author: Blackburn, Judge.

text:
    A98A1124.
    PICH v. THE STATE.
    (504 SE2d 64)
   Blackburn, Judge.

Timothy Pich appeals his conviction of aggravated assault, contending that the trial court erred in refusing to charge the jury on the lesser included offense of reckless conduct. We must disagree and affirm Pich’s conviction.

On February 16, 1997, two groups of individuals started fighting in the parking lot of a bowling alley. One group, of which Pich was a member, consisted of a number of men in training for the military. The other group consisted of local high school students. As the fight ensued, someone fired a gun, and both Kenneth Liston, one of the high school students, and Christopher Waters, one of Pich’s friends, were wounded. Several witnesses testifying for the State identified Pich as the shooter. All such witnesses testified that Pich intermittently shot into the air and at the ground. Some of these witnesses testified that Pich pointed the gun at the fighting crowd, but not while he was shooting the gun. Pich, however, testified that he did not have a gun on the evening of the incident and that he did not do the shooting that night. Several of Pich’s friends also testified that Pich was not carrying a gun on the evening in question.

Pich requested that the trial judge instruct the jury on reckless conduct as a lesser included offense of aggravated assault. The trial judge, however, refused Pich’s request, finding that such request was inconsistent with Pich’s defense that he never possessed a gun on the night of the incident. Pretermitting the issue of whether or not the evidence authorized a charge on reckless conduct, we review the appropriateness of defendant’s request to charge on such crime.

Decided July 1, 1998.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

“[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. The state or the accused may, by written application to the trial judge at or before the close of the evidence, request him or her to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his or her failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.” (Punctuation and emphasis omitted.) State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

While defendant did verbally request a charge on reckless conduct, no formal written request was submitted to the court as required by law. We note further that the trial court went out of its way to bring this issue to defendant’s attention. The defendant stated that he objected to the refusal to charge on reckless conduct, but failed to submit a written charge thereon. Here, “the record does not contain a copy of the requested charge; therefore, the requested charge is not available to this court for timely review. ... It was essential to the review of this enumeration that we have timely access, either in the record or transcript, to appellant’s written request for charge. When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” (Punctuation omitted.) Ogles v. State, 218 Ga. App. 92 (1) (a) (460 SE2d 866) (1995). Accordingly, the trial court properly refiised to charge the jury on reckless conduct. We affirm Pich’s conviction.

Judgment affirmed.

McMurray, P. J., and Eldridge, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    A98A1174.
    SUPERGLASS WINDSHIELD REPAIR, INC. et al. v. MITCHELL.
    (504 SE2d 38)
   Blackburn, Judge.

Superglass Windshield Repair, Inc. and several members of its board of directors appeal the trial court’s grant of Walter D. Mitchell’s motion to enforce a settlement agreement with regard to his action for misappropriation of trade secrets, breach of contract, breach of fiduciary duties, fraud, and conversion of certain windshield repair technology. For the reasons set forth below, we affirm.

“The issues raised in this appeal are analogous to those in a motion for summary judgment. Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (454 SE2d 180) (1995). Our review is de novo. (Cit.) Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995). To prevail, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” (Punctuation omitted.) Ballard v. Williams, 223 Ga. App. 1 (476 SE2d 783) (1996).

On January 21, 1997, Mitchell filed this action against Super-glass, David A. Casey, William C. Costello, S. Martin Agnew, Jr., and Ramona W. Agnew. All of the individuals named were members of Superglass’ board of directors. The defendants filed a joint answer and counterclaim on February 26, 1997; however, such answer was timely only for Superglass, itself, as the time in which the individual defendants could file answers had expired. On April 16, 1997, Mitchell filed a motion for a default judgment against the individual defendants based on their failure to answer, and a hearing on the motion was scheduled for June 4, 1997.

Prior to the hearing, the parties entered into settlement negotiations. On June 2, 1997, Sherry Judson Waites II, counsel for defendants, sent a proposed settlement agreement to Mitchell’s attorney, Randolph G. Rich. A settlement was not reached at that time, however, and further discussions ensued. According to Mitchell, the only remaining settlement term left under contention at that time was whether payments to be made to him pursuant to the agreement would survive his death.

On the morning of June 4, 1997, the day of the default hearing, the parties continued to discuss the settlement, and they apparently reached an agreement as to all essential terms. When the hearing on the motion for default judgment commenced, Rich, who was accompanied by Waites, informed the judge that they had settled the case, but did not disclose the terms thereof. Waites made no statement to the contrary. Although Waites now claims that, in his mind, there were still several items that had not been determined, he said nothing to this effect at the default hearing, and he said nothing to Rich or Mitchell on that day either. On that same day, Waites transmitted a letter by facsimile to Rich which stated: “This letter confirms that Bill Mitchell and the defendants in this case agreed this morning to the terms of settlement. The Settlement Agreement will incorporate the following [ten] essential terms, which were agreed to this morning. . . . Please find enclosed the proposed Settlement Agreement which incorporates the terms 1-10 above. Let me know at your earliest convenience whether this is acceptable.” (Emphasis supplied.) In addition, Mitchell testified that he and Casey, Superglass’ president, talked after the hearing about their relief that the case had been settled.

The revised settlement agreement to which Waites referred in his June 4, 1997 letter included the ten essential terms agreed upon by the parties; however, it also included a number of terms which the parties had never discussed and which were neither included in the June 2, 1997 draft of the agreement nor listed on Waites’ June 4, 1997 letter. These new terms mainly included provisions for damages and remedies in case the agreement were violated. Although Mitchell contends that he never agreed to the unilateral changes made by Waites, he agrees that the remaining terms, as reflected in Waites’ June 4, 1997 letter, were accepted by him.

In response to this revised settlement agreement, Mitchell suggested eight changes to the June 4, 1997 draft of the agreement to Rich’s secretary while Rich was out of town. Mitchell testified that these changes were suggestions only and that he merely intended to discuss them with Rich. However, in Rich’s absence, his secretary conveyed Mitchell’s list to Waites on June 12, 1997. On June 19, 1997, Waites responded to Mitchell’s suggested changes, indicating that he believed some would be acceptable to the defendants while others would not be. In this letter Waites stated: “You must know that these items are not negotiable other than what is stated herein. If these concessions do not satisfy your client, then the settlement is off.” After further disagreement culminating in a purported revocation of the settlement by Waites, Mitchell filed a motion to enforce the settlement on August 20, 1997, which the trial court granted.

1. In its first enumeration of error, the defendant contends that no settlement was ever consummated in this action. We disagree.

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing. . . . Tidwell v. White, 220 Ga. App. 415, 417 (2) (469 SE2d 258) (1996). See also Penny Profit Foods v. McMullen, 214 Ga. App. 740, 741 (2) (448 SE2d 787) (1994). The writing requirement may be satisfied by letters or documents prepared by the attorneys showing the terms of the agreement. Id.” (Punctuation omitted.) Ballard, supra at 2. Furthermore, “[o]ral settlement agreements are enforceable if their existence is established without dispute, but where the very existence of the agreement is disputed, it may only be established by a writing.” (Punctuation omitted.) Reichard v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241) (1992).

In this case, there was both an oral settlement agreement which occurred on June 4,1997 and writings setting out the essential terms of that agreement, namely the June 2, 1997 and June 4, 1997 settlement agreements along with Waites’ June 4, 1997 correspondence listing ten essential terms forming the backbone of the settlement. In the latter, Waites stated without reservation that the parties had agreed to the terms of their settlement. In addition, Mitchell has indicated that he accepted the terms of Waites’ settlement offer, except for the terms which had not been discussed and which Waites unilaterally inserted into the June 4, 1997 proposed settlement agreement. Therefore, as of June 4, 1997, a settlement had been reached, without regard to any subsequent correspondence between the parties regarding further modifications. Waites’ suspicious denial, after the fact, that he personally did not think that a binding agreement had been entered into makes no difference. “A party’s denial that an agreement was reached is, however, immaterial where it is undisputed that the attorney for the party denying the agreement communicated acceptance of the settlement offer.” (Punctuation omitted.) Penny Profit Foods, supra at 742. We also point out that the subsequent negotiations by the parties after settlement was reached with regard to other terms relating to default and damages does not vitiate the June 4, 1997 settlement.

2. In its second enumeration of error, Superglass contends that the trial court erred in its construction of the settlement agreement based on the correspondence passed between the parties. In essence, the trial court merged the settlement agreement proposed by Waites on June 2, 1997 with the terms listed in his June 4, 1997 letter. Almost the same result may be achieved by taking the June 4, 1997 proposed settlement agreement and deleting the terms inserted unilaterally by Waites. Either way, the agreement fashioned by the trial court incorporates those terms which the parties discussed prior to settlement. We find this construction to be reasonable.

