text:
    A01A1172.
    THE STATE v. CARRAWAY.
    (554 SE2d 602)
   Barnes, Judge.

The State appeals the trial court’s order suppressing “all evidence subsequent to [David W. Carraway’s] arrest, including the so-called field sobriety tests, visual observations of the officers, and the State administered breath test.” Because we find the trial court’s relief was overly broad for a Miranda violation, we reverse the portion of the order suppressing evidence of the officers’ observations and the breath test.

After Carraway was stopped for riding his motorcycle without a helmet, the officer immediately placed him under arrest and called an Atlanta DUI Task Force officer because Carraway appeared intoxicated. Upon his arrival, the DUI officer immediately smelled a strong odor of alcohol, saw that Carraway’s eyes were bloodshot and glazed, and saw that Carraway had difficulty standing erect. He then had Carraway perform field sobriety tests. Carraway later consented to a breath test, and he was accused ultimately of driving under the influence of alcohol to the extent that he was a less driver (OCGA § 40-6-391 (a) (1)), driving with an alcohol concentration of at least 0.10 grams (OCGA § 40-6-391 (a) (5)), and operating a motorcycle without a helmet (OCGA § 40-6-315 (a)).

Carraway moved to suppress all evidence obtained after his arrest because he was not warned of his Miranda rights. After an evidentiary hearing, the court suppressed all evidence obtained after Carraway’s arrest, but refused to issue a written order. Following the State’s nolle prosse of the 0.10 charge, Carraway was convicted of the less safe driver DUI charge and the no helmet charge. The court granted a new trial, however, because of insufficient evidence of venue.

Shortly before the new trial date, the State filed a motion requesting that the court limit its earlier suppression ruling to allow “non-testimonial evidence, such as the visual observations of the defendant . . . and . . . the breath test.” The court denied this motion by written order, and the State appeals. As the State concedes that the trial court did not err by excluding the field sobriety test results, the only issue before us is whether the trial court erred by suppressing the other evidence.

We find the trial court erred by suppressing the results of the breath test. The privilege against self-incrimination protects one from being compelled to testify against oneself or otherwise provide the State with evidence of a testimonial or communicative nature. A testimonial communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. A response to a request to take a breath test is neither testimonial nor communicative. It is neutral in effect and not protected by the privilege against self-incrimination. Scanlon v. State, 237 Ga. App. 362, 363-364 (1) (514 SE2d 876) (1999). “Evidence not protected by the privilege against self-incrimination cannot be suppressed due to the failure of the arresting officer to inform the defendant of his Miranda rights.” State v. Lord, 236 Ga. App. 868, 870 (513 SE2d 25) (1999). Therefore, the failure to give Miranda warnings does not require suppression of the results of Carraway’s breath test.

For the same reasons, we find that the trial court also erred by suppressing evidence regarding the officers’ observations of Carraway at the scene of the traffic stop. Miranda applies to custodial interrogations. Therefore, the failure to give Miranda warnings does not require the suppression of a police officer’s testimony about his mere observations of Carraway at the scene of the traffic stop. Compare Creamer v. State, 229 Ga. 511, 516-518 (3) (192 SE2d 350) (1972).

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

Decided September 6, 2001

Joseph J. Drolet, Solicitor-General, Shukura L. Ingram, Katherine Diamandis, Assistant Solicitors-General, for appellant.

Head, Thomas, Webb & Willis, Thomas J. Thomas, for appellee.

       This offense occurred before the most recent changes to the DUI law.

       Although the State nolle prossed the OCGA § 40-6-391 (a) (5) charge, the results of Carraway’s breath test could be admissible on the remaining less safe driver charge.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A1211.
    UMBEHAUM v. THE STATE.
    (554 SE2d 608)
   Phipps, Judge.

Patrick Umbehaum pled guilty to the charge of robbery and was sentenced to 12 years imprisonment. Although represented by counsel below, he directly appeals from his conviction, pro se. He contends he was denied his right to a speedy and public trial, the nature of the robbery charge was not explained to him, the State violated a previous plea bargain agreement, there was prosecutorial misconduct, and he was denied effective assistance of counsel. Because the record shows that Umbehaum’s guilty plea was intelligently and voluntarily entered, thus waiving his right to a trial, we affirm. The remaining contentions are not properly before us.

1.

When a defendant challenges the validity of his guilty plea, the State bears the burden of showing that the plea was entered voluntarily and intelligently and that the defendant had an understanding of the nature of the charges against him and the consequences of the plea. The State may meet its burden in two ways: (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) filling a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

The record belies Umbehaum’s contention that the nature of the charge was not explained to him. The indictment on which Umbehaum entered a written plea of guilty listed the robbery charge and the basis for the charge. At the plea hearing, the prosecutor set forth the factual basis for the charge, stating that Umbehaum was accused of entering a bank on June 10, 1999, snatching approximately $26,450 in American Express traveler’s checks from a teller, then fleeing the scene. Umbehaum admitted that he committed the criminal act, acknowledged that doing so was wrong, and affirmed that he understood the robbery charge.

Umbehaum was fifty years old at the time of the hearing and had completed two years of post-high school education. He stated that he could read and write English. He was represented by an attorney and confirmed to the court that he had received adequate time to speak with his attorney about his case and that he was satisfied with his attorney’s services. “It may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” The State has carried its burden of showing that Umbehaum understood the nature of the robbery charge to which he subsequently pled guilty.

Further, Umbehaum stated at the plea hearing that he understood that he had the right to plead not guilty, that he had the right to a trial by jury, and that by pleading guilty he was giving up that right. He further stated that he understood that he had the right to be presumed innocent until proven guilty, the right not to incriminate himself, the right to confront witnesses, the right to testify, to offer evidence and to subpoena witnesses, and the right to counsel at trial. He also acknowledged that he understood that the court could sentence him to a period of up to 20 years of imprisonment and a fine of up to $100,000 upon his plea of guilty to the charge. Umbehaum stated he was pleading guilty, that his plea was voluntary and knowing, and that no one had promised him anything.

The record shows that Umbehaum entered his guilty plea to robbery voluntarily and intelligently and with an understanding of the nature of the charges against him and the consequences of the plea.

2. Umbehaum’s contention that he was denied his right to a speedy and public trial and that such denial violated the Interstate Agreement on Detainers (LAD) is without merit. A defendant who has entered a voluntary and intelligent plea of guilty cannot thereafter raise as a defense the denial of his right to a speedy trial. With limited exceptions not applicable here, “[office a defendant solemnly admits in open court that he is in fact guilty of the offense charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Having entered a valid plea of guilty, Umbehaum cannot now raise as a defense his right to a speedy and public trial.

Further, there was no violation of the IAD, which requires that a defendant imprisoned in another state be brought to trial within 180 days of his written request for final disposition. On July 10, 2000, Umbehaum, then incarcerated in Nevada, filed a request to dispose of the robbery charge under authority of the IAD. Pretermitting whether Umbehaum’s request strictly complied with the IAD’s requirements, Umbehaum pled guilty on October 20, 2000, which was within the 180-day period.

3. Umbehaum’s contention that the State reneged on two prior plea bargain agreements presents nothing for this court to review. Umbehaum does not urge that the trial court erred in failing to enforce any agreed-upon plea bargain, nor does he otherwise specify any error allegedly committed by the trial court.

Umbehaum claims that on August 10, 2000, his counsel informed him that an assistant district attorney had offered a sentencing recommendation of “ten years, do five years” in exchange for Umbehaum’s plea of guilty. He claims he accepted the offer, but later the assistant district attorney withdrew the “agreement.” Thereafter, on September 28, 2000, Umbehaum filed a motion to enforce the “plea bargain.” “The record, however, contains no ruling on the motion, no indication that [Umbehaum] objected to entering his plea without such a ruling, [nor any] showing that he otherwise attempted to elicit a ruling. Thus, the issue is waived.”

