. Osborne, District Attorney, Elizabeth L. Larson, Assistant District Attorney, for appellee.

[T]hree things are required in order to impose restitution as a condition of probation: (1) a restitution hearing; (2) consideration of the factors outlined in OCGA § 17-14-10; and (3) findings of fact. . . . Under OCGA § 17-14-9, “the amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages,” which are further defined in OCGA § 17-14-2 (2) as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced.”

Anderson v. State.

We further note that any order requiring restitution would not bar a civil action against Jones to recover damages for Wilson’s wrongful death. See OCGA § 17-14-11. In a civil action, Jones’ ability to pay would not be relevant to the amount of damages awarded.

(b) The trial court also erred in allowing that any restitution sums not paid in full during the term of defendant’s probation be subject to a lien. OCGA § 16-11-108 (a) allows for a maximum imprisonment of ten years. Jones was sentenced to ten years. A court may order restitution only as a condition of any relief, see OCGA § 17-14-3, such as probation. See Morrison v. State. When Jones’ probation is completed, the court does not have the authority to continue restitution payments or impose a lien. Therefore, the trial court’s order establishing a lien after the term of Jones’ probation was also error.

Judgment affirmed in part and reversed in part and remanded with direction.

Eldridge and Barnes, JJ, concur.

        McCrosky v. State, 234 Ga. App. 321, 323 (3) (506 SE2d 400) (1998).

        Lambeth v. State, 257 Ga. 15 (354 SE2d 144) (1987).

        Anderson v. State, 226 Ga. App. 286 (486 SE2d 410) (1997).

        Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622) (1987).


author: Mikell, Judge.

text:
    A00A2293.
    McKINNEY v. JENNINGS.
    (542 SE2d 580)
   Mikell, Judge.

This is an appeal from the grant of a stepparent adoption. The trial court entered a decree allowing Alvin L. Jennings to adopt the natural child of Randy McKinney. McKinney, who was incarcerated at the time the decree was entered, challenges the adoption on due process grounds.

As a preliminary matter, we note that McKinney has attached to his brief documents which have not been certified by the clerk of the trial court as a part of the appellate record, in violation of Court of Appeals Rule 23 (i). Because the attached documents are not part of the record, we will not consider them in this appeal.

Additionally, McKinney has failed to include a statement of the applicable standard of review in his brief as required by Court of Appeals Rule 27 (a) (3). The appropriate standard of review in a case where a parent’s rights to his child have been severed is “whether [,] after reviewing the evidence in the light most favorable to the appellee [Jennings], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citation and punctuation omitted.) In the Interest of W.W. C., 210 Ga. App. 492 (436 SE2d 685) (1993).

So viewed, the record shows that Brandon Dominique McKinney was born on August 27, 1989. The child’s biological parents, Randy McKinney and Erika Nesbitt Jennings, were not married at the time of the birth, and McKinney did not take steps to legitimate the child. According to Ms. Jennings, McKinney was convicted of a “serious sexual criminal offense” prior to the child’s second birthday and was incarcerated for several years, during which he did not attempt to contact his child or Ms. Jennings. Following his release, McKinney was incarcerated again as a repeat sexual offender and is currently incarcerated at the Manning Correctional Institute in Columbia, South Carolina. According to Ms. Jennings, McKinney has never attempted to communicate with the child, nor has he provided for the care and support of the child. McKinney has not registered with the Putative Father Registry.

Jennings is the child’s stepfather and has supported Brandon financially and emotionally since his marriage to the child’s mother on May 25, 1996.

Jennings filed a petition for adoption on November 29,1999. Service was attempted at Perry Correctional Institute in Pelzer, South Carolina, which was McKinney’s last known address; however, the attempt was unsuccessful because McKinney had been transferred to a different facility. He was finally served on February 9, 2000. McKinney mailed an objection on February 14, which was filed on February 23. The court held a hearing on Jennings’ petition on February 17, 2000, and entered a decree of adoption that same day.

Decided November 20, 2000.

Mark R. Gaffney, for appellant.

Randy McKinney, pro se.