As explained above, the settlement agreement in this matter became binding on the morning of June 4, 1997, as all essential terms had been agreed on at that time. Based upon Mitchell’s testimony as well as the unequivocal statements made by Waites in his June 4, 1997 letter, the court correctly determined that the settlement reached by the parties consisted of the June 2, 1997 settlement agreement as modified by the essential terms accepted on June 4, 1997. Waites’ correspondence clearly indicates that such terms formed the settlement, and Mitchell agrees that the trial court’s order accurately reflected the settlement which he had accepted. Furthermore, as noted above, subsequent negotiations by the parties after settlement was reached with regard to other terms relating to default and damages does not vitiate the June 4, 1997 settlement. Accordingly, the trial court did not err in its construction of the terms of the settlement.

Decided July 1, 1998.

Kirby L. Turnage, Jr., for appellants.

Rich & Smith, Randolph G. Rich, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A98A1424.
    MERRITT v. ATHENS CLARKE COUNTY, GEORGIA.
    (504 SE2d 41)
   Eldridge, Judge.

This is an appeal from the grant of summary judgment in an action under 42 USCS § 1983 brought by Farris L. Merritt, plaintiff-appellant. Merritt, a former county prisoner, brought his action for cruel and unusual punishment as an Eighth Amendment violation of his rights under the United States Constitution through “acts [and] omissions sufficiently harmful to evidence deliberate indifference to serious medical needs,” while a prisoner under state sentence in the Athens Clarke County jail. Estelle v. Gamble, 429 U. S. 97, 106 (97 SC 285, 50 LE2d 251) (1976). Athens Clarke County is the defendantappellee.

While serving a sentence for drunk driving, plaintiff injured his right, ring finger on June 8, 1991. On June 21, 1991, plaintiff made the first written request to employees of the sheriff for medical attention for his finger. However, between June 2,1991 and June 16,1991, plaintiff made ten requests for medical attention without reference to his finger; between June 2 and June 7 plaintiff made six medical requests for “pain pills” and the seventh requesting aspirin.

On June 21 and 22, 1991, plaintiff saw the Athens Clarke County-furnished physician, Dr. Clark, for his finger; the physician made an appointment for plaintiff to see an orthopedist at the defendant’s expense. On July 2,1991, plaintiff was taken by the sheriff’s office to the Athens Orthopedic Clinic where he wás examined by Dr. Moye. According to the plaintiff’s hearsay testimony, Dr. Moye diagnosed plaintiff’s finger as having a torn tendon. According to plaintiff’s hearsay testimony, Dr. Moye told the escorting deputy, in whose custody plaintiff was, that the finger required surgery very soon before permanent damage occurred and requested that plaintiff be returned within two to three days so that Dr. Moye could perform surgery. There was no evidence that Dr. Moye communicated such information in writing or by telephone to either the sheriff, head jailor, Dr. Clark, or any official for Athens Clarke County. Dr. Moye was never deposed nor did he provide an affidavit stating that plaintiff’s permanent loss of the use of his finger was caused by the failure to operate upon the tendon within the time that plaintiff remained in the custody of Athens Clarke County. Plaintiff’s witness, Dr. Safyer, who had previously performed a medical inspection for another similar suit, gave an affidavit and report, which went only to the medical policy, practices, and conditions at the Athens Clarke County jail at the time the report was made on November 12, 1990, prior to plaintiff’s sentence.

On July 8, 1991, plaintiff was transported to the Georgia Diagnostic & Classification Center in Jackson, Georgia, where, as a state prisoner, he could have adequate medical treatment for his injured finger. After arriving at Georgia Diagnostic on July 8, plaintiff did not see or request to see a physician. Plaintiff saw the head physician, Dr. Cowl, approximately one week later and was told that they were not going to operate on his finger. While at the Georgia Diagnostic Center, plaintiff was not seen again by any physician.

On August 7, 1991, plaintiff was released from Georgia Diagnostic. On August 9, 1991, after returning to Athens, plaintiff testified that he went to see Dr. Moye. Plaintiff gave hearsay testimony that Dr. Moye told him that it was too late to correct the damage to the tendon and that he could operate on the nerve only to relieve pain, which operation was performed in October 1992. Thus, the record is silent as to competent and admissible evidence for purposes of summary judgment from Dr. Moye as to causation of plaintiff’s permanent injury and Dr. Moye’s proposed treatment on July 2.

All of plaintiff’s enumerations of error raise in different ways the same issue, i.e., that the trial court erred in granting summary judgment on the 42 USCS § 1983 action for an Eighth Amendment violation through deliberate indifference in providing medical care to the plaintiff as a prisoner. We do not agree.

(1) “To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, supra, it must be shown that [Merritt’s] treatment was ‘so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.’ Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986).” Alford v. Osei-Kwasi, 203 Ga. App. 716, 722-723 (418 SE2d 79) (1992); accord Webb v. Carroll County, 229 Ga. App. 584 (494 SE2d 196) (1997); Cantrell v. Thurman, 231 Ga. App. 510 (499 SE2d 416) (1998).

“Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” (Punctuation omitted.) Alford v. Osei-Kwasi, supra at 718-719, citing Whitley v. Albers, 475 U. S. 312, 319 (106 SC 1078, 89 LE2d 251) (1986); accord Webb v. Carroll County, supra at 584-585; see also Cantrell v. Thurman, supra at 512. “Also, delay in access to medical care that is tantamount to unnecessary and wanton infliction of pain may constitute deliberate indifference to a prisoner’s serious medical needs.” (Citations and punctuation omitted.) Adams v. Poag, 61 F3d 1537, 1544 (11th Cir. 1995); see also Brown v. Hughes, 894 F2d 1533, 1537 (11th Cir. 1990). All of these cases require knowledge of the medical needs of the plaintiff and the intentional refusal to provide such necessary care in order for such conduct to constitute “deliberaté indifference” as an Eighth Amendment violation within Estelle. Our cases have consistently held that “knowledge of the need for medical care” and “an intentional refusal to provide that care” constitute “deliberate indifference.” (Emphasis supplied.) Carswell v. Bay County, 854 F2d 454, 457 (11th Cir. 1988); Ancata v. Prison Health Svcs., 769 F2d 700, 704 (11th Cir. 1985). “But the question whether [certain treatment] — or additional diagnostic techniques or forms of treatment — is indicated is a classic example of a matter for medical judgment. A medical decision not to order [certain treatment or diagnostic tests], or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court.” Estelle, supra at 107.

(2) For plaintiff to recover under 42 USCS § 1983 for a violation of the Eighth Amendment that caused him injury, there must be evidence in the record showing that, in this case, the constitution was actually violated; that the violation was a knowing and intentional act under the color of state action, i.e., the existence of a governmental policy of deliberate indifference; and that such violation proximately caused his injury. Collins v. City of Harker Heights, 503 U. S. 115, 120-124 (112 SC 1061, 117 LE2d 261) (1992). A governmental entity, Athens Clarke County, can be held liable for a governmental policy only when there is a constitutional violation and such violation is shown to causally produce the injury; the policy must cause the constitutional violation as the “moving force.” Monell v. Dept. of Social Svcs., 436 U. S. 658, 690-694 (98 SC 2018, 56 LE2d 611) (1978). If the government itself is to be held liable, as opposed to holding its employees liable individually, then such liability must arise from a governmental policy of action or inaction that caused the constitutional violation, as well as the injury. Liability cannot be imposed under 42 USCS § 1983 based upon the doctrine of respondeat superior, alone, in any event. “The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” (Emphasis in original.) Bryan County v. Brown, 520 U. S. _, _ (117 SC 1382, 137 LE2d 626, 639) (1997); Monell, supra at 691-695. Some employee or agent must intend to act or refuse to act based upon such governmental policy.

The evidence of the mere existence of a policy, alone, that could violate the constitutional rights of the plaintiff if carried into effect is insufficient to establish that a constitutional violation of plaintiff’s rights occurred. A causal connection between such policy and plaintiff’s injury must be shown by competent evidence. Government does not act or fail to act in a vacuum; its policies are implemented by employees or agents. The evidence in the record must show that such government policy was, in fact, implemented by an employee or agent and that such implementation of the unconstitutional policy did, in fact, cause his injury. Thus, the evidence must show that specific acts or omissions in implementation of the policy caused plaintiff’s injury and were not the result of independent acts of employees outside the policy that were individually negligent or vindictive or that such injury was not the result of independent third-party action, i.e., failure of the Georgia Diagnostic & Classification Center to treat the plaintiff while the tendon in his finger could still be repaired surgically without permanent damage.

Thus, the threshold issue as to governmental, constitutional liability must be the existence or absence of an actual constitutional injury caused by the Athens Clarke County employee, employees, or agent and not merely a potential or possible violation. Absent a constitutional violation causing the injury, no action exists. “Because we conclude that a determination by the jury that City personnel were not deliberately indifferent to [the plaintiff’s medical] needs would not have been against the great weight of the evidence, we need not consider whether any deficient City policy existed. [Cits.]” (Emphasis supplied.) Hardin v. Hayes, 52 F3d 934, 939, n. 8 (11th Cir. 1995); see also City of Los Angeles v. Heller, 475 U. S. 796, 799 (106 SC 1571, 89 LE2d 806) (1986). “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” (Emphasis in original.) Id.