Umbehaum also claims that he agreed to a second offer to plead guilty in exchange for a recommendation of “15 years, do 10 years.” The record reveals, that during the plea hearing, the assistant district attorney informed the court that although she previously had made a recommendation, “[she] realized real fast that to ask for restitution for the county for [defense counsel’s] fees, to ask for monetary restitution, was a complete waste of breath because it’s never going to happen, because [Umbehaum] told [her] that he can’t work because ... he gets SSI or something like that.” The assistant district attorney then recommended that Umbehaum receive “a sentence of twelve years to serve, period.” The court asked whether Umbehaum agreed to that, and Umbehaum’s attorney answered, “Yes, Your Honor, we have agreed to that.” Although the attorney stated that he considered the sentence recommendation to be “stiff,” he again confirmed, “I want the judge to take it.” The trial court imposed a 12-year sentence without objection from Umbehaum.

“Objections presented for the first time on appeal furnish nothing for us to review, for this court is a court for correction of errors of law committed by the trial court where proper exception is taken.” Consequently, this contention presents nothing for review.

4. Umbehaum contends that the assistant district attorney committed prosecutorial misconduct by making inappropriate remarks about him to his counsel when the two attorneys were at a restaurant. Umbehaum has not supported this allegation by specific reference to the record. Nor is there anything in the record supporting this contention or indicating that Umbehaum raised the issue of prosecutorial misconduct to the trial court. Consequently, this contention presents nothing for this court to review.

5. Umbehaum’s contention of ineffective assistance of counsel is barred by Obi v. State. A defendant may not directly appeal from a guilty plea on the ground of ineffective assistance of counsel where there has not been a post-plea hearing in the trial court developing that claim, and instead, the only evidence in the record is the transcript of the guilty plea hearing. The defendant’s proper remedy is to file a motion to withdraw his guilty plea and appeal the denial of that motion.

The record in this case contains no such motion. Because Umbehaum failed to develop his ineffectiveness claim in a post-plea hearing and the only evidence in the record is the transcript of his guilty plea and sentencing hearing, which provides no evidence of that claim, he cannot raise this issue in this direct appeal of his conviction. We note that the trial court’s jurisdiction over such a motion to withdraw the guilty plea expired at the end of the term of court in which the judgment of conviction was rendered. Thus, Umbehaum’s sole remaining remedy on this claim is habeas corpus.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided September 6, 2001

Patrick Umbehaum, pro se.

Patrick H. Head, District Attorney, Amelia G. Pray, Dana J. Norman, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.

       (Punctuation and footnotes omitted.) Smith v. State, 249 Ga. App. 666 (549 SE2d 487) (2001).

       (Citation and punctuation omitted.) Mock v. State, 218 Ga. App. 514, 517 (2) (462 SE2d 429) (1995).

       See Smith, supra at 666-667 (1), (2); Brown v. State, 226 Ga. App. 309, 310 (486 SE2d 429) (1997).

       OCGA § 42-6-20.

        Tutt v. State, 267 Ga. 49, 50 (472 SE2d 306) (1996); Mason v. Banks, 242 Ga. 292, 293 (2) (248 SE2d 664) (1978).

        Tutt, supra; Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977).

        Tutt, supra.

       Article III of OCGA § 42-6-20; Clater v. State, 266 Ga. 511, 512 (1) (467 SE2d 537) (1996).

       See Tutt, supra; see also Thompson v. State, 240 Ga. App. 539, 541 (5) (524 SE2d 239) (1999) (guilty plea constituted a withdrawal of speedy trial demand).

       See Sparks v. State, 232 Ga. App. 179, 182 (3) (a) (501 SE2d 562) (1998).

       (Citation omitted.) Obi v. State, 230 Ga. App. 476, 477 (3) (496 SE2d 556) (1998).

       (Citation and punctuation omitted.) Sparks, supra.

       See Court of Appeals Rule 27 (c) (3) (i).

       See Beecher v. State, 240 Ga. App. 457, 459 (3) (523 SE2d 54) (1999).

        Sparks, supra.

       229 Ga. App. 94, 96 (2) (493 SE2d 246) (1997).

       Id.

       Id.

       Id.

       Id.

       See id.; Aikens v. State, 241 Ga. App. 816-817 (527 SE2d 916) (2000); Flanigan v. State, 238 Ga. App. 296, 297 (2) (517 SE2d 569) (1999).


author: Barnes, Judge.

text:
    A01A1522.
    HARRIS v. THE STATE.
    (554 SE2d 606)
   Barnes, Judge.

Michael Harris appeals from his possession of cocaine conviction, contending the trial court erred by reseating two jurors struck by the defense after the state challenged the defendant’s use of peremptory strikes under Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). Because the record in this case shows that the trial court combined steps two and three of the three-part test used to determine whether a party racially discriminated during the exercise of its peremptory strikes of prospective jurors, we must reverse.

In Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995), our Supreme Court held that a trial court must establish, on the record, that it has applied a three-part test to a party’s claim of discrimination in the use of peremptory strikes.

First, the party challenging a strike has the burden of making a prima facie showing of discrimination. The proponent of the strike must then produce an explanation for the strike which is race-neutral and non-discriminatory on its face, but is not required to enunciate an explanation that is persuasive, or even plausible. The burden of proving that the proffered explanation is merely pretext for discrimination then shifts back to the challenging party.

(Citations, punctuation and emphasis omitted.) O’Neal v. State, 226 Ga. App. 224-225 (1) (482 SE2d 478) (1997).

In this case, the record shows that the trial court found that defense counsel failed to give a “racially-neutral reason” for striking two jurors and reseated them. The record, however, shows that defense counsel did offer race-neutral explanations for the strikes.

A neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral. Furthermore, although the proponent of the strike must provide a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising challenges, what is meant by a “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection.

Decided September 6, 2001

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Jackson, supra, 265 Ga. at 898-899 (2). Defense counsel struck the two jurors in this case based on either their employment, knowledge gained through their spouse’s employment, or ability to stay focused during the trial and jury deliberations. These explanations do not relate to the race of the prospective jurors, and the trial court clearly erred by finding they were not race-neutral explanations.

As established by Jackson, the proper procedure for a trial court to follow in analyzing a party’s reason for its peremptory strike is to accept the strike if it is facially neutral, then require the opponent of the strike to prove that the proffered reason is merely a pretext for discrimination. In this case, the trial court simply ruled that [Harris’s] proffered reasons were not race-neutral. Its ruling indicates the trial court likely combined steps two and three of the test and found the reasons given were pretextual. However, Jackson dictates that the trial court must engage in the three-part analysis and abide by the shifting burdens of proof set forth in Purkett [v Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995)]. To combine the steps, the Court has held, improperly shifts the ultimate burden of proof to the striking party. Jackson, supra at 898-899. The record in this case does not clearly establish that the trial court applied each prong of the three-part test. Under these circumstances, the Supreme Court of Georgia has concluded that the jury including the two reseated jurors was illegal, and [Harris’s] conviction must be reversed and this matter remanded for a new trial. [Cits.]

O’Neal, supra, 226 Ga. App. at 225-226 (1).

Judgment reversed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A1575.
    COLVIN v. BRENTWOOD MANOR, LTD. et al.
    (554 SE2d 604)
   Barnes, Judge.

Mónita Colvin sued Brentwood Manor, Ltd., her residential landlord, and Warshaw Properties, Inc., property manager of Brent-wood Manor Apartments (hereinafter collectively “landlord”), alleging she was injured because, while leaving her apartment building, she tripped due to the landlord’s failure to maintain proper lighting outside the apartment complex. The trial court granted the landlord’s motion for summary judgment, and Colvin appeals. For the reasons that follow, we reverse.

“To prevail on summary judgment, the movant must demonstrate that no genuine issues of material fact remain and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law.” (Punctuation and footnote omitted.) Kitchens v. Keadle Lumber Enterprises, 249 Ga. App. 831 (549 SE2d 781) (2001). A defendant meets this burden by showing 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 plaintiff’s case. Id. Once the defendant discharges its burden, the plaintiff must point to specific evidence giving rise to a triable issue of fact. Id. On appeal, we review the trial court’s grant of summary judgment de novo, “viewing the evidence and all reasonable conclusions and inferences drawn from it in favor of the nonmovant.” Martin v. Consolidated Stores Corp., 248 Ga. App. 812, 813 (547 SE2d 380) (2001).