1. Initially, we must resolve Jennings’ motion to dismiss McKinney’s appeal. McKinney first filed a notice of appeal pro se; however, he failed to perfect service on Jennings as required by OCGA § 5-6-32. The court below subsequently appointed appellate counsel who filed an amended notice of appeal, which was properly served on Jennings. OCGA § 5-6-48 (a) provides that failure to perfect service “shall not work dismissal” of an appeal. Therefore, Jennings’ motion to dismiss McKinney’s appeal is denied.

2. McKinney first argues that he was denied due process of law because he was not given 30 days notice of the adoption hearing. Jennings filed his petition for adoption pursuant to OCGA § 19-8-10 (b), which provides that surrender of parental rights is not required in cases where the natural parent, for a period of one year or longer and without justifiable cause, has significantly failed to communicate with the child or to provide for the care and support of the child. OCGA § 19-8-10 (c) provides that in cases where there has been no prior surrender or termination of parental rights, the natural parent must receive service of the petition for adoption as specified in OCGA § 19-8-14. That statute requires a period of at least 30 days between service of the petition on the natural parent and the final adoption hearing.

In the case sub judice, McKinney was served on February 9, 2000, and the court held the final hearing eight days later, on February 17. Therefore, McKinney was not afforded the 30-day period mandated as a prerequisite to the termination of his parental rights and the stepparent adoption of his natural child. It is well settled that adoption laws must be strictly construed in favor of natural parents. Jones v. Sauls, 213 Ga. App. 55, 58 (3) (c) (443 SE2d 693) (1994). Thus, we reluctantly vacate the decree of adoption and remand the case to the trial court to conduct a hearing in accordance with OCGA § 19-8-14.

3. Based on our holding in Division 2, we need not reach McKinney’s second enumeration of error in which he challenges the court’s conclusion that his significant lack of communication with and support of his child rendered surrender of parental rights unnecessary.

Judgment vacated and remanded.

Pope, P. J., and Miller, J., concur.

Latina H. Bryan, for appellee.

Alvin L. Jennings, pro se.


text:
    A00A2315.
    WHITE v. THE STATE.
    (542 SE2d 582)
   Blackburn, Presiding Judge.

Following a jury trial, Edward David White appeals his conviction for the robbery of the Favorite Market convenience store, contending that the evidence was.insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [White] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

Viewed in this light, the record shows that, around 12:00 a.m. on April 15, 1999, White entered the Favorite Market. White attempted to buy a beer, and the clerk, Amanda Hayes, told him that he could not purchase alcohol on Sunday. White then brought some breath mints to the counter, handed Hayes $1, and waited for her to open the register. When the register was opened, White reached across the counter, grabbed $264 out of the register, and fled. Hayes testified that the store was well lit and she got a good look at White’s face. Hayes identified White as the perpetrator from a photo array and at trial.

The trial court also admitted similar transaction evidence that, around 7:00 a.m. on the same day, White entered the Fueling Around convenience store and committed a similar robbery. The clerk of this store, Linda Dalton, testified that White placed 31(2 on the counter, pretended that he wanted to purchase a pack of gum, and waited for her to open the register. When the register was opened, White shoved Dalton out of the way, grabbed money out of the register, and fled the store. Several customers chased after White, but he got away in his gray station wagon. Detective Terrence Holcomb arrived shortly after the robbery, spotted White’s station wagon, and chased him down the interstate at speeds exceeding 100 mph. Detective Holcomb, however, aborted the chase because he believed the safety of other drivers on the road was being jeopardized.

Decided November 20, 2000.

Jerry W Moncus, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

After the chase, White crossed the state line into Tennessee and abandoned his station wagon in Chattanooga. Holcomb identified the abandoned car as the one he had chased, and he found White’s employee identification in the car. Dalton identified a shirt found in the car that White was wearing when he robbed Fueling Around. Both Dalton and Holcomb positively identified White as the person who robbed Fueling Around and fled from the scene, respectively.

Finally, similar transaction evidence was presented regarding White’s robbery of a Golden Gallon convenience store on October 12, 1994. White, who pled guilty to this robbery, stated that he approached the clerk, asked for change, and began grabbing money when the register was opened. White then ran out of the store and drove away. He was later apprehended.