Thus, evidence of Athens Clarke County’s past violation of other prisoners’ Eighth Amendment rights as to medical care, i.e., Dr. Safyer’s report, does not establish that the same violation occurred with the plaintiff or that, if it did, it caused his injury. At most, the evidence in the record established the objective, deliberate indifference through policy but not the subjective, causative act through carrying out such policy. For purpose of summary judgment only, we will assume that such past governmental policy continued to exist at the time of plaintiff’s injury; however, we cannot, absent evidence in the record, assume from the existence of such policy that the policy was, in fact, implemented in plaintiff’s case, causing his injury. There must be evidence to show that the policy was implemented and that such intentional implementation of the policy caused plaintiff’s injury.

Thus, under Estelle, the constitutional violation of “deliberate indifference” can be established only after determining two components: (1) whether evidence of a serious medical need existed, and (2) whether the defendant’s response to that need amounted to deliberate indifference. Farmer v. Brennan, 511 U. S. 825 (114 SC 1970, 128 LE2d 811) (1994); Adams v. Poag, supra. Deliberate indifference has an objective and a subjective element, both of which must exist to establish a constitutional violation. The objective deliberate indifference is evidenced by the existence of a governmental policy, while the subjective deliberate indifference is the actual act or omission pursuant to such policy by a governmental employee that caused plaintiff’s injuries. Farmer v. Brennan, supra at 851 (Blackmun, J., concurring). Therefore, the alleged violation of the Eighth Amendment turns upon whether there has been a subjective deliberate indifference displayed by a jailor/prison official by act or failure to act, pursuant to the policy, toward the plaintiff. Wilson v. Seiter, 501 U. S. 294, 296-299 (111 SC 2321, 115 LE2d 271) (1991); Hardin v. Hayes, supra at 939.

(3) Such threshold question of constitutional violation “mandate[s] inquiry into a [jailor or] prison official’s state of mind.” Farmer v. Brennan, supra at 826, quoting Wilson v. Setter, supra at 299. As to the definition of deliberate indifference, “[w]e hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, supra at 837; accord Yizar v. Ault, 265 Ga. 708, 709 (462 SE2d 141) (1995). Thus, absent evidence in the record that a jailor/prison official acted or failed to act, despite knowledge of the substantial risk of harm to plaintiff of permanent injury under the policy, there is a failure by the plaintiff on summary judgment to come forward with evidence of subjective deliberate indifference, although there may be evidence of objective deliberate indifference. Hardin v. Hayes, supra at 939; see also Farmer v. Brennan, supra; Cottrell v. Caldwell, 85 F3d 1480, 1490-1491 (11th Cir. 1996); Adams v. Poag, supra at 1537.

Under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), after the defendant-movant demonstrates the absence in the record of any evidence or favorable inference for the respondent giving rise to a material issue of fact as to one essential element of plaintiffs claim, the plaintiff must come forward with evidence as to such missing essential element to create an issue of fact for the jury or suffer the grant of summary judgment against him. OCGA § 9-11-56 (e). Plaintiff, in this case, failed to come forward with some admissible evidence to create a material issue of fact as to the intentional act or omission of defendant’s agents or employees: that defendant’s agents or employees had with knowledge of the serious medical need of the plaintiff to have surgery in order to avoid permanent injury; failed to provide surgery to the plaintiff; and such failure was the cause of plaintiffs permanent injury.

Further, the Georgia appellate courts have held “to prevail on an Eighth Amendment claim, an inmate must show not only the infliction of cruel and unusual punishment but also must show a culpable state of mind on the part of prison officials” (Emphasis supplied.) Van Alstine v. Merritt, 222 Ga. App. 734, 735 (1) (476 SE2d 6) (1996); Johnson v. Jones, 178 Ga. App. 346, 348 (343 SE2d 403) (1986). “Mere negligence alone is inadequate to support [cruel and unusual conduct].” Van Alstine v. Merritt, supra at 735; see also Estelle, supra at 107; Wilson v. Seiter, supra at 305. Absent evidence in the record as to a culpable state of mind of the jailor or jailers to establish a constitutional violation, and absent evidence as to the actual causation of the permanent injury, the trial court properly granted summary judgment. Monell, supra at 692.

Decided July 1, 1998.

Thomas M. Strickland, Benjamin C. Free, for appellant.

McLeod, Benton, Begnaud & Marshall, Andrew H. Marshall, Michael C. Pruett, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A1432.
    GULF ATLANTIC MEDIA OF GEORGIA, INC. et al. v. ROTH.
    (504 SE2d 47)
   Blackburn, Judge.

Defendants Gulf Atlantic Media of Georgia, Inc. and Carl J. Marcocci appeal the denial of their motion to set aside the voluntary dismissal filed by plaintiff Jerry Roth a/k/a Jerry Rogers. For the reasons discussed below, we affirm.

On November 7,1990, Roth sued defendants in Chatham County Superior Court, claiming that defendants fraudulently induced him to enter into an employment agreement with Gulf Atlantic, and that defendants breached a stock purchase agreement. On March 22, 1995, the trial court granted defendants’ motion for partial summary judgment as to Roth’s claim for fraudulent inducement. This ruling was affirmed by this Court on September 12, 1995.

On May 7, 1996, the trial court entered a consolidated pre-trial order, limiting the issues to be tried to Roth’s claims for breach of contract and attorney fees. On September 23, 1996, Roth moved to amend the pre-trial order to allow him to raise certain additional issues. On October 2, 1996, defendants filed a motion to dismiss Marcocci as a defendant or to amend the pre-trial order to reflect that Gulf Atlantic was the only remaining defendant. On November 6, 1996, the trial court signed an order granting defendants’ motion. This order was entered in the docket at 8:41 a.m. on November 7. At 1:59 p.m. on November 7, Roth filed a voluntary dismissal without prejudice of his complaint pursuant to OCGA § 9-11-41 (a).

Six months later, on May 7, 1997, Roth refiled his action against defendants, this time in the State Court of Chatham County. The new complaint reasserted the claims made in the original complaint, including the fraudulent inducement claim for which defendants had received partial summary judgment, which judgment was subsequently affirmed by this Court.

On June 13, 1997, defendants filed a motion in superior court, in the first lawsuit, seeking to set aside the voluntary dismissal. This motion was denied on February 2, 1998, and defendants appeal.

Decided July 1, 1998.

Generally, the voluntary dismissal of an action deprives the trial court of jurisdiction, and “[ajfter this dismissal, a court has no power to order reinstatement of the action.” (Punctuation omitted.) Lotman v. Adamson Contracting, 219 Ga. App. 898 (467 SE2d 224) (1996). “[Tjhere is an exception to the general rule that the filing of a voluntary dismissal before verdict divests the court of jurisdiction: A plaintiff cannot dismiss an action between the time the court announces its judgment and the time the judgment is actually written and entered.” (Emphasis in original.) Id. at 899. Defendants contend that this exception is applicable in this case, rendering the purported dismissal invalid.

It is not necessary to address the merits of this argument, however, as defendants have waived any right to contest the validity of the voluntary dismissal by acquiescing therein. After Roth filed the voluntary dismissal on November 7, 1996, defendants took no action to challenge such dismissal for more than seven months. It was not until a month after Roth had refiled his action in state court that defendants moved to set aside the dismissal of the former case. It cannot be said that this delay was not prejudicial to Roth. Had defendants challenged the dismissal in a timely fashion, Roth could have taken action to appeal the trial judge’s rulings with respect to the dismissal of Marcocci as a defendant.

If defendants believed that Roth’s voluntary dismissal was invalid, they were obligated to challenge the dismissal in a timely manner. Instead, they took no action for approximately seven months. A party cannot sit quietly for seven months, allow a plaintiff to institute a new action, and then claim that the plaintiff’s dismissal of the prior action was invalid. See Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 478 (2) (491 SE2d 909) (1997); ETI Corp. v. Hammett, 152 Ga. App. 1 (262 SE2d 211) (1979).

This ruling upholds the validity of the voluntary dismissal as a termination of the prior lawsuit. The status of the pending state court action is not at issue in this appeal. Although Roth contends that the rulings in the prior action, including the grant of partial summary judgment to defendants on the fraudulent inducement claim, have no effect whatsoever, we note that the summary judgment ruling was appealed to this Court and affirmed. However, as the preclusive effect of that ruling in the state court case is not an issue in this appeal, we do not consider it here.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.

Oliver, Maner & Gray, James P. Gerard, Timothy M. O’Brien, for appellants.

McCallar & Associates, C. James McCallar, Jr., Todd E. Schwartz, for appellee.


author: Andrews, Chief Judge.

text:
    A98A1480.
    FULLER v. THE STATE.
    (504 SE2d 62)
   Andrews, Chief Judge.

Harold D. Fuller appeals from the trial court’s refusal to vacate the recidivist portion of the sentence he received after entering a guilty plea.