Viewed in this light, the record shows that about 11:00 p.m. on a Friday, Colvin tripped on a bunched-up mat on the stoop outside the front door of her apartment building and fell down the steps. She could not see that the mat was bunched up because both an entryway light and a floodlight at the top of the building were out. The only witness to the fall was her daughter, who was three or four years old at the time. The mat had been put out at least several months earlier by the landlord. It was flat when Colvin entered her building at 5:00 or 6:00 p.m. that day, after the rental office had closed for the weekend. She did not know how or when the mat became raised up in the middle, nor did she know how long the entryway light had been out. The landlord’s maintenance technician inspected the lighting at the apartment complex at night once a week, but did not know whether the entryway light was working on the night of the incident. He also inspected the hallways, including the mats, once a day.

Colvin responded to the landlord’s motion for summary judgment by listing ten facts as to which she contended a genuine issue existed, four of which related to the landlord’s regimen of lighting and mat inspection and the remainder to the lack of either backup lighting or a handrail for the stoop. The trial court granted summary judgment based on its finding that “no evidence has been presented to show that [the] landlord could have had superior, or even equal knowledge of the defects that led to the tenant’s fall and injury.” Although Colvin separately asserts ten enumerations of error, each of these alleged errors is actually a contention of a genuine issue of fact precluding summary judgment. In the argument section of her brief, Colvin asserts that these facts show the landlord’s actual or constructive knowledge of the hazards.

In Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997), our Supreme Court reiterated that “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” In this case, the trial court granted summary judgment because it found Colvin failed to show a genuine issue of material fact with regard to her landlord’s actual or constructive knowledge of the hazard. In her complaint, Colvin asserts that the hazardous condition was caused by the landlord’s failure “to maintain proper lighting outside the apartment complex so that a person exiting the building was unable to see due to the lack of lighting.” According to Colvin, the lighting was deficient for two reasons: (1) the single light was not working, and (2) the landlord should have anticipated that one light might stop working and provided two light fixtures or installed one fixture with two bulbs.

We first address the landlord’s knowledge with regard to the nonfunctioning light. Since it is undisputed that the landlord did not actually know the light was not working the evening Colvin was injured, we must determine whether constructive knowledge can be imputed to it.

Constructive knowledge can be established in two ways. First, constructive knowledge can be demonstrated by showing that an employee was positioned in the immediate vicinity and had the opportunity and means to discover and remove the hazard. . . . Second, constructive knowledge may be shown by evidence that the alleged hazard was present for such a length of time that it would have been discovered had the proprietor exercised reasonable care in inspecting the premises.

Lee v. Food Lion, 243 Ga. App. 819, 821 (534 SE2d 507) (2000). Colvin cannot use the first method of showing constructive knowledge because all of the landlord’s representatives had left the premises at the time of her injury. Thus, this case turns on the second method of proving constructive knowledge.

Decided September 6, 2001.

Zachary & Segraves, Rick S. Sexton, for appellant.

Berlon & Timmel, James T. Perry, for appellees.

In Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998), we held that a plaintiff need not establish how long the hazardous condition has existed if the defendant fails to establish “that reasonable inspection procedures were in place and followed at the time of the incident.” In this case, the only testimony in the record about light inspections was the maintenance technician’s testimony that “we walk the property once a week at night.” When we construe this testimony in the light most favorable to Colvin, the nonmoving party, we cannot find that the landlord has shown that reasonable inspection procedures were followed at the time of the incident. The maintenance technician’s statement merely says that a weekly inspection schedule was in place at the time, and that is insufficient. See Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 646 (2) (521 SE2d 668) (1999) (testimony that inspection procedures in place insufficient to support defendant’s summary judgment motion when no testimony inspections actually made). “In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” (Footnote omitted.) Hutchins v. J. H. Harvey Co., 240 Ga. App. 582, 585 (2) (524 SE2d 289) (1999). Thus, there is a genuine issue of fact with regard to the landlord’s constructive knowledge of the nonfimctioning light.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A1473.
    WALKER v. THE STATE.
    (553 SE2d 634)
   Phipps, Judge.

A Butts County jury convicted Claudia Walker ofvoluntary manslaughter in the stabbing death of her boyfriend. After entry of a consent order authorizing an out-of-time appeal, Walker filed this appeal. She contests the sufficiency of evidence, the admission of similar transaction evidence and her incriminating statement, and the denial of her motion to suppress. She also contends that the trial court erred in its instruction to the jury. We find no merit to any of these claims and affirm.

When viewed in the light most favorable to the verdict, the evidence shows that at about 1:00 a.m. Irvin Harris had just arrived at the home of his brother. While unloading his luggage, Harris noticed a car moving rapidly down the common driveway between his brother’s home and Walker’s. About five minutes later, the victim, 67-year-old Calloway Corley, bleeding from an abdominal stab wound, staggered from Walker’s home toward Harris. Harris heard Corley saying, “help me, help me.” Then, “right before I got up to him he fell over on the side of the driveway in the weeds.” After collapsing, still holding his hand to his chest, Corley repeatedly said, “she stabbed me, she stabbed me in the heart.” Harris’s sister-in-law called 911, and emergency assistance and law enforcement personnel arrived.

Concerned about other possible victims, Sergeant Robert Smith knocked on Walker’s door and heard loud music anda television playing, but no one came to the door. Smith then entered Walker’s trailer. During the walk-through, Smith did not find any other victims but noticed drops of blood on the floor and blood spattered on top of a bedspread. The stabbing had apparently occurred in the master bedroom, and a trail of blood led from that room down the hallway and through other rooms to an exit door. No items were seized at the time. Later, after procuring a warrant, Smith executed it accompanied by Deputy Michael York who videotaped the crime scene. This video portrayed a trail of blood on the floor and bloody hand prints on a dooijamb and also showed several large knives left soaking in a basin of water in the kitchen sink. Several items of physical evidence were seized.

Corley sustained massive internal injuries and during surgery received 15 units of blood. The operating surgeon, Thomas J. Hunt, M.D., described the stab wound as piercing through the right chest, a lung, the diaphragm, and the liver and lacerating a major vein to the heart. This extensive damage and trauma eventually led to “multiple organ failure.” Dr. Hunt estimated that a sharp knife about eight inches long and an inch and a half wide had inflicted the injuries. In Dr. Hunt’s expert medical opinion, the survival rate for this type of injury is “about zero,” and Corley’s prognosis was “extremely poor” from the start. Dr. Hunt testified that “[h]e was one of the few with this injury that got out of the operating room alive.”

Corley died about three weeks after being stabbed, while being transported by an advanced life support unit to another hospital. James Byron Dawson, M.D., the director of the Georgia Crime Lab and medical examiner for the State, performed an autopsy. In Dr. Dawson’s expert opinion, “[Corley] died as a result of delayed effects associated with the stab wound.”

A fugitive squad apprehended Walker in Gwinnett County, and she was transported back to Butts County. Before making a custodial statement, Walker was provided Miranda warnings. Walker admitting stabbing Corley while she was on top of him “having sex” because “that was the best time.” By her account, she had stabbed Corley because he had slapped her around and raped her.

Before trial, the State notified Walker of its intent to introduce evidence of two earlier incidents in which Walker had assaulted other men, Danny Chamlee and Earl Gilbert. At the Williams v. State hearing, the prosecutor stated that evidence about these prior incidents would show Walker’s course of conduct and bent of mind. During the incident involving Chamlee, Walker had cut him on his side with a knife while he lay in bed. Although the trial court refused to permit testimony pertaining to the Gilbert shooting incident, it decided to allow evidence about the Chamlee stabbing incident.

During the trial, the court provided precautionary instructions before Chamlee took the witness stand. Chamlee testified that he and Walker had dated for about five or six years. One night, after an argument, he locked Walker out of his house. Later that night while he lay in bed, Walker suddenly attacked him with a knife and tried to stab him. According to Chamlee, he had been asleep but awakened when Walker unexpectedly appeared in the doorway. Chamlee managed to deflect the knife blade to avert serious injury. Chamlee testified that he was unarmed and Walker was angry at being locked out. Chamlee also described a second incident when Walker had suddenly pulled a gun and tried to shoot him.