As the evidence against White in this case was overwhelming, we find that the judgment against him was amply supported. See Jackson, supra. Although White testified that he did not commit the robbery, it is well settled “that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.” (Punctuation omitted.) Cooper v. State. Here, the jury rejected White’s alibi, and this Court has no discretion to question that determination.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Kovacs v. State, 227 Ga. App. 870, 871 (1) (490 SE2d 539) (1997).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Cooper v. State, 232 Ga. App. 461, 462-463 (1) (502 SE2d 306) (1998).


author: Ellington, Judge.

text:
    A00A1054.
    SMITH v. GWINNETT COUNTY et al.
    (542 SE2d 616)
   Ellington, Judge.

In August 1997, Grady Smith was convicted in the Recorder’s Court of Gwinnett County of violating two county ordinances. Smith appeals from the Gwinnett County State Court’s order affirming his convictions. Finding that the state court lacked jurisdiction to consider the convictions, we reverse.

1. In his first enumeration, Smith challenges the jurisdiction of the state court to consider a petition for writ of certiorari from a criminal conviction in the Recorder’s Court of Gwinnett County. Smith asserts that the superior court had exclusive jurisdiction to consider the petition.

(a) Initially, we reject the appellees’ claim that Smith has waived his opportunity to challenge the state court’s jurisdiction. The appellees argue that Smith invoked the jurisdiction of the state court by erroneously filing his petition for writ of certiorari there, then failed to challenge the state court’s jurisdiction prior to this appeal.

Although Smith did not challenge subject matter jurisdiction below, a judgment on a matter not within a court’s jurisdiction is void, and the issue may not be waived. Bowers v. Estep, 204 Ga. App. 615, 616 (1) (420 SE2d 336) (1992). This is true even if the complainant on appeal is the party who filed the petition for writ of certiorari in the wrong court. Therefore, Smith has not waived his opportunity to raise the issue of the state court’s jurisdiction on appeal.

(b) In comparing the distribution of appellate jurisdiction between Georgia’s state and superior courts, we note that the superior courts have broad appellate jurisdiction. Under OCGA § 15-6-8, superior courts are authorized to “exercise appellate jurisdiction from judgments of the probate or magistrate courts,” to exercise general supervision over “all inferior tribunals,” and to review and correct the judgments of magistrates, municipal courts, probate courts, “[a]ny inferior judicature,” and “any person exercising judicial powers.” OCGA § 15-6-8 (3), (4) (A)-(E); see also Franklin v. Recorder’s Court, City of Albany, 174 Ga. App. 498 (330 SE2d 429) (1985). Further, in 1933, the Georgia Legislature enacted general laws which specifically provided that a party who is dissatisfied with an inferior court’s decision may petition the superior court for a writ of certiorari. OCGA § 5-4-3. “The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers.” OCGA § 5-4-1 (a). See Code 1933, § 19-101; Cochran v. City of Rockmart, 242 Ga. at 733; see also OCGA §§ 15-6-9 (1); 15-10-65. Based upon these statutes, the Supreme Court of Georgia has ruled that the proper procedure for appealing decisions from a county’s recorder’s court is by certiorari to the superior court. Kariuki v. DeKalb County, 253 Ga. 713, 715 (1) (324 SE2d 450) (1985), overruled on other grounds, Russell v. City of East Point, 261 Ga. 213, 214 (403 SE2d 50) (1991).

(c) In contrast to superior courts, state courts are courts of limited jurisdiction with authority to review decisions of other courts only as provided by law. OCGA § 15-7-4 (a) (6). In 1977, the legislature provided that the Gwinnett County State Court “shall have jurisdiction as the superior court of appeals from the justice’s courts of said county.” (Emphasis supplied.) Ga. L. 1977, pp. 3331, 3333, § 3 (а) . By failing to include consideration of petitions for writs of certiorari, this statute excludes such appellate jurisdiction. See Crews v. Roger Wahl, C.P.A., PC., 238 Ga. App. 892, 896 (2) (520 SE2d 727) (1999) (applying the principles of statutory construction, expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded)).

Further, since 1981, references to “justices of the peace and their courts” in local laws refer to magistrate courts, not recorder’s courts. OCGA § 15-10-123; see also Ga. Const. 1983, Art. VI, Sec. X, Par. I (б) ; Ga. L. 1983, p. 884, § 2-1. In fact, recorder’s courts are specifically exempted from statutes governing magistrate courts. OCGA § 15-10-122; see also Ga. Const. 1983, Art. VI, Sec. X, Par. I (5), (6).