In a single indictment, Fuller was charged with thirty counts of burglary, one count of aggravated assault, and seven counts of misdemeanor traffic offenses. Prior to trial, he entered a negotiated guilty plea to twenty-nine counts of theft by taking, one count of burglary, and one count of obstruction of an officer. Pursuant to the negotiated plea, he was sentenced on December 20, 1996, to confinement for a total of 40 years with no eligibility for parole under the recidivist provisions of OCGA § 17-10-7 (c).

After the sentence was entered, Fuller moved for the trial court to vacate the portion of the sentence that applied the recidivist provisions of OCGA § 17-10-7 (c) and rendered him ineligible for parole. After a hearing, the trial court denied the motion and rejected Fuller’s contention that the State failed to give him adequate advance notice of the prior felony convictions it relied upon for recidivist sentencing purposes.

We need not address Fuller’s notice argument. Because the evidence produced by the State failed to show that the recidivist provisions of OCGA § 17-10-7 (c) were applicable to Fuller, the recidivist portion of the sentence is void and must be vacated.

The applicable recidivist provisions of subsection (c) of OCGA § 17-10-7 provide that: “[A]ny person who, after having been convicted -under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” Subsection (d) of OCGA § 17-10-7 further provides that: “For the purpose of this Code section, conviction' of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

Decided July 1, 1998.

Huguenin, Annis & Lewis, John M. B. Lewis IV, Lawrence D. Galehouse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

As proof that Fuller was subject to recidivist sentencing under these provisions, the State submitted certified copies of records showing Fuller’s prior felony convictions. These records show the following: Fuller was convicted on April 20, 1983, for the felony offense of criminal attempt to commit financial transaction card fraud. The certified records show that this conviction was part of a negotiated plea in which a nolle prosequi order was entered on a pending charge of burglary. The remaining certified records show that on March 13, 1985, Fuller was convicted and sentenced as a result of a negotiated plea on the following felonies: four counts of burglary, one count of aggravated assault, and one count of possession of a firearm by a convicted felon. However, the records show that all six felonies for which Fuller was convicted on March 13, 1985, were for crimes charged on separate counts of the same indictment.

Under the provisions of subsection (d) of OCGA § 17-10-7, Fuller’s April 20, 1983 conviction counted as one prior felony conviction, and Fuller’s six March 13, 1985 convictions on separate counts under the same indictment counted as one prior felony conviction. Of course, the current felony counts on which Fuller entered a plea of guilty and was sentenced on December 20, 1996, cannot be counted as a prior felony conviction for purposes of recidivist sentencing. Since the State failed to prove that Fuller had three prior felony convictions as measured by the terms of OCGA § 17-10-7 (d), the recidivist provisions of OCGA § 17-10-7 (c) did not apply. Accordingly, the portion of Fuller’s sentence indicating that he was sentenced under the recidivist provisions of § 17-10-7 (c) and that he is ineligible for parole is void and must be vacated. The remaining portion of the sentence is affirmed. The case is remanded for resentencing in accordance with this opinion.

Sentence affirmed in part, vacated in part, and case remanded for resentencing.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1511.
    HINTON v. THE STATE.
    (504 SE2d 49)
   Eldridge, Judge.

Gilbert Levon Hinton appeals a Cobb County jury verdict finding him guilty of possession of cocaine with intent to distribute. Without challenging the sufficiency of the evidence introduced against him, Hinton enumerates two errors of law which allegedly require reversal. We find Hinton’s contentions meritless and affirm.

1. In his first enumeration of error, Hinton claims that the trial court committed reversible error by “allowing a portion of the trial transcript to be entered into evidence.” We disagree that the trial court’s ruling was reversible error.

During direct examination, the defense attorney showed Hinton the cocaine at issue in this case and asked, “Have you ever had that in your possession?” Hinton replied, “No, I have never sold drugs. And I have never had that in my possession.” The prosecutor immediately interrupted direct examination to inquire “I’m sorry, what did you say?” Hinton replied, “I had never sold no drugs like that [cocaine].”

Thereafter, the prosecutor obtained a transcript of the above portion of Hinton’s trial testimony and marked it as State’s Exhibit 2. The prosecutor also had marked as State’s Exhibit 3 a certified copy of Hinton’s prior Cobb County guilty plea to sale of marijuana. On cross-examination, the prosecutor showed Hinton the transcript of his statement that he had never sold drugs. Hinton explained that he had “corrected” himself by stating that he had never sold drugs like cocaine. Thereafter, the prosecutor tendered into evidence the certified copy of Hinton’s prior drug conviction. In addition, the prosecutor tendered the transcript of Hinton’s trial statement contained in State’s Exhibit 2. Over defense objection that the contents of the transcript would “bolster” Hinton’s testimony, the trial court permitted the transcript to go to the jury for impeachment purposes only.

“In Georgia the ‘continuing witness’ objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. [Cit.]” Tibbs v. Tibbs, 257 Ga. 370 (359 SE2d 674) (1987); Buckner v. State, 219 Ga. App. 71, 74 (464 SE2d 11) (1995).

In the present case, the testimony contained in the trial transcript was properly marked and shown to Hinton for impeachment purposes. However, the transcript of such testimony which had been heard by the jury from the witness stand was subject to a valid “continuing witness” objection. Accordingly, State’s Exhibit 2, while properly tendered into evidence, should not have gone back with the jury during deliberations, thereby putting undue emphasis on the testimony contained in the exhibit.

However, “[h]arm as well as error must be shown to warrant a reversal. See Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991).” Bass v. State, 208 Ga. App. 859, 861 (3) (432 SE2d 602) (1993). In light of Hinton’s statement before the jury that he had never sold drugs; the State’s cross-examination on this subject, wherein the statement was repeated several times; the arguments of counsel before the jury on this issue, in which the jury heard the statement repeated again; and the re-direct of Hinton wherein the defense attempted to rehabilitate on this issue and the statement was repeated again, it is highly probable that the jury’s view of a transcript of the same statement did not contribute to the verdict. Buckner v. State, supra at 74.

2. We find no merit to Hinton’s contention that the prosecutor misrepresented a police officer’s testimony, thereby requiring reversal pursuant to OCGA § 17-8-75, regarding improper statements by counsel.

Hinton did not make a motion for mistrial based upon the error as enumerated, nor did he request curative instructions thereon. “A mere objection to alleged improper argument of counsel, without more, is not sufficient to invoke a ruling of the court; and in the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the argument, it was not error to fail to grant a mistrial or to instruct the jury.” (Citations and punctuation omitted.) Hall v. State, 180 Ga. App. 881, 882 (3) (350 SE2d 801) (1986). “In no case will the trial judge’s ruling be reversed for not going further than requested.” (Citations, punctuation and emphasis omitted.) Cooper v. State, 260 Ga. 549, 550, n. 2 (397 SE2d 705) (1990); see also Keen v. State, 164 Ga. App. 81, 88 (7) (296 SE2d 91) (1982).

Further, we have reviewed that portion of the officer’s testimony about which Hinton complains and conclude that the prosecutor’s representation that “Officer Barnes said that the people in 384 had no knowledge didn’t know who this man [Hinton] was,” is a reasonable interpretation of the disputed testimony. Questions based upon reasonable and permissible inferences from evidence already before the jury do not violate the proscriptions of OCGA § 17-8-75. See, e.g., Thompson v. State, 150 Ga. App. 567 (258 SE2d 180) (1979). There was no error.

Decided July 1, 1998.

Michael A. Zoffmann, Jay L. Palmer, for appellant.

Benjamin F. Smith, Jr., District Attorney, Debra H. Bernes, W. Thomas Weathers III, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       No challenge is made herein to the introduction of the certified copy of Hinton’s prior conviction for sale of marijuana.

       Officer Barnes’ disputed testimony was, “No, he [Hinton] was turned facing Officer Kelker. And the people that came out of 384 didn’t act like they knew who he was.”


text:
    A98A1547.
    BONNER v. THE STATE.
    (504 SE2d 27)
   Andrews, Chief Judge.

John Willie Bonner appeals the judgment entered on his conviction for possession of cocaine with intent to distribute and possession of marijuana, contending the trial court erred in denying his motion to suppress evidence.

Bonner contends the evidence was the result of an illegal stop. For the reasons which follow, we agree and reverse the trial court’s denial of the motion to suppress evidence.

Because the evidence regarding the stop of Bonner was undisputed, the trial court’s application of the law to these facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The evidence was that on September 16, 1997, vice and narcotics officers with the Richmond County Sheriff’s Department were conducting an investigation and surveillance. operation at the Royal Palms Motel. The police were investigating complaints of drug and prostitution activity at the motel, which was in an area known for high drug activity. Investigator Tyrone Williams was specifically watching activity in Room 12, which was occupied by a woman known only as “Bleak,” on whom Williams was trying to gather information. Investigator Williams observed this woman going back and forth to rooms and also approaching cars inside the motel parking lot. Based upon his training and experience with narcotics and vice, Investigator Williams suspected the woman was either “attempting to sell her body or attempting to sell drugs,” although he had not seen or heard anything evidencing actual sale of drugs or solicitation of prostitution.