1. Walker contends that the evidence was not sufficient as a matter of law to support a guilty verdict because the State did not prove that the stabbing caused Corley’s death since Corley died from “apparent cardiac arrest” and had otherwise been in poor health.

The test for determining causation in homicide cases is:

Where one inflicts an unlawful injury, such injury is to be accounted as the efficient, proximate cause of death, whenever it shall be made to appear, either that (1) the injury itself constituted the sole proximate cause of death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.

Applying that test here, Dr. Hunt testified that Corley’s injuries were so extensive that his prognosis was “extremely poor.” While Corley did manage to recover somewhat from those injuries, Dr. Dawson testified that Corley’s sudden death was attributable to the delayed effects of the stabbing. Since the testimony of a single witness is generally sufficient to establish a fact, this medical evidence was plainly adequate to authorize the jury to conclude that Corley died as the result of homicide.

2. Walker mistakenly contends that the trial court erred in admitting the similar transaction evidence without having required sworn testimony and cross-examination at the pre-trial hearing. On the contrary, during a similar transaction hearing, there is no per se right to an evidentiary hearing or any mandatory obligation on the part of the State to produce testimonial evidence.

3. Walker asserts that the trial court erred in finding her confession was free and voluntary within the meaning of Jackson v. Denno.

The voluntariness of a custodial statement must be proven by the State by a preponderance of the evidence. Unless clearly erroneous, factual and credibility determinations made by the trial court must be affirmed. Here, at the Jackson-Denno hearing, the State presented evidence that after freely signing a waiver of rights form, Walker agreed to answer questions from Captain Michael Overbey, the chief investigator on the case. Overbey denied making any promises or threats. Walker responded to various questions and implicated herself in stabbing Corley. But when the inquiry sought to explore whether Chamlee had raped her before she shot at him, Walker abruptly invoked her right to counsel. The trial court verified that Walker had not exhibited signs of physical injuries or symptoms of physical or mental impairment at the time of her incriminating remarks. Walker never repudiated her statement. The trial court’s determination is supported by evidence and is not clearly erroneous.

4. Walker contends that the trial court erred in denying her motion to suppress the evidence obtained during a search of her home. But, because Walker failed to offer support for this purported error by citation of authority or argument, it is deemed waived under Court of Appeals Rule 27 (c) (2).

5. Walker contends that the trial court incompletely charged the jury on the defense of justification. She claims that this area of law underwent a fundamental change with judicial recognition of the “battered person syndrome” defense.

Decided August 7, 2001

Reconsideration dismissed September 7, 2001.

William A. Fears, for appellant.

Claudia Walker, pro se.

Richard G. Milam, District Attorney, for appellee.

The battered person syndrome describes a series of common characteristics that appear in individuals who are abused physically and psychologically for an extended period of time by a dominant and controlling figure in their lives. “[T]he psychological abuse inflicted on the accused must have been of such an extreme nature that it engendered in the accused a ‘reasonable belief in the imminence of the victim’s use of unlawful force.’ [Cit.]”* In Smith v. State, the Supreme Court of Georgia held that in battered person syndrome cases, a modified jury instruction on justification should be given when authorized by the evidence and requested by the defendant. But here, Walker did not testify, offered no evidence on her own behalf, and never requested such a charge. Therefore, no error has been shown.

6. Walker asserts that the trial court erred by giving a burden-shifting and repetitive charge to the jury on the crimes of voluntary manslaughter and aggravated assault. The record belies these claims. The trial court properly charged on these offenses, including a charge on the State’s burden when the defense of justification is raised. After commencing deliberations, the jury requested a “better definition of aggravated assault versus manslaughter.” After the jury was recharged on those two offenses, defense counsel objected because part of the recharge had used the pronoun “she” and by the defense theory, the decedent had committed an aggravated assault on Walker.

Walker, not the decedent, was the one being tried under indictments for murder and felony murder, so the jury instructions necessarily and properly pertained to Walker. Having read and considered the charge as a whole, we find no error.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       261 Ga. 640 (409 SE2d 649) (1991).

        James v. State, 250 Ga. 655, 656 (300 SE2d 492) (1983).

       OCGA § 24-4-8; Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

        See Adams a State, 203 Ga. App. 794, 795 (1) (418 SE2d 68) (1992).

        Talmadge v. State, 236 Ga. App. 454, 457-458 (1) (e) (512 SE2d 329) (1999).

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Screws v. State, 245 Ga. App. 664, 665 (1) (538 SE2d 547) (2000).

       Id.

       See Kurnis v. State, 238 Ga. App. 323, 324 (1) (518 SE2d 725) (1999).

        Mobley v. State, 269 Ga. 738, 739 (505 SE2d 722) (1998).

        Nguyen v. State, 271 Ga. 475 (1) (520 SE2d 907) (1999).

       268 Ga. 196, 200 (486 SE2d 819) (1997).

       See Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982).


text:
    A01A0882.
    FIRST CITIZENS BANK OF CLAYTON COUNTY v. ALL-LIFT OF GEORGIA, INC.
    (555 SE2d 1)
   Barnes, Judge.

First Citizens Bank of Clayton County (“the bank”) appeals from the entry of summary judgment against it in the amount of $21,090.65 for improper payment of forged checks. Because the trial court properly held the bank strictly liable, we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in this light, the record in this case shows that All-Lift of Georgia, Inc. sued the bank for paying checks forged by an All-Lift employee during a 19-month time period. All-Lift then moved for partial summary judgment with respect to checks appearing on statements that were not mailed to All-Lift by the bank. The bank opposed the motion and filed its own motion for summary judgment on all of the forged checks it had paid. All-Lift subsequently stipulated that partial summary judgment should be entered in favor of the bank for checks appearing on statements that the bank mailed to it. Thus, the trial court considered summary judgment only with respect to those checks appearing on statements the bank did not mail to All-Lift.

On appeal, both parties rely upon OCGA § 11-4-406 to support their claim that they were entitled to summary judgment. This Code provision provides, in pertinent part:

Customer’s duty to discover and report unauthorized signature or alteration, (a) A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid. The statement of account provides sufficient information if the item is described by item number, amount, and date of payment. ... (c) If a bank sends or makes available a statement of account or items pursuant to subsection (a) of this Code section, the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts, (d) If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by subsection (c) of this Code section, the customer is precluded from asserting against the bank: (1) The customer’s unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and (2) The customer’s unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding 30 days, in which to examine the item or statement of account and notify the bank. . . . (f) Without regard to care or lack of care of either the customer or the bank, a customer who does not within 60 days after the statement or items are made available to the customer (subsection (a) of this Code section) discover and report the customer’s unauthorized signature on or any alteration on the face of the item or who does not within one year from that time discover and report any unauthorized indorsement or alteration on the back of the item is precluded from asserting against the bank the unauthorized signature, indorsement, or alteration.

Both parties agree that the resolution of this case turns on whether the unmailed statements were “made available” by the bank. The bank asserts that the affidavit of its branch manager demonstrates that the statements were “made available.” She averred that: “The policy of the Bank is that it will not ‘hold’ a monthly account statement of any customer in the absence of a written request to do so from the individual customer himself, or, in the case of a corporate customer, from an individual authorized to act on behalf of the corporation.” When she reviewed the bank’s records, she determined that it had held ten consecutive months of All-Lift’s statements. According to the manager, these statements were “fully available to the customer at any time.” The customer could pick them up at the bank after signing a receipt for them. Finally, she stated that:

While the Bank has not yet located any “hold statement authorization” cards in its records related to Plaintiff, that does not mean that there were not records made. In fact, I believe that there were records, since the Bank would not hold monthly statements or items in the absence of a written request. However, I, along with other employees, have searched our files, and we have thus far been unable to locate any records to indicate who requested on behalf of Plaintiff that these statements be held.

The president of All-Lift submitted an affidavit in which he asserted that he was the only person authorized to give instructions with regard to the account and that he never authorized the bank to hold the statements.

The bank asserts it was entitled to summary judgment under OCGA § 11-4-406 because its statements were “made available” to All-Lift in two ways: (1) it actually held the statements, and (2) it complied with its internal policy of holding the statements based upon a written request by an authorized person.