Accordingly, we find no authority which grants Gwinnett County State Court jurisdiction to consider a petition for writ of certiorari from a conviction in the recorder’s court. The state court’s judgment is void. Bowers v. Estep, 204 Ga. App. at 616 (1).

2. The remaining enumeration of error is moot.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

Decided November 21, 2000.

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

Michael V. Stephens II, Karen G. Thomas, for appellees.

       This Court granted Smith’s application for discretionary appeal pursuant to OCGA § 5-6-35 (j).

       The parties agree that, when challenging his convictions on the county ordinances, Smith relied on a 1972 law creating the Recorder’s Court of Gwinnett County, which provided that review of final orders from the court “shall be by certiorari to the State Court of Gwinnett County in the manner prescribed by law for certiorari from justice courts.” Ga. L. 1972, pp. 3125, 3131, § 17. The appellees concede that this law is superseded by OCGA § 15-6-8 (4) (C), which grants the superior courts authority to review and correct judgments of inferior'judicatures. See Division 1 (b), infra; see also OCGA § 5-4-1 (a); Cochran v. City of Rockmart, 242 Ga. 732, 733 (251 SE2d 259) (1978) (once the legislature passed a general law giving superior courts jurisdiction over writs of certiorari from inferior courts, it had no power to pass a special law on the same subject).

       But cf. Zornes v. State, 262 Ga. 757 (426 SE2d 355) (1993). In Zornes v. State, the defendant filed a direct appeal in the Gwinnett County Superior Court from a DUI conviction in the recorder’s court. The Supreme Court of Georgia held that the superior court properly dismissed the appeal for lack of jurisdiction. Id. at 759 (2). Although the Court implied that the state court may have had jurisdiction to consider a petition for writ of certiorari from the recorder’s court in the DUI case, it did not decide the issue or address the issues raised in the instant appeal.


author: Pope, Presiding Judge.

text:
    A00A1445.
    JOSEPH v. HOME DEPOT, INC. et al.
    (542 SE2d 618)
   Pope, Presiding Judge.

George Joseph sued the Home Depot and its employee, Rhonda Trammel, for malicious prosecution and false imprisonment. The trial court granted the defendants’ motion for summary judgment, and Joseph appeals. For the following reasons, we affirm in part and reverse in part.

The record establishes that on August 28, 1997, a person identifying himself as George Joseph presented a check to Home Depot. This person presented a driver’s license with the name “George Joseph” on it. The check bore the address: “685 Martin Luther King Drive, Wilkes Hall, Room 203, Atlanta, GA 30314.” Despite the fact that the unknown perpetrator identified himself as Joseph, the check which Home Depot received bore a different driver’s license number from Joseph’s license.

NationsBank dishonored the check because it was drawn on an account which had been closed before the date on which the check was presented. Trammel, who worked in the bookkeeping department of the store, submitted an affidavit in which she avowed that she tried to contact Joseph by phoning him at the number that was printed on the check, but she was unsuccessful. Trammel then sent a certified letter regarding the check to the Martin Luther King Drive address. Several days later, on September 12, 1997, she received the return receipt, which indicated that someone had signed for and received the letter. Nevertheless, the record contains a copy of the certified letter, which was marked “Return to Sender Unable to Forward.”

Although Joseph once lived at the Martin Luther King Drive address, this address was an on-campus school dormitory located at Morris Brown College where he lived for only a semester. By early 1996, before the check was written or Home Depot had sent the certified letter, Joseph was living at another address. Although Joseph testified that he filed a change of address with the post office, he testified that he did not receive this letter.

After receiving the signed receipt, Trammel requested the magistrate court to issue a citation regarding the check. In her affidavit submitted with her motion for summary judgment, Trammel stated that she did not know Joseph at the time she requested the citation and that she did not bear him any ill will or malice.