During the surveillance, a green Chevrolet Beretta entered the parking lot and stopped. The driver, Bonner, got out and reentered on the passenger side. The woman Williams was watching came out of Room 12, got behind the wheel of the Beretta and drove away. Williams and his partner followed the vehicle as it left the motel so as not to arouse suspicion when they later stopped it in order to identify the female. Upon approaching the passenger side of the vehicle where Bonner was sitting, Williams noticed an odor of marijuana. He saw Bonner moving his hands under the seat and asked Bonner to get out of the car. Williams peered into the vehicle and noticed what appeared to be a partially smoked marijuana cigarette or “blunt” in the passenger seat. Bonner was arrested for possession of marijuana and searched, revealing two rocks of crack cocaine in his front pocket and $2,160 in cash.

“Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). The U. S. Supreme Court recognized the difficulty in defining ‘the elusive concept of what cause is sufficient to authorize police to stop a person,’ and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). ‘This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.’ Terry v. Ohio, supra at 21, n. 18.” Vansant v. State, supra at 320 (2).

In the present case, the officer never observed any illegal activity or traffic violation occur. Compare Buffington v. State, 228 Ga. App. 810 (492 SE2d 762) (1997). While he did earlier observe suspicious behavior by the woman consistent with either drug trafficking or prostitution, the officer did not articulate any facts which led him to believe such activity was occurring when he pulled over the car. In his own words, the officer was only “[conducting] an investigation inquiry to identify the black female. . . .” (Emphasis supplied.)

The earlier suspicious activity by the woman does not suffice, because an officer’s statement that someone was “acting suspicious,” without more, will not justify a Terry stop. Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997).

The judgment is therefore reversed and remanded for a new trial consistent with this opinion.

Decided July 1, 1998.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, for appellee.

Judgment reversed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1569.
    WILLIAMS v. THE STATE.
    (504 SE2d 53)
   Blackburn, Judge.

Robert Donnell Williams appeals his conviction of armed robbery (two counts), kidnapping (four counts), aggravated assault (two counts), possession of a firearm during the commission of a crime (four counts), and possession of a firearm by a convicted felon, following a jury trial. Williams was tried with co-defendants Donnie Boone and James Courtney. Williams contends the evidence adduced was insufficient to support the verdict and that the trial court erred in denying his motion for a directed verdict and in admitting certain evidence. We disagree and affirm.

1. On appeal we view the evidence in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We neither weigh the evidence nor determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). We determine whether, after viewing the evidence in this light, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the record reveals the following pertinent facts:

Around 11:00 p.m. on June 26, 1994, a Damon’s restaurant in Augusta, Richmond County, Georgia, was robbed. Shortly after completing her closing duties, employee Patricia Sheppard left the restaurant through the back door. She got into her car and drove it behind the restaurant and parked next to the dumpster. As she was removing a box from the trunk of her car and throwing it into the dumpster, a man came up behind her. The man grabbed her, put a gun to her head, and ordered her back inside the restaurant. As she was being pushed toward the door, Sheppard noticed another man getting inside her car. Because Sheppard could not open the back door, she knocked on it until her co-worker, Darean Jordan, unlocked the door and let her in. The robber pushed Sheppard inside the building, demanding that she keep walking. He took Jordan’s keys and ordered them to take him to the safe or he would shoot them. Sheppard noticed that another man followed them into the restaurant. She saw this man throw a towel over the surveillance camera — a camera that would not have been visible upon entry. The robbers ordered Jordan and three other closing employees — Michael Vidal, Sarah Romeo, and Daniel Troup — to move into the office. Sheppard managed to slip away during the commotion and hide in another part of the restaurant.

Upon entering the office, the robbers told Romeo to put the evening’s proceeds into a plastic bag the robbers had brought with them. The robbers took the evening’s $7,000 in receipts, which consisted of cash (including a $1,000 bill), several $10 rolls of quarters, and numerous credit card receipts. After filling the bag, one of the robbers grabbed Romeo by the arm and said “You’re going with me.” He told the other employees not to move or he would shoot Romeo. On their way out of the restaurant, the robbers locked Romeo into a closet with the Damon’s restaurant keys. In addition to the evening’s receipts, the robbers took Sheppard’s Cadillac, her purse, and her cell phone.

The Damon’s employees could not identify the robbers. The two who were observed inside the restaurant were described as black males wearing dark clothing and stocking masks.

Shortly after 11:00 p.m., Jay Watkins, a man who resided near Damon’s, noticed a two-door silver-grey car parked along the road with its interior light on. As he drove by the car, hé noticed that the driver’s door was ajar and that the driver was standing outside the car. His suspicions aroused, Watkins wrote down the car’s tag number. Fifteen minutes later, on his way back home, he noticed a Cadillac with its trunk open abandoned in the same area. Watkins also wrote down the tag number of this car. When he returned home, he called the police. The police determined that the abandoned Cadillac was Sheppard’s. They found a roll of quarters and a stocking mask in the Cadillac.

Suspecting that the silver-grey car may have been involved in the robbery, the police located the car’s owner, Valerie Davis, and obtained a warrant to search her car and her residence. The police found a 9 mm bullet, a wallet belonging to Donnie Boone, and a large number of quarters in Davis’ car. They found five $20 bills in her purse. Davis told police and testified at trial that she received the money from Boone, her cousin. She loaned her car to Boone that evening so that he and his friends, James Courtney and Donnell Williams, could go out. Davis also said that she, Williams, Boone, and Courtney had spent the afternoon together, visiting at the home of Michelle Dunn. Around midnight, Boone returned Davis’ car to her at Dunn’s house. Davis then drove Boone to a hotel. When she dropped him off, she saw Williams leaning over the second floor balcony of the hotel.

The police then spoke with Michelle Dunn, James Courtney’s girl friend, who confirmed in part Davis’ account of the evening. Upon a consent search of Dunn’s residence, the investigators found a pair of pantyhose from which the legs had been cut. The shade of the hose matched that of the stocking leg mask found in the back of the Cadillac. Based upon this information, the investigators got a warrant for Boone’s arrest and then went to the hotel.

During their search of Boone’s hotel room, the investigators found a loaded 9 mm handgun, a black plastic bag filled with Damon’s credit card receipts, a bank bag, a $1,000 bill, and the restaurant keys. Also in the bag were Patricia Sheppard’s wallet, cell phone and car keys, and dark-colored clothing similar to that worn by the robbers. Williams and Boone each had about $1,300 in cash stuffed in their pockets. Police later learned that Boone once worked at Damon’s as a dishwasher and thus would have known of the surveillance camera in the restaurant’s kitchen.

James Courtney was also arrested. He gave a statement acknowledging that he knew Boone and Williams had planned to commit a robbery at Damon’s. He also gave police his one-third share of the robbery proceeds, $1,390, explaining that Williams and Boone had asked him to keep this money for them. Courtney’s statement was admitted into evidence. Courtney, who testified at trial and denied any involvement in the robbery, was also cross-examined with respect to his prior inconsistent statements.

This evidence was sufficient to enable rational jurors to find Williams guilty on all counts beyond a reasonable doubt. See Jackson v. Virginia, supra.

2. Williams contends the trial court erred in admitting the testimony of an investigating officer whose name was not on the state’s formal witness list. Williams, however, voiced no objection when the officer testified. Thus, the error was not preserved for our review. Lockleer v. State, 188 Ga. App. 271, 272-273 (3) (372 SE2d 663) (1988). Although one of Williams’ co-defendants objected, that objection did not inure to Williams’ benefit because he did not join in it. “[W]here a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review.” Barnes v. State, 168 Ga. App. 925, 926 (2) (310 SE2d 777) (1983).

3. Williams also argues that the trial court erred in admitting the statement of co-defendant James Courtney on the basis that the statement was obtained in violation of Courtney’s constitutional rights. Pretermitting whether Courtney’s statement was lawfully obtained, Williams has no standing to challenge the statement’s admission against him or Courtney on this basis. “Constitutional rights are generally considered to be personal to the accused, and they must be asserted by the one whose rights were actually infringed.” Lemley v. State, 245 Ga. 350, n. 1 (264 SE2d 881) (1980). “The only person with standing to complain of the admission of fruits gained from an illegally obtained confession would be the person who made the confession.” Sims v. State, 243 Ga. 83, 85 (2) (252 SE2d 501) (1979); Chance v. State, 172 Ga. App. 299, 304 (8) (322 SE2d 741) (1984).

4. Finally, Williams argues the trial court erred in denying his motion for a directed verdict on the basis that several counts alleged in the indictment merged because the same facts were used to prove those counts. However, a defendant is not entitled to a directed verdict simply because the offenses charged may merge.