After carefully reviewing the language and intent behind OCGA § 11-4-406, we find that a bank does not make statements available within the meaning of this Code section by merely holding statements and doing nothing more. Adopting the bank’s position would make the timing provisions of this Code section exceedingly difficult to apply and enforce. Without some kind of notice to the account holder about when the statement is or will become available, the account holder will not know when its time to review the statement and notify the bank of any irregularities will expire.

In this case, the bank’s policy of holding statements pursuant to the written request of a customer would probably qualify as making them available within the meaning of OCGA § 11-4-406, but the bank has produced, at best, only circumstantial evidence that such a request was made. All-Lift’s president, on the other hand, submitted an affidavit providing direct evidence that he was the only person authorized to give instructions with regard to the account and that he never authorized the bank to hold the statements. “In ruling on a motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, provided that the circumstantial evidence may be construed consistently with the direct evidence.” (Citations and punctuation omitted.) Lane v. Spragg, 224 Ga. App. 606, 607-608 (481 SE2d 592) (1997). In this case, the bank’s circumstantial evidence can be construed consistently with All-Lift’s direct evidence that it never authorized the bank to hold its statements. The bank may not have abided by its policy in this particular case, or it might have accepted a written request from an unauthorized person. As a result, the evidence fails to establish that the bank made its statements available to All-Lift pursuant to OCGA § 11-4-406.

Decided September 7, 2001.

Glaze, Glaze, Harris & Arnold, Joe M. Harris, Jr., for appellant.

Alfred L. King, Jr., for appellee.

Having reached this conclusion, we must now determine whether the trial court properly entered summary judgment in All-Lift’s favor. If a bank sends account statements or makes them available to its customer, “the responsibilities and liabilities of the bank and customer are governed by OCGA § 11-4-406.” Eason Publications v. NationsBank of Ga., 217 Ga. App. 726, 727-728 (1) (458 SE2d 899) (1995). If OCGA § 11-4-406 does not apply, a bank is “strictly liable for paying on a forged check.” Id. at 727 (1). Because OCGA § 11-4-406 does not apply in this case, the trial court properly held the bank strictly liable for its payment of the forged checks that appeared on the statements that were not mailed to All-Lift.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       We decline to delineate a specific method of notice as there are a myriad of ways in which it could be provided and we should not unduly restrict the options available.


text:
    A01A1029.
    FORREST v. THE STATE.
    (554 SE2d 735)
   Barnes, Judge.

Tannis Forrest appeals from an order denying her motion to withdraw her negotiated plea. She contends the trial court erred by (1) holding that her motion was untimely; (2) finding that her plea was freely, knowingly, and voluntarily entered; and (3) failing to ascertain whether there was a factual basis for the plea. For the reasons that follow, we reverse.

The record shows that the trial court, prosecutor, Forrest’s counsel, and Forrest signed plea documents that were inconsistent about whether her plea was nolo contendere or guilty, but Forrest and her counsel signed a form stating she wanted to plead nolo contendere. Further, the trial judge’s comments during the plea hearing show that the court knew Forrest wanted to plead nolo contendere. The accusation and the final disposition form, signed at the conclusion of the plea hearing, however, state that Forrest entered a guilty plea. The transcript of the plea hearing, however, shows that the trial court did not tell Forrest of its decision to reject the nolo contendere plea.

Forrest then filed a motion to withdraw her plea because it was not knowingly, intelligently, and voluntarily entered and there was no factual basis for it. The trial court’s order denying Forrest’s motion to withdraw her plea acknowledges that she intended to plead nolo contendere, but states that the court decided to accept a guilty plea instead. Although addressing the voluntariness issue, the trial court denied the motion because it was untimely.

1. Forrest correctly asserts that the trial court erred by finding that her motion to withdraw her plea was not filed within the same term of court. See State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985) (court lacks jurisdiction to withdraw plea after expiration of term in which plea was entered). The record shows that Forrest’s plea was entered on June 9, 2000, and her motion to withdraw her plea was entered on July 31, 2000. Since the term of court began on the second Monday in May and the next term of court began on the second Monday in August, Forrest’s motion was filed within the same term of court that the plea was entered. See OCGA § 15-6-3 (32) (B). Indeed, the State concedes that Forrest’s motion was timely. Because the motion was timely, we will consider its merits.

2. Forrest’s second enumeration contends the trial court erred by entering a guilty plea without informing her that it was rejecting her offer to plead nolo contendere. In State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980), our Supreme Court held that

if the trial court intends to reject [a negotiated] plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced. . . ,

(Citations omitted.) See also Uniform Superior Court Rules (“USCR”) 33.10; 33.11 (A) and (D).

In Lawrence v. State, 234 Ga. App. 603, 605 (1) (507 SE2d 490) (1998), this court established a “bright line test” that requires trial courts to tell defendants explicitly that they have the right to withdraw their plea because the court intends to reject the negotiated plea. We held that the “consequences are too severe to allow vague statements or implication to supplant the definitive requirements articulated by the Supreme Court of Georgia and court rules.” (Footnote omitted.) Id. These requirements are not optional. Id. at 604.

Decided September 7, 2001.

Joseph J. Felker, Jr., for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

In this case, the trial court implicitly rejected the nolo contendere plea by stating that it would “accept your guilty plea,” but it did not exphcitly tell Forrest that the court was rejecting her offer to plead nolo contendere and that as a result she could withdraw her negotiated plea. Although the trial court points to Forrest’s failure to object when the court announced it was accepting a guilty plea, her inaction cannot waive the trial court’s failure to comply with the mandates of Germany and Lawrence.

Moreover, the consequences of a nolo contendere plea differ greatly from those of a guilty plea. A nolo contendere plea “cannot be used as an admission of guilt in any other proceeding, and cannot work any civil disqualifications to hold public office, to vote, to serve upon a jury, or any other civil disqualification imposed upon a person convicted of a crime.” (Citation and punctuation omitted.) Fortson v. Hopper, 242 Ga. 81, 83 (247 SE2d 875) (1978). See also OCGA § 17-7-95 (c). Therefore, we cannot say that this error was harmless.

Accordingly, the trial court’s order denying Forrest’s motion to withdraw her plea must be reversed. Smith v. State, 239 Ga. App. 776, 777 (521 SE2d 911) (1999).

3. Our holding in Division 2 renders Forrest’s remaining enumeration of error moot.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

       Although Germany, supra, and Uniform Superior Court Rules 33.10 and 33.11 (D) refer to “guilty plea,” we see no reason why this analysis should not also apply to a nolo contendere plea. (Emphasis supplied.) “Procedurally, a plea of nolo contendere should be handled under these rales in a manner similar to a plea of guilty.” USCR 33.1 (B).


author: Mikell, Judge.

text:
    A01A1320.
    JOHNSON v. THE STATE.
    (554 SE2d 612)
   Mikell, Judge.

Jermaine Johnson appeals the denial of his motion for discharge and acquittal. Johnson was indicted on April 10, 2000, on a single count of trafficking in cocaine. At his arraignment on May 18, 2000, he filed the following “Motion to Demand for Trial”: “COMES NOW JERMAINE JOHNSON, defendant in the above-styled case this the term said indictment was found, and there being jurors and panel qualified to try such case at this time. The defendant makes this demand for trial and ask the same be placed on the minutes, and that he be tried at this term or the next term of this court.” Walton County has four terms of court, beginning on the first and second Mondays in February, May, August, and November. Johnson was not tried during either the May or the August term of court; he subsequently filed a motion for discharge and acquittal. The case was then set for trial on January 22, 2001, during the November term of court. However, on that date, a hearing was held on Johnson’s motion. The court ruled that Johnson’s “Motion to Demand for Trial” was insufficient to trigger the sanctions of OCGA § 17-7-170. The court further determined that even if the “motion” had been a valid demand for a speedy trial, no juries were qualified and impaneled to try Johnson when he filed the document or for the remainder of the May term, so the demand did not become effective until the August term. Thus, the court ruled that the setting of Johnson’s trial during the November term of court was timely. We disagree and reverse.

1. OCGA § 17-7-170 provides:

(a) Any person against whom a true bill of indictment... is filed . . . may enter a demand for trial at the court term at which the indictment ... is filed or at the next succeeding regular court term thereafter. . . . (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged. . . .