Joseph claims that the first he knew of any problems with Home Depot was when he received this notice from the Gwinnett County court. This citation — which Joseph admits he received — instructed him to appear in court on December 5, 1997. Joseph testified that after receiving the citation, he went to the Gwinnett court and spoke with the magistrate clerk. Joseph recalled that he told the clerk that he had not written the check and that it was not his signature on the check. After speaking with the magistrate clerk, Joseph went to the police department and reported his checks lost or stolen. The police report documenting this visit is dated November 4, 1997. There is evidence that on December 5,1997, Joseph returned to court with all of the documents he had which demonstrated that he had not written the check. Joseph testified that he spoke with a judge, who advised him to go to Home Depot with his documents. According to his deposition testimony, Joseph followed the judge’s instructions, went to Home Depot and spoke with the supervisor there. Joseph asked to speak with Trammel, who was listed as complainant on the citation. Joseph then gave the Home Depot supervisor his driver’s license and his Social Security card, and the supervisor made a copy of these documents. Joseph testified that he also gave his name, his address and his phone number to this Home Depot employee.

The court scheduled a hearing on the matter for January 2, 1998. The court again sent the notice to the Martin Luther King Drive address, and Joseph testified that he did not receive this notice. Trammel appeared at the hearing, but Joseph did not. The magistrate issued a warrant for Joseph’s arrest. On a later date, Newton County police stopped Joseph for a traffic violation. Because there was a warrant outstanding for his arrest, they arrested him. He was held for a total of 77 hours in jail before being released. Eventually, the charges against Joseph were nolle prossed.

1. Joseph argues that the court erred in concluding that defendants were entitled to tort immunity under OCGA § 16-9-20. We agree that given the evidence in this case, Home Depot and Trammel were not immune from liability.

OCGA § 16-9-20 (h) (1) states in pertinent part:

Any party holding a worthless instrument and giving notice in substantially similar form to that provided in subparagraph (a) (2) (B) of this Code section shall be immune from civil liability for the giving of such notice and for proceeding as required under the forms of such notice. . . .

Subsection (h) (1) provides an exception to the notice requirement when the bank refuses payment of the instrument on the basis of no account existing at the bank at which the instrument was drawn.

Subsection (a) (2) (A) of OCGA § 16-9-20, which provides the guidelines for giving notice, states:

Notice mailed by certified or registered mail or statutory overnight delivery evidenced by return receipt to the person at the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received as of the date on the return receipt by the person making, drawing, uttering, executing, or delivering the instrument.

Several cases construe the immunity provisions of OCGA § 16-9-20. In Stallings v. Coleman, 165 Ga. App. 667 (302 SE2d 412) (1983), the factual context presented to the court was similar to that presented here. In Stallings, the plaintiff was arrested on a bad check charge. Coleman followed the appropriate statutory procedures and sent the appropriate notice to Stallings. Nevertheless, there was evidence that when Stallings received the notice, he contacted Coleman’s agent and informed her that the check was one which had been stolen from him. Nonetheless, a warrant for his arrest issued after he did not respond to the statutory notice.

In determining that the immunity did not apply to the defendant, the Stallings court focused on the language of the statute. The court noted that for the immunity to attach, it must appear that the notice was sent and that, as now set forth in subsection (h), the holder of the check proceeded "under the forms of such notice.” Thus, because there was evidence that Stallings gave the exculpatory information to the defendant’s agent and because there was no showing that the defendant forwarded the information to the police, the court determined that the defendant had not shown his entitlement to the immunity. Id. at 668 (1). See also Wilson v. Wheeler’s, Inc., 190 Ga. App. 250, 254-255 (2) (378 SE2d 498) (1989); Tallman v. Hinton, 220 Ga. App. 23, 25 (2) (467 SE2d 596) (1996).

Similarly, here the immunity does not apply because there is evidence that Joseph presented information to Home Depot which showed that he did not write the check and that he was the victim of fraud. Nevertheless, Home Depot continued to prosecute him. Accordingly, there was a factual issue as to whether the defendants “acted maliciously in failing to request that the prosecution be terminated after learning what had actually happened.” (Punctuation omitted.) Stallings, 165 Ga. App. at 668 (2).