“When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” (Emphasis supplied.) OCGA § 16-1-7 (a); State v. Estevez, 232 Ga. 316, 320 (2) (206 SE2d 475) (1974). Thus, Williams’ “argument contuses the jury’s role in criminal trials with that of the trial court. Under Georgia law, the jury has the responsibility to give a general verdict of guilty or not guilty. Conviction is not the verdict; it is the judgment on the verdict or guilty plea. Therefore, although OCGA § 16-1-7 (a) provides that one cannot be ‘convicted’ of more than one crime arising from the same conduct, this Code section has no application to the verdict. [Cit.] The jury must first find a defendant guilty of more than one such offense before the court has the opportunity to merge the offenses under OCGA § 16-1-7 (a).” (Punctuation omitted.) Sartin v. State, 223 Ga. App. 759, 761-762 (4) (479 SE2d 354) (1996). Accordingly, the trial court did not err in denying the motion for a directed verdict. Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987) (physical precedent only).

We do not address the merger issue because Williams enumerated as error the denial of his motion for a directed verdict (to which he was not entitled) and not whether the trial court should have merged any of his convictions upon sentencing. This Court lacks jurisdiction to consider inadequately enumerated grounds. OCGA § 5-6-40; Meeks v. State, 178 Ga. App. 9, 14 (4) (341 SE2d 880) (1986). Moreover, even had Williams properly enumerated that issue on appeal, we would decline to address it because Williams failed to properly preserve the merger issue for our review. It was incumbent upon Williams to make objection at sentencing or to make a proper motion at sentencing if sentenced in violation of OCGA § 16-1-7. Id. Williams has not provided us with a transcript of the sentencing hearing nor made any reference to that proceeding. There is no evidence in the record that Williams raised the merger issue or objected to the sentences imposed at the time of sentencing or in his motion for new trial. There is no evidence that he made a motion in arrest of judgment. Because no proper objection or motion was made, the issue was not properly raised below. Hill, supra at 657 (4); see also Edmonson v. State, 212 Ga. App. 449, 451 (3) (442 SE2d 300) (1994). Consequently, we would “not reach the merits, for errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.” (Punctuation omitted.) Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989). See also Harrison v. State, 201 Ga. App. 577, 582 (5) (411 SE2d 738) (1991).

Decided July 1, 1998.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1588.
    TAYLOR v. THE STATE.
    (504 SE2d 57)
   Blackburn, Judge.

Shep Edward Taylor appeals his convictions of running a stop sign and driving after being declared a habitual violator of the laws relating to motor vehicles. Taylor contends that the trial court erred by refusing to charge the jury on mistake of fact and by improperly admitting certain evidence of his prior driving record. For the reasons set forth below, we affirm.

On the morning of September 29, 1995, Officer Johnny Kennedy of the Georgia State Patrol saw Taylor run a stop sign. After Taylor pulled off the road, Kennedy asked Taylor for his driver’s license. Instead of his license, Taylor handed Kennedy an official notice from the Department of Public Safety that his license had been suspended indefinitely. Kennedy then ran Taylor’s license number through the police computer and confirmed that the license had been suspended. This search also revealed that Taylor was an habitual violator. Kennedy then arrested Taylor for running a stop sign and driving while being a habitual violator with a suspended license.

1. In his first enumeration of error, Taylor contends that the trial court erred by refusing to charge the jury on mistake of fact. During trial, Taylor presented a receipt for the payment of $60 issued to him on September 8, 1994 by the Department of Public Safety. In its “for” line, this receipt states “Reinstated” followed by an illegible number, and the receipt was signed by Wendy Walker, an employee of the Georgia State Patrol who handles insurance cancellations. Kennedy testified: “If you let your insurance lapse and run out, [Walker] can reinstate your insurance, but that’s all she does.” In addition, a motor vehicle report which was admitted into evidence without objection indicates that Taylor had a “no proof of insurance” reinstatement on September 8, 1984, while his other driving offenses remained.

Taylor contends that he was operating his vehicle based on the mistake of fact that the receipt that he received from Walker fully reinstated his license. Taylor, however, did not testify at trial, and the evidence adduced did not support a charge on such a mistake of fact. Indeed, the only evidence presented at trial indicated that Walker could only reinstate a license with regard to insurance violations, and there was no evidence whatsoever regarding the meeting between Walker and Taylor as neither one of them testified. Therefore, contrary to Taylor’s argument, the word “Reinstated” on the receipt from the Department of Public Safety alone would not support his request to charge, and there was no other evidence indicating that Taylor may have been operating his vehicle under a misapprehension of fact. “While a trial court is required to charge on a criminal defendant’s sole defense of mistake of fact even absent a request to do so, such a charge is not required where, as here, it is not authorized by the evidence.” (Citations omitted.) Gunter v. State, 155 Ga. App. 176, 177 (3) (270 SE2d 224) (1980).

Moreover, “[a] mistake of fact is defined as ‘a misapprehension of fact which, if true, would have justified the act or omission.’ OCGA § 16-3-5. Failure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law. . . .It is axiomatic that everyone is presumed to know the law and ignorance thereof is not an excuse for its violation. Thus, the mere fact that [Taylor] may have been ignorant of the continued existence of his habitual violator status and the resultant consequences did not, in and of itself, afford him any defense to the . . . charge of which he was convicted.” (Citation and punctuation omitted.) Turner v. State, 210 Ga. App. 303, 304 (1) (436 SE2d 229) (1993).

2. In his second enumeration of error, Taylor contends that the trial court erroneously admitted his driving record into evidence. During trial, two documents were admitted into evidence which contained information concerning Taylor’s driving record. One was an “official notice of revocation” from the Department of Public Safety to Taylor which informed Taylor both that his license was being revoked and that he had been declared a habitual violator, and that listed three offenses which formed the basis for Taylor’s habitual violator status. Taylor objected to the four-page exhibit containing this document “only as to the fact that some of that may . . . place his character in issue.” Taylor, however, failed to specify exactly what portions of the State’s exhibit he found objectionable. The other document admitted into evidence was a police motor vehicle report which listed all of Taylor’s driving offenses, including the three offenses which were the basis for his habitual offender status. Taylor did not object to the admission of this document.

Decided July 1, 1998.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

It is unclear from Taylor’s enumeration which document’s admission he now claims was error. Regardless, we find that both documents were appropriately admitted by the trial court. As Taylor did not object to the admission of his police motor vehicle record below, he waived his right to complain about such admission before this Court. See Arrington v. State, 224 Ga. App. 676, 678 (3) (482 SE2d 400) (1997). Also, any argument made by Taylor that admission of the “official notification of revocation” was error because the driving violations listed thereon improperly brought his character into evidence is untenable. The same violations listed on the “official notice of revocation” were also listed on the police motor vehicle report to which Taylor did not object. “Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.” (Punctuation omitted.) Ardeneaux v. State, 197 Ga. App. 640 (2) (399 SE2d 258) (1990).

Judgment affirmed.

McMurray, P. J, and Eldridge, J, concur.

       Taylor was also charged with possession of cocaine; however, a mistrial was declared on this count due to a hnng jury.

       The remainder of this exhibit consisted of a certified mail receipt and a police printout confirming the suspension of Taylor’s license.


text:
    A98A1622.
    THOMAS v. THE STATE.
    (504 SE2d 59)
   Blackburn, Judge.

Michael Thomas appeals his conviction of driving under the influence of alcohol to the extent he was a less safe driver and for making an improper lane change. Thomas contends the trial court erred in denying his motion to quash the accusation which was filed over two years after the alleged violation, and his plea in bar based on his right to a speedy trial. We affirm.

On October 14,1994, a police officer issued Thomas uniform traffic citations charging him with driving under the influence of alcohol, driving with a suspended license, and making an improper lane change. On February 8, 1995, the Municipal Court of Peachtree City bound the charges over to the Superior Court of Fayette County. On February 27, 1995, Thomas filed with the superior court pursuant to OCGA § 17-7-170 a demand for a speedy trial. On July 2, 1996, the district attorney filed an accusation in the Fayette Superior Court charging Thomas with (1) DUI, less safe; (2) DUI, with a blood-alcohol concentration of at least 0.10; (3) driving with a suspended license; and (4) an improper lane change. Although Count 1 of the accusation properly recited the offense date as October 14, 1994, Counts 2 through 4 contained a typographical error which listed the offense as occurring on October 14, 1996.

On January 1, 1995, just a month before Thomas’ case was bound over to the Superior Court of Fayette County, local legislation creating the State Court of Fayette County and the Fayette County Solicitor’s Office became effective. Ga. L. 1994, pp. 4980, 4988. According to the local act, the state court had concurrent jurisdiction with the superior court over misdemeanor criminal cases. Ga. L. 1994, pp. 4984-4985. Moreover, the act directed that “[a]ll such cases pending in the Superior Court of Fayette County as of January 1, 1995, shall be immediately transferred to the State Court of Fayette County.” Ga. L. 1994, p. 4985. This act was amended in 1996 to provide for the election of both a solicitor and a judge of the State Court of Fayette County, both of whom were to begin their term of office on January 1, 1997. Ga. L. 1996, p. 4402.

On January 21, 1997, Thomas’ case was transferred to the newly created State Court of Fayette County. The transfer was a result of the creation of the solicitor’s office and the state court. On March 14, 1997, the solicitor filed an amended accusation with the state court which was in substance an identical copy of the four-count accusation previously drafted by the district attorney and filed with the superior court. The solicitor’s accusation, however, amended Counts 2 through 4 with respect to the offense date, this time properly listing it as October 14, 1994.