In reviewing the trial court’s ruling that Johnson’s “Motion to Demand for Trial” was insufficient to invoke OCGA § 17-7-170, we turn to the standard recently announced in Bennett v. State?

In determining whether a defendant is entitled to the extreme relief of discharge and acquittal, the trial court must decide whether the defendant’s “demand, considering both its caption and its text, can reasonably be construed as a demand for a speedy trial under the provisions of OCGA § 17-7-170.” This Court holds that the minimum acceptable standard for such demand requires that the defendant’s demand for trial be coupled with some other language that places the State on reasonable notice that a speedy trial under the sanctions of OCGA § 17-7-170 is being invoked, i.e., a reference to trial at the next term, reference to a “speedy trial,” use of the language of the Code, or reference to the Code section.

Accordingly, the preliminary issue in this appeal is whether Johnson’s “Motion to Demand for Trial” reasonably notified the state that he was seeking a speedy trial pursuant to OCGA § 17-7-170. We hold that although the demand was not a model of clarity, it met the minimal acceptable standard set forth in Bennett. The demand asserted that there were “jurors and panel qualified to try such case at this time” and demanded that Johnson be tried “at this term or the next term of court.” Thus, the demand was coupled with two of the four possibilities specified in Bennett. It specifically referred to a trial at the next term, and it quoted other language from the Code section.

“[T]he emphasis of this Court’s review has always been on whether the true nature of the pleading was apparent to all parties and was clearly presented for what it purported to. be.” The absence of a citation to OCGA § 17-7-170 and the inclusion of the word “motion” were not fatal flaws in the document. The true nature of this pleading should have been apparent to the state. The trial court erred in holding otherwise.

We next address the issue of when Johnson’s demand for trial became effective. OCGA § 17-7-170 provides that when a person makes a demand for speedy trial, he is entitled to be discharged and acquitted of the offenses charged if he is not tried during the term in which his demand for trial is made or at the next regular term, provided there were juries impaneled and qualified to try him at each of those terms. Where a “demand is filed during a term in which there is no jury impaneled to try the case, the time allowed by the two-term requirement does not begin to rim until the term following that during which the demand was filed.”

In the case sub judice, the trial court ruled that the time did not begin to run until the August term. Initially, the court determined that by the time Johnson filed his demand on May 18, 2000, the trial court had excused the juries for the remainder of the May-July term. Accordingly, the trial court found that on that date, no jurors were impaneled and qualified to try Johnson. We take no issue with this ruling, but it does not end our inquiry.

The transcript of the hearing held on the motion for discharge and acquittal reveals that 170 jurors were summoned for duty on June 19 pursuant to an order issued by Judge Samuel D. Ozburn specially setting a death penalty trial to begin on that date. The order expressly “declares that there will be a special criminal session of the May term of Walton Superior Court commencing June the 19th.” (Emphasis supplied.) Despite its clear language, the trial court concluded that Judge Ozbum’s order created a special term of court pursuant to OCGA § 15-6-20 rather than a special session of the May term. A special term is one that is called after the adjournment of a regular term and before the beginning of the next regular term, and it is excluded from the time in which a defendant must be tried pursuant to his speedy trial demand. A special session held within a regular term, however, is not excluded. Here, Judge Ozburn clearly called a special session. There is no evidence in the record that the May term had been expressly adjourned. Moreover, it appears that a sufficient number of qualified jurors were impaneled on June 19. “[F]or felony cases pending in the superior court it would take the presence of a panel of forty-eight to fulfill the requirements of the statute.” We must conclude, therefore, that Johnson’s demand for trial was made during a term in which there were qualified juries impaneled, a sufficient number of which were available to try his case. As he was not tried during the August term of court, the denial of his motion for discharge and acquittal must be reversed.

In so holding, we are mindful of the special needs associated with juries summoned for murder trials in which the state seeks the death penalty. We appreciate a trial judge’s reluctance to interfere with a fellow jurist’s death penalty trial. Nonetheless, it is apparent that the array summoned for June 19, after allowing for “no shows” and statutory exemptions, would have yielded a plentitude of jurors to try Johnson’s case in accordance with his demand for trial, even after a jury with abundant alternates was impaneled for the murder trial. The enactments of our legislature bind this Court, and we are constrained to impose the extreme sanction mandated by OCGA § 17-7-170.

Decided September 7, 2001.

Franklin & Hubbard, William F. Holbert, Ralph J. Hunstein, for appellant.

W. Kendall Wynne, Jr., District Attorney, Eugene S. Hatcher, Jr., Assistant District Attorney, for appellee.

2. Johnson assigns error to the trial court’s failure to enter a final order on the state’s petition to modify/revoke his probation. However, the absence of a final, appealable order gives this Court nothing to review. In any event, the probation revocation proceeding is a separate matter over which this Court currently lacks jurisdiction.

3. Johnson’s remaining enumerations of error, addressing the denial of his motion to suppress and certain discovery motions, are rendered moot by our holding in Division 1.

Judgment reversed.

Blackburn, C. J., and Pope, P. J., concur.

       OCGA § 15-6-3 (2) (B).

       244 Ga. App. 149 (534 SE2d 881) (2000).

       (Citations and emphasis omitted.) Id. at 150-151 (1).

        Price v. State, 245 Ga. App. 128, 133 (2) (b) (535 SE2d 766) (2000).

       (Citations and punctuation omitted.) MacInnis v. State, 235 Ga. App. 732, 734 (510 SE2d 557) (1998).

       The order is attached as an exhibit to the state’s brief. Generally, attachments to briefs that were not also part of the record below are not considered on appeal. Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989). However, in this instance, a review of the hearing transcript reveals the contents of the order. Accordingly, we will consider it on appeal. Id.

        McGinnis v. Ragsdale, 116 Ga. 245, 246-247 (42 SE 492) (1902); Proveaux v. State, 198 Ga. App. 119, 120 (1) (401 SE2d 12) (1990).

        Barkley v. State, 179 Ga. App. 795 (348 SE2d 122) (1986).

       (Punctuation and footnote omitted.) Kirk v. State, 194 Ga. App. 801, 802 (392 SE2d 249) (1990).

        Robbins v. State, 193 Ga. App. 5, 6 (387 SE2d 18) (1989).


author: Ruffin, Judge.

text:
    A01A0987.
    HOLLIDAY v. JACKY JONES LINCOLN-MERCURY et al.
    (554 SE2d 286)
   Ruffin, Judge.

Richard Holliday appeals from the superior court’s order reversing his award of permanent partial disability benefits in this workers’ compensation case. For reasons that follow, we affirm and remand with direction.

The record shows that Holliday injured his back while working as a lube technician at Jacky Jones Lincoln-Mercury, the employer/ self-insurer (“Jones”). Jones referred Holliday to an orthopedist shortly after his injury and paid for several visits with that physician, as well as other doctors. When the orthopedist concluded that Holliday had recovered from his work injury, however, Jones refused to pay for further treatment.

Holliday subsequently filed a claim with the State Board of Workers’ Compensation, seeking temporary total disability benefits and requesting a hearing.* At the hearing, the administrative law judge (“ALJ”) framed the issue presented as follows: “Is the Claimant disabled and entitled to disability benefits and in what amount, whether it’s temporary total or temporary partial or any at all after he last worked.” Neither party objected to the ALJ’s characterization of the issue.

During the hearing, Jones asserted that Holliday had recovered from the work-related injury and presented medical evidence that Holliday had “reached his maximum medical improvement.” Holliday offered competing medical evidence. In particular, he introduced a report from Dr. Joseph Saba, who independently evaluated Holliday at the request of Holliday’s counsel. Saba concluded that, although Holliday had reached maximum medical recovery, he had “a 10% permanent partial impairment of the whole man which [was] solely related to [the work] injury.”

The ALJ found that Holliday had sustained a work-related injury that continued to limit him physically, but denied Holliday’s claim for temporary total disability benefits under OCGA § 34-9-261. Based on Dr. Saba’s report, however, the ALJ determined that Holliday had a ten percent permanent disability rating, entitling him to benefits under OCGA § 34-9-263.