Our decision is bolstered by the decision in Nicholl v. Great A & P Tea Co., 238 Ga. App. 30, 37 (2) (517 SE2d 561) (1999) (physical precedent only), in which the court focused on the statutory language in determining that the immunity did not apply when an unknown perpetrator had written checks on a fraudulent checking account using plaintiff Nicholl’s identity to pass the checks. The Nicholl court determined that the plaintiff, who was the victim of financial identity fraud, was not affected by the immunity provisions, stating: “immunity under OCGA § 16-9-20 (h) (1) applies only to suits by those who ‘made, drew, uttered, executed, or delivered such instrument,’ and not to persons who were the victims of “ ‘financial identity fraud.’ ” Id. at 38 (2). But see Grand Union v. Edwards, 217 Ga. App. 154 (456 SE2d 736) (1995) (immunity applied where exculpatory information was provided to the defendant after the arrest warrant issued).

2. Joseph claims that the court erred in granting summary judgment because a factual issue remains as to whether defendants maliciously prosecuted him. He contends that the court wrongly concluded as a matter of law that defendants had probable cause to pursue the investigation. Again, we agree.

The elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff.

(Citations and punctuation omitted.) Medoc Corp. v. Keel, 166 Ga. App. 615-616 (1) (305 SE2d 134) (1983). See also OCGA § 51-7-40.

With respect to the element of lack of probable cause, this court has said: “Want of probable cause is the gravamen of an action for malicious prosecution; and there can be no recovery by the plaintiff when there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives.” (Citations omitted.) Nicholl, 238 Ga. App. at 33, citing Kviten v. Nash,150 Ga. App. 589, 591 (4) (258 SE2d 271) (1979).

Although probable cause does not mandate absolute verification, the defendant must act with a certain level of reasonableness in beginning the prosecution. “The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so.” (Citation omitted.) Nicholl, 238 Ga. App. at 34, citing Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981).

Similarly, in this case, there was a jury question as to whether a reasonably prudent person would have made further inquiry to determine the identity of the perpetrator before prosecuting and as to whether Home Depot lacked probable cause to continue the prosecution after Joseph presented the exculpatory documents. See generally Branson v. Donaldson, 206 Ga. App. 723, 726 (3) (426 SE2d 218) (1992). The evidence showed that Joseph went to Home Depot with documents which indicated that he did not write the check and that the return of the certified letter had indicated the Martin Luther Ring Drive address was not Joseph’s home. These factors created a jury issue.

3. Although summary judgment was improper with respect to Joseph’s claim for malicious prosecution, it was properly granted on his claim for false imprisonment. In Williams v. Smith, 179 Ga. App. 712, 713 (2) (348 SE2d 50) (1986), the court explained:

False imprisonment is an intentional tort, not a tort of negligence. In an action to recover damages for illegal arrest or false imprisonment the only essential elements are the arrest or detention and the unlawfulness thereof. With regard to the element of unlawfulness in the tort of false imprisonment, the law has always made a fundamental distinction between a detention effectuated pursuant to process and detention which is not predicated on process. An action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and cannot be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be. . . . Where the arrest is by valid process regularly sued out, action for malicious prosecution is the only remedy.

(Citations and punctuation omitted; emphasis in original.) Id. at 714. See also Ridgeview Institute v. Handley, 224 Ga. App. 533-534 (1) (481 SE2d 531) (1997); Reese v. Clayton County, 185 Ga. App. 207 (363 SE2d 618) (1987). In this case there was no evidence of invalid process, and the court properly granted summary judgment on the false imprisonment count.

Decided November 21, 2000

Frank M. Gaither, Sr., for appellant.

Drew, Eckl & Farnham, George R. Moody, Michael R. Merlino II, for appellees.

Judgment affirmed in part and reversed in part.

Miller and Ellington, JJ, concur.

       Although Stallings was decided under the predecessor to OCGA § 16-9-20 (Code Ann. § 26-1704), the provisions pertinent to our inquiry are the same.

       Although under subsection (h) (1) there is a requirement that Home Depot notify the maker of the check when there is no account with the bank, we do not analyze this issue because the evidence indicated that Joseph was not the maker of the instrument.

       Financial identity fraud is set forth in OCGA § 16-9-120 et seq., which was effective July 1, 1998. OCGA § 16-9-121 provides the elements of the offense:
      A person commits the offense of financial identity fraud when without the authorization or permission of another person and with the intent unlawfully to appropriate financial resources of that other person to his or her own use or to the use of a third party he or she ... (2) Accesses or attempts to access the financial resources of the other person through the use of identifying information (including checking account numbers).