1. In his first enumeration of error, Thomas contends the solicitor’s amended accusation, by changing the offense date, charged Thomas with a new offense and that the offense alleged was beyond the two-year statute of limitation for prosecuting misdemeanors, OCGA § 17-3-1 (d). We do not agree.

The original accusation filed by the district attorney was filed within the two-year statute of limitation. The solicitor merely amended it to correct an error, as was his right, pursuant to OCGA § 17-7-71 (f): “Prior to trial, the prosecuting attorney may amend the accusation to allege or to change the allegations regarding any offense arising out of same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation.” It appears, based upon the record, that the original accusation contained a typographical error with respect to the offense date in three of the four counts. The solicitor merely corrected that error, which is a change permitted under OCGA § 17-7-71 (f). Anderson v. State, 211 Ga. App. 2, 3 (2) (438 SE2d 376) (1993).

Further, because the accusations did not allege that the offenses occurred on a specific date and no other, the offense date was never made a material element of the offense charged. See Hutton v. State, 192 Ga. App. 239, 241 (4) (384 SE2d 446) (1989); see also Worley v. State, 88 Ga. App. 786 (77 SE2d 769) (1953). “[I]t has long been the law that where the date alleged in the indictment or accusation is not a material element of the offense, the state may prove the offense as of any date within the statute of limitation.” (Punctuation omitted.) Melton v. State, 174 Ga. App. 461, 462 (1) (330 SE2d 398) (1985).

2. Thomas also argues that he was denied a speedy trial. He concedes that his speedy trial demand pursuant to OCGA § 17-7-170 (a) was filed prematurely and, therefore, did not trigger the discharge and acquittal provision of OCGA § 17-7-170 (b). See State v. Stang, 228 Ga. App. 204 (491 SE2d 382) (1997). However, he argued for the first time in his motion to dismiss a denial of his Sixth Amendment right to a speedy trial, requiring us to examine his claim under the four-part test of Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Applying this test, we must consider “(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.” Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997). Whether there has been prejudice to the defendant requires consideration of “three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.” Id. However, “these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Barker, supra at 533. We review the trial court’s decision under an abuse of discretion standard. Burns v. State, 265 Ga. 763, 764 (462 SE2d 622) (1995).

First, the delay in this case was 30 months from arrest to trial. Thomas filed his motion to dismiss on February 18, 1997, 29 months after his arrest. “[A] delay of 27 months from arrest to defendant’s motion to dismiss raises a threshold presumption of prejudice.” Johnson, supra at 417 (2). “Delay alone, however, does not constitute a violation of the Sixth Amendment, and the other factors in the Barker balancing test must be considered.” Snow v. State, 229 Ga. App. 532, 533 (494 SE2d 309) (1997).

Second, the State makes no explanation for the delay in prosecuting Thomas, other than to show that the case was transferred from the district attorney to the solicitor for prosecution in the newly created state court. While changes in the court system may explain the delay, they do not necessarily excuse it. We must consider the delay in bringing Thomas to trial in part, at least, the result of the State’s negligence. Johnson, supra at 418 (2). “This is not to say that the State intentionally dragged its feet to impair [Thomas’] defense. Nowhere in the record is there evidence that the State intentionally delayed [Thomas’] trial to achieve such an end. [Cit.] Therefore, although the delay attributable to the State is a negative factor, it is relatively benign.” Id.; Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273) (1984).

Third, although Thomas did file a premature and thus ineffective demand for a speedy trial under OCGA § 17-7-170 (a), he did not allege a denial of his right to a speedy trial under the Sixth Amendment until he filed his motion for dismissal in February 1997 — 29 months after his arrest. Because Thomas did not assert his constitutional rights until trial was imminent, we must weigh this factor against him. Perry, supra at 595.

Fourth and most significantly, Thomas failed to show how his defense was prejudiced by the delay. In considering whether under the Barker four-part test there was any prejudice to the defendant, the most important factor and the one entitled to the most weight is whether or not the delay resulted in any impairment of the defense. Barker, supra at 532; State v. Yates, 223 Ga. App. 403, 404 (477 SE2d 670) (1996). There is no evidence that Thomas’ ability to defend himself was in any way harmed by the delay or that he suffered any anxiety or concern generally or as the result of the delay or any detention. In fact, it appears Thomas has been on bond since his arrest and remains on bond pending appeal. Therefore, this factor is heavily weighted against him. Johnson, supra at 418.

Balancing these four factors of the Barker test, we conclude that the 30-month delay in this case did not violate Thomas’ constitutional right to a speedy trial. The trial court did not abuse its discretion in denying Thomas’ motion to dismiss.

Decided July 1, 1998.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Steven L. Harris, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Ruffin, Judge.

text:
    A98A0422.
    PIERCE v. WENDY’S INTERNATIONAL, INC. et al.
    (504 SE2d 14)
   Ruffin, Judge.

John Webb Pierce sued Wendy’s International, Inc. (“Wendy’s”) to recover for injuries resulting when Pierce fell into a hole located on Wendy’s property. The trial court granted Wendy’s motion for summary judgment. Pierce appeals, and for the following reasons, we affirm.

To prevail on summary judgment, the moving party must show that no genuine issue of material fact remains to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in this light, the evidence shows that Pierce was the lawn maintenance supervisor for the landscape company that performed weekly landscape work at Wendy’s restaurant. Pierce’s duties included cutting grass, trimming bushes, and planting flowers and shrubs. On March 28,1995, Pierce was providing landscape services to Wendy’s by weedeating a strip of grass along an adjacent highway when he fell into a hole. At the time of his fall, Pierce was walking backward, looking down at the weedeater and not paying attention to the ground behind him. In his deposition, Pierce stated that the hole was covered with grass and difficult to see when it was approached from the side, because plants obstructed his view. However, Pierce admitted that if he stood directly in front of the hole, it was an obvious hazard. Pierce further admitted that if he had been walking forward, he possibly would have seen the hole. As a result of Pierce’s fall, he suffered injuries to his left leg and lower back.

The evidence of record shows that this was not the first time that Pierce had observed the hole in question. Pierce had performed landscape work at this location at least 18 to 20 times before the accident. On March 21, 1995, one week prior to the accident, Pierce observed the hole as he performed landscape services for Wendy’s. According to Pierce’s affidavit, “the hole was only a dip in the ground” during the summer of 1994, but from the summer of 1994 to March 21,1995, the dip became larger and between March 21, 1995 and March 28, 1995 it eroded away under the grass. However, contrary to Pierce’s affidavit, in his deposition, he states that he is unable to recall how many times he saw the hole prior to March 21, 1995. According to both Pierce’s deposition and affidavit, he stated that the hole appeared to have increased in size, between the time that he last observed the hole, and the date of the incident, due to soil erosion. Pierce told his supervisor about the hole when he noticed it on March 21, 1995.

Relying on the facts supplied in the entire record, including all pleadings, affidavits and depositions, the trial court granted Wendy’s motion for summary judgment.

1. Pierce asserts that the trial court erred in denying his motion to strike Wendy’s store manager’s affidavit as untimely. The record shows that Wendy’s filed its motion for summary judgment on September 5, 1996, but did not file the store manager’s supplemental affidavit until December 5, 1996. On March 17, 1997, the date of hearing on the motion for summary judgment, Pierce filed his motion to strike as untimely. The trial court denied Pierce’s motion to strike the supplemental affidavit and considered the supplemental affidavit in support of Wendy’s motion for summary judgment.

We note initially that even though the order denying Pierce’s motion to strike is a non-final order and as such is not directly appealable under OCGA § 5-6-34 (a), it is appealable under OCGA § 5-6-34 (d). OCGA § 5-6-34 (d) states: “Where an appeal is taken under any provision of (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appeal-ability of the judgment, ruling or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final. . . .” The notice of appeal in this case states on its face that the appeal is being taken from the order granting summary judgment, which is directly appealable pursuant to OCGA § 5-6-34 (a), as well as the order denying Pierce’s motion to strike the supplemental affidavit. “Thus, having filed a notice of appeal from the grant of summary judgment, [Pierce] can also appeal the order [denying the motion to strike]. OCGA § 5-6-34 (d);’ [cit.].” Young Constr. v. Old Hickory House #3, 210 Ga. App. 559 (1) (436 SE2d 581) (1993). Accordingly, this contention of error is properly before this Court.

Turning to the merits of Pierce’s assertion that the affidavit should not have been considered by the trial court, we find Hershiser v. Yorkshire Condominium Assn., 201 Ga. App. 185 (1) (410 SE2d 455) (1991) and Gunter v. Hamilton Bank &c., 201 Ga. App. 379 (411 SE2d 115) (1991) controlling. In Hershiser, we determined that the trial court erred in considering supplemental affidavits filed after the motion for summary judgment was filed because the movant did not request an extension of time to file and serve the affidavits pursuant to OCGA § 9-11-6 (d), nor did the trial court find excusable neglect on the movant’s part in failing to file timely and serve the affidavits. Hershiser, supra at 185.