Jones appealed, challenging the permanent impairment ruling. Specifically, Jones claimed it had no notice that permanent partial disability benefits were under consideration, and thus it had not been given an opportunity to be heard on the issue. The appellate division disagreed and affirmed the award, concluding that

[i]t was not error for the administrative law judge to make findings regarding [Holliday’s] entitlement to permanent partial disability benefits inasmuch as it was agreed to by the parties at the call of the case that the issue of [Holliday’s] entitlement to “any type of benefits at all after he last worked” would be within the scope of the hearing. Furthermore, the evidence which was introduced dealing with the degree of permanent partial disability was not objected to by either party.

Jones appealed to the superior court, again challenging the permanent partial disability award. The superior court reversed, finding that the ALJ improperly considered permanent partial disability benefits without notice to Jones. At Holliday’s request, we granted discretionary review of the superior court’s ruling.

1. “ TJnder the Workers’ Compensation Act the employer is entitled to notice and an opportunity to be heard prior to being required to pay benefits.’ ” In this case, we agree with the superior court that Jones was not afforded notice or an opportunity to be heard on the issue of permanent partial disability.

As noted above, Holliday originally requested only temporary total disability benefits, and the record contains no evidence that Holliday raised the issue of permanent disability benefits prior to the workers’ compensation hearing. At that hearing, the ALJ framed the issue for the parties, but did not mention permanent partial disability benefits. Instead, the ALJ explained that the issue involved whether Holliday was “entitled to disability benefits and in what amount, whether it’s temporary total or temporary partial or any at all.”

The appellate division concluded that the ALJ’s reference to “any [benefits] at all” put Jones on notice that permanent partial disability benefits were under consideration. We disagree. Without dispute, Holliday focused on temporary income benefits prior to the workers’ compensation hearing. The ALJ’s description of the issue to be tried, which referenced only temporary benefits, did not alter that focus. Thus, Jones could have reasonably concluded that the only issue to be addressed at the hearing was whether Holliday was entitled to temporary income benefits or no benefits at all. Jones argued the latter, asserting that Holliday should not be awarded benefits because he had recovered from his work-related injury. Under these circumstances, we cannot conclude that the ALJ’s statement gave Jones sufficient notice that permanent partial disability benefits were at issue and might be included in any award.

On appeal, Holliday argues that Jones implicitly agreed to litigate the permanent partial disability issue by failing to object to Dr. Saba’s report, which assigned a ten percent permanent partial disability rating. Citing OCGA § 9-11-15 (b), he claims that this evidence of permanent disability amended the relief originally requested in his WC-14 form. Assuming, without deciding, that OCGA § 9-11-15 applies in workers’ compensation cases, we find no merit in Holliday’s argument.

Under OCGA § 9-11-15 (b), “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Implied consent may be found when a party fails to object to evidence relating to a new issue. Such consent does not arise, however, “if the parties do not squarely recognize [the new issue] as an issue in the trial.” Furthermore, “[w]here a party does not object to evidence because it is relevant to an issue made by the pleadings, and there is no evidence the party offering such evidence was seeking to amend the pleadings, a non-objecting party can scarcely be held to have given him implied consent to trial of unpled issues.”

Dr. Saba’s five-page report contains one reference to Holliday’s permanent partial disability rating. The remainder of the report provides Dr. Saba’s opinions about Holliday’s condition and ability to work, evidence certainly relevant to the temporary total disability issue specifically addressed at the hearing. Thus, Jones’ consent to trying the permanent partial disability issue “will not be implied absent a clear indication [Holliday] was attempting to raise [this] issue” by introducing Saba’s report.*

No such “clear indication” appears in this case. Holliday submitted the Saba report with 11 other exhibits, making no reference to the permanent partial disability rating. Moreover, Holliday has pointed to no evidence that the parties or the ALJ ever mentioned permanent partial disability benefits or any amendment to the WC-14 form at the hearing. We cannot conclude that Jones implicitly consented to an amendment and trial on whether Holliday had suffered a permanent partial disability. Accordingly, the ALJ erred as a matter of law in addressing those benefits, and the superior court properly reversed the permanent partial disability award.

Decided August 22, 2001

Reconsideration denied September 12, 2001.

Jean W. Levy, for appellant.

Murphy & Sibley, R. Napier Murphy, for appellees.

2. Nevertheless, we recognize that Dr. Saba’s report did, in fact, address permanent partial disability. Furthermore, although Holliday’s WC-14 form apparently did not request permanent partial disability benefits, “[i]n the administration of the Workers’ Compensation Act, technical niceties of pleading and procedure are not strictly followed, and the ALJ has fall authority to hear and determine all questions with respect to a claim.”

The Workers’ Compensation Act must be interpreted liberally to provide relief to injured employees and protect employers against excessive damages awards. Construing the Act in this manner, we find that the evidence sufficiently raised the issue of permanent partial disability such that, had the parties been given sufficient notice, the ALJ could have properly addressed the issue. Accordingly, we affirm the superior court’s finding of inadequate notice to Jones, but remand with direction that the case be recommitted to the Board of Workers’ Compensation for a hearing on the issue of whether Holliday is entitled to recover permanent partial disability benefits under OCGA § 34-9-263.

Judgment affirmed and case remanded with direction.

Johnson, P. J., and Ellington, J., concur.

       The record does not include the portion of the Form WC-14 that specified the benefits Holliday sought. Both parties make clear on appeal, however, that Holliday requested only temporary total disability benefits.

       In denying temporary total disability benefits, the ALJ found that Holliday failed to establish that his disability prevented him from working.

       In addition to awarding permanent partial disability benefits, the ALJ directed Jones to pay for Holliday’s treatment by Dr. Gilbert S. Chandler, a physician to whom Holliday was referred by his authorized treating physician. Jones did not appeal this portion of the ALJ’s award.

        Chem Lawn Svcs. v. Stephens, 220 Ga. App. 239, 243 (469 SE2d 375) (1996).

       In affirming the ALJ’s award, the appellate division found that the parties agreed at the hearing “that the issue of [Holliday’s] entitlement to ‘any type of benefits at all after he last worked’ would be within the scope of the hearing.” The quote apparently attributed to the AU — “any type of benefits at all after he last worked” — is inaccurate and makes the ALJ’s statement appear all-encompassing. When viewed in context, the ALJ’s actual statement did not clearly place permanent partial disability benefits in issue.

        Chem Lawn, supra (“Since this issue was not heard or determined by the ALJ, Chern Lawn was not given notice and an opportunity to be heard and present a defense.”); see also Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998) (“There having been no notice to [the defendant] that the [court] might consider the merits of the issue of his alleged negligence, a holding that he was liable, tantamount to an award of summary judgment against him, would deny him due process.”); King v. Hawkins, 265 Ga. 93 (454 SE2d 135) (1995) (judgment granting habeas corpus petition reversed because defendant had no notice that issue not raised in petition would be litigated or considered by habeas court); Childers v. Monson, 241 Ga. App. 70, 71 (524 SE2d 326) (1999) (noting that if defendant had been properly apprised of claim plaintiff attempted to raise at the close of evidence, “he might have defended the case differently”).

       The appellate division apparently agreed with this argument, noting in its order that neither party objected at the hearing to evidence relating to the degree of Holliday’s permanent partial disability.

        Southern Discount Co. v. Kirkland, 181 Ga. App. 263, 267 (3) (351 SE2d 685) (1986); Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 137 (2) (267 SE2d 792) (1980).

        Southern Discount Co., supra.

       Id.

       Id.

       No express consent to try the permanent partial disability issue can be found in Jones’ failure to object to the ALJ’s statement of the issue at the beginning of the workers’ compensation hearing. As discussed above, the issue described by the ALJ did not put Jones on notice that permanent partial disability benefits were under consideration.

       See Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 683 (302 SE2d 701) (1983); see also Lavine v. American Ins. Co., 179 Ga. App. 898, 900 (348 SE2d 114) (1986) (superior court may reverse an award by the Workers’ Compensation Board if errors of law were committed).

        Chem Lawn, supra at 244.

       Id.

       See id.


text:
    A01A1073.
    FOWLER v. CITY OF WARM SPRINGS.
    (554 SE2d 301)
   Ruffin, Judge.