Likewise, in Gunter, the plaintiff filed a supplemental affidavit and deposition in support of its motion for summary judgment and the defendant objected at the hearing and moved to have it stricken as untimely filed. However, the trial court considered both the supplemental affidavit and the deposition in granting summary judgment to the plaintiff. We held the supplemental affidavits and deposition were not timely filed, and consequently were not properly before the trial court for consideration. Gunter, supra at 381. As to the supplemental affidavit, we determined that “OCGA § 9-11-56 (c) which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d) which requires that ‘when a motion is supported by affidavit, the affidavit shall be served with the motion,’ have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. [Cits.]” Id. at 381. Furthermore, the filing requirement is not waived unless the opposing party acquiesced in the use of the untimely materials or the movant seeks and obtains an order from the trial court under OCGA § 9-11-6 (b) to extend the time for filing. Id.; see also Jones v. Howard, 153 Ga. App. 137, 140-141 (264 SE2d 587) (1980).

In denying Pierce’s motion to strike, the trial court relied on the Gunter court’s construction of OCGA § 9-11-56 (c) together with OCGA § 9-11-6 (d) and reasoned that Pierce had sufficient time to respond to Wendy’s supplemental affidavits. However, the question of whether Pierce had sufficient time to respond to the untimely affidavit is not a factor considered by either Hershiser or Gunter, and we therefore conclude that it is not dispositive of the issue.

In this instance, the record shows that Pierce objected to consideration of the materials filed less than 30 days prior to the hearing. There is no evidence that the defendant requested an extension of time to file and serve the supplemental affidavits under OCGA § 9-11-6 (b), nor was there any evidence of excusable neglect in failing to serve the affidavits with the motion for summary judgment. Accordingly, the supplemental affidavit of Wendy’s store manager was not properly before the court and the trial court erred in relying on it. Hershiser, supra; Gunter, supra.

Notwithstanding the trial court’s improper consideration of the supplemental affidavit, we do not find it dispositive and therefore address the merits of the issues presented in this appeal.

Decided June 19, 1998

Reconsideration denied July 2, 1998

Michael J. Kramer, for appellant.

Arrington & Hollowell, Brian M. Weiss, Gary W. Diamond, for appellees.

2. “[I]n order to recover for injuries sustained in a slip-and-fall action, [Pierce] must prove (1) that [Wendy’s] had actual or constructive knowledge of the hazard; and (2) that [Pierce] lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

To avoid summary judgment Pierce could not rest on the pleadings but had the burden to come forward with specific evidence that Wendy’s had superior knowledge of the alleged hazardous condition. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994). This he failed to do. Pierce offered no evidence that Wendy’s had superior knowledge of the hole.

Furthermore, when a person has successfully negotiated an allegedly dangerous condition on a previous occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom. Harpe v. Shoney’s, 203 Ga. App. 592, 593 (1) (417 SE2d 184) (1992). Accordingly, Pierce’s admission that he worked in the same area one week earlier establishes that he had knowledge of the condition and therefore he cannot recover for his injuries. In addition, Pierce also admitted that he did not report the hazard to Wendy’s but only to his supervisor. Notwithstanding whether Wendy’s had sufficient time to discover the danger or not, Pierce did discover the danger one week before the incident. Accordingly, there is no evidence that Wendy’s had superior constructive knowledge of the hazard based upon Wendy’s failure to discover the danger. Having failed to meet his burden in response to Wendy’s motion for summary judgment, Wendy’s was entitled to summary judgment as a matter of law. Lau’s Corp., supra; OCGA § 9-11-56 (c).

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1168.
    GROVENSTEIN v. THE STATE.
    (504 SE2d 24)
   Andrews, Chief Judge.

Thomas G. Grovenstein appeals from the trial court’s denial of his motion for an out-of-time appeal. After a jury found Grovenstein guilty of aggravated sodomy, sodomy, sexual battery, five counts of furnishing alcoholic beverages to an underaged person, and misdemeanor possession of marijuana, a judgment of conviction and sentence was entered by the trial court on March 1, 1996. No notice of appeal was filed from the judgment. On January 21, 1997, Grovenstein moved for an out-of-time appeal claiming that the lack of a timely appeal was due to appellate counsel’s failure to perform routine duties. After a hearing, the trial court denied the motion. For the following reasons, we find no error and affirm the judgment denying an out-of-time appeal.

The trial record shows that immediately after Grovenstein was convicted and sentence was imposed, the trial court informed him of his right to seek relief from the conviction by filing an appeal within 30 days. Grovenstein was represented at the time by his retained attorney, and the trial court informed him that he could discuss this right with his retained attorney or another attorney of his choice. The trial court further informed Grovenstein that he had a right to have an attorney represent him in an appeal from the conviction, and that if he could not afford to hire an attorney the court would provide one at no cost. The trial court asked Grovenstein if he understood these rights and he responded, “Yes.”

At the hearing on the motion for an out-of-time appeal, Grovenstein’s retained trial attorney testified that immediately after the trial he discussed the right to an appeal with Grovenstein; but Grovenstein told him that, given what he thought was a fair sentence, he did not want to appeal. Grovenstein testified that he did not remember discussing an appeal with his attorney or telling his attorney not to file an appeal. He testified that he talked to his father after the trial about “doing something,” but that he had no money to employ an attorney for an appeal. On cross-examination, Grovenstein testified that he was not denying that his retained attorney discussed an appeal with him after the trial but that he was in such a state of shock at the time that he did not remember. He also testified that, because he was in a state of shock after the conviction, he did not remember the trial court’s instructions to him about his right to an appeal and his right to an attorney at no cost. He testified that he did not ask his retained counsel to pursue an appeal on his behalf. Grovenstein also conceded that he did not ask the trial court to appoint an attorney to represent him on appeal, but he said he failed to do so because he was not aware he was entitled to a court-appointed attorney for an appeal.

Based on this record, the trial court concluded that Grovenstein was fully informed of his right to appeal within 30 days of the conviction, of his right to be represented by an attorney on appeal, and of his right to obtain a court-appointed attorney at no cost if he could not afford to hire an attorney for an appeal. The trial court also concluded that Grovenstein conferred with his retained attorney about an appeal and told his attorney that he did not wish to pursue an appeal. These factual findings support the conclusion that the lack of a timely appeal after the conviction was not due to counsel’s failure to perform routine duties because of negligence, ignorance, or misinterpretation of the law, nor was it due to any failure to adequately inform Grovenstein of his appeal rights. Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985); Evans v. State, 198 Ga. App. 537, 538 (402 SE2d 131) (1991). Rather, these factual findings support the conclusion that Grovenstein made an informed decision to forego an appeal of the conviction. Rowland v. State, 264 Ga. 872, 874 (452 SE2d 756) (1995). Because these factual findings are not clearly erroneous, we conclude that the trial court correctly denied Grovenstein’s motion for an out-of-time appeal. Taylor v. State, 266 Ga. 129 (464 SE2d 385) (1995).

Decided June 22, 1998

Reconsideration denied July 2, 1998

Randall M. Clark, O. Dale Jenkins, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1338.
    SHAW v. THE STATE.
    (504 SE2d 18)
   Andrews, Chief Judge.

Jeremiah Shaw appeals from the judgment of conviction entered on a guilty plea he entered to the charge of armed robbery and from the denial of his motion for resentencing. His enumerations of error on appeal relate solely to the denial of the motion for resentencing.

After Shaw pled guilty to armed robbery, the trial court entered a judgment of conviction on the plea and sentenced him on January 10, 1997, to a mandatory minimum term of imprisonment of ten years pursuant to OCGA § 17-10-6.1. On January 5, 1998, Shaw filed a motion seeking to have his sentence vacated and to be resentenced. Shaw claimed that the sentence was void because the trial court erroneously failed to exercise its discretion to consider whether he should be sentenced under the provisions of the First Offender Act (OCGA § 42-8-60 et seq.). The trial court denied the motion concluding that the sentence was not void and that the court did not have jurisdiction to modify the sentence after the expiration of the term of court at which the sentence was entered.

Decided June 22, 1998

Reconsideration denied July 2, 1998

Alan M. Alexander, Jr., for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

A trial court is without jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered. Latham v. State, 225 Ga. App. 147 (483 SE2d 322) (1997). It is undisputed that the term of court during which Shaw was sentenced expired long before his motion for resentencing was filed. Nevertheless, even after the expiration of the applicable term of court, the trial court has jurisdiction to resentence the defendant where the sentence imposed is void. Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991). “A sentence is void if the court imposes punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611 (409 SE2d 517) (1991).

The sentence imposed on Shaw is not void because it imposes the punishment set forth in OCGA § 17-10-6.1 for the serious violent felony of armed robbery. Since the sentence was not void, the trial court correctly concluded that, after the expiration of the applicable term of court, it was without jurisdiction to resentence Shaw. Accordingly, we do not address Shaw’s claim that the trial court erred by failing to exercise its discretion to consider imposing a sentence under the provisions of the First Offender Act.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.