Timothy Fowler appeals the trial court’s order adopting the special master’s report in this condemnation action. For reasons that follow, we affirm.

An abandoned railroad right-of-way in Warm Springs has been the subject of several lawsuits and appeals. The present appeal arises out of a condemnation action filed by the City of Warm Springs (“the City”), which petitioned to condemn a portion of that right-of-way (“the property”) in August 1997. Fowler, who owned land adjoining part of the right-of-way, answered the condemnation petition, claiming prescriptive title to the property through adverse possession.

The trial court appointed a special master to hear evidence regarding the property. Following a hearing, the special master rejected Fowler’s adverse possession claim and determined that the City already held title to the property, obviating any monetary award. Less than ten days later, the trial court adopted the special master’s report. Fowler appealed, claiming, among other things, that the trial court erred in adopting that report before the ten-day period for filing objections expired. We agreed, reversed the judgment, and remanded with instructions that the parties be allowed to file objections to the special master’s report.

On remand, Fowler filed numerous objections, raising procedural and substantive arguments. After a hearing, the trial court overruled Fowler’s objections and again adopted the special master’s report. Fowler now appeals the trial court’s ruling.

1. Fowler first argues that he, rather than the City, owns title to the property. According to Fowler, he is the only landowner adjacent to the portion of the abandoned right-of-way at issue. He contends, therefore, that under Johnson & Co. v. Arnold, fee simple in that part of the right-of-way vested in him when he took title to the adjoining property.

Fowler has not pointed to any evidence that he raised this argument before the special master. In his answer to the City’s condemnation petition, Fowler claimed title through adverse possession, rather than conveyance. The record does not include a transcript of the special master’s hearing, leaving us in the dark as to issues that might have been raised orally. At the hearing before the trial court, however, Fowler did not claim that he presented this argument to the special master. Instead, he asserted that the special master had a duty to ferret out and rule upon all potential issues that the parties could have raised, even if they failed to do so.

We disagree. As discussed in Fowler’s prior appeal, claims forming the basis for exceptions to a special master’s award “must first have been raised and ruled on by the special master himself and preserved on a record which the trial court could have examined.” The record contains no evidence that Fowler argued before the special master that ownership in the property at issue vested in him when he took title to the adjacent land. Thus, “[b]ecause Fowler failed . . . to raise [this claim of title] before the special master or to preserve a record of such, he has waived appellate review of [it].”

2. In his second and third enumerations of error, Fowler argues that procedural and jurisdictional defects plagued the special master proceeding, demanding reversal. Specifically, he claims that the City neglected to comply with service requirements and that the special master’s hearing was improperly continued. He further argues that the special master and the trial court lacked jurisdiction in this condemnation proceeding to determine title to the property.

Fowler raised these same arguments during his prior appeal in this case, and we decided each adversely to him. We found that he failed to preserve for review his procedural arguments relating to service and timeliness of the special master’s hearing. In addition, we rejected his jurisdictional claim, concluding that “the special master and the [trial] court have the power to determine who has an interest in the property and what that interest is.” These rulings are binding on Fowler, and he cannot relitigate the issues. Accordingly, Fowler’s second and third enumerations of error present no basis for reversal.

Decided August 22, 2001

Reconsideration denied September 12, 2001

William A. Adams, Jr., Owen J. Adams, for appellant.

Timothy Fowler, pro se.

Tyron C. Elliott, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Scales v. Fowler, 269 Ga. 87 (495 SE2d 32) (1998); Descendants of Bulloch, Bussey & Co. v. Fowler, 267 Ga. 79 (475 SE2d 587) (1996); Fowler v. City of Warm Springs, 238 Ga. App. 601 (519 SE2d 703) (1999).

       See OCGA § 22-2-100 et seq.

       The City alleged in its condemnation petition that, in a separate quiet title proceeding, the trial court had already determined that the City owned the property. Nevertheless, the City filed the condemnation action because that ruling was on appeal, raising uncertainty regarding the title. To secure “prompt judicial ascertainment of any questions connected with the matter,” the City sought to condemn the property and determine its value in case another claimant was found to be the owner. The Supreme Court subsequently affirmed the trial court’s ruling in the quiet title proceeding. Scales, supra.

        Fowler, 238 Ga. App. at 602.

       Id. at 602-603.

       91 Ga. 659, 666 (1) (18 SE 370) (1893) (“It is favorable to the general public interest that the fee in all roads should be vested either exclusively in the owner of the adjacent land on one side of the road, or in him as to one half of the road, and as to the other half, in the proprietor of the land on the opposite side of the road.”).

        Fowler, 238 Ga. App. at 601 (1). See also Simmons v. Webster County, 225 Ga. App. 830, 833 (1) (485 SE2d 501) (1997) (“The trial court cannot rule on. . . exceptions to the special master’s resolution of non-value items unless the items or issues are raised before the special master, ruled on, and preserved by a record which the trial court can examine.”) (citation and punctuation omitted).

        Fowler, 238 Ga. App. at 602 (1). We further note Fowler’s admission that the property at issue here is “essentially the tract” involved in the Scales appeal, in which he was a named party. The Scales decision affirmed the trial court’s ruling that the City owned the land in question. Scales, supra. Fowler makes no effort to explain why that determination is not binding in this case. See, e.g., OCGA § 9-12-40 (“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”).

        Fowler, 238 Ga. App. at 601-602.

       Id. at 602.

       Id. at 602 (2).

       See Ga. Farm &c. Ins. Co. v. Osting, 240 Ga. App. 833 (525 SE2d 380) (1999); In re Spruell, 237 Ga. App. 259, 260 (515 SE2d 190) (1999).


author: Eldridge, Judge.

text:
    A01A1189.
    CITY OF POULAN et al. v. HODGE.
    (554 SE2d 233)
   Eldridge, Judge.

This workers’ compensation claim involves the tolling of the statute of limitation because the claimant had not reached maximum medical improvement (“MMI”) prior to the termination of benefits by the insurer for a compensable injury of January 9, 1989; the claims for change of condition and permanent partial disability (“PPD”) were not filed until August 12, 1999. Both the administrative law judge (“ALJ”) and the appellate division found that the statute of limitation, OCGA § 34-9-104 (b), had run; the superior court reversed on an error of law as to the application of OCGA § 34-9-105 (c) (5), because the claimant had not been determined to have reached MMI prior to determination of the absence of permanent disability and voluntary termination of benefits. We reverse and remand to the Board of Workers’ Compensation for determination of the facts in light of this opinion correcting errors of law as to the interpretation of the applicable law.

The claimant, who had no pre-existing or subsequent lower back condition or injury, compensably injured his lower back when he fell, hitting his lower back across the edge of a backhoe bucket. The employer-insurer voluntarily paid temporary total disability benefits until March 20,1989, when the claimant returned to light-duty work.

Dr. C. B. Gillespie continued to treat the claimant for a little over two months until May 22, 1989, when the doctor released the claimant to return to full-duty work without making a determination of MMI.

From the March 7, 1989 MRI, Dr. Gillespie found “minimally abnormal lumbar MR study demonstrating mild to generative disk changes at L4 through L5 through SI interspaces.” However, this medical report failed to indicate MMI, although there was a labeled box number 7 to indicate this on the form, which was left blank. However, Dr. Gillespie checked “no” as to whether claimant had any permanent disability. The last visit was on April 27, 1989. Section 16, “Date of Final Weekly Payment,” was left blank as was Section 17, addressing permanent injury. Dr. Gillespie never filed a WC-20 “Final Medical Report,” and filed only a WC-18 “Medical Report.” At no time did Dr. Gillespie make a MMI determination prior to making an absence of permanent disability determination.

The claimant returned to work on March 20, 1989, and worked for the employer until November 27, 1989, doing light- and normal-duty work, when he went to work for a different employer for whom claimant worked until December 23, 1989. Claimant contended that he left the employer, because the work was too hard on his back. The employer contended that claimant quit to get more money and an easier job, although the record showed that claimant worked only for three weeks. The claimant claimed that he quit the new job because his back got worse.

The claimant’s back continued to worsen until September 1, 1992. On June 17, 1992, claimant was treated by Dr. William L. Hornback III who diagnosed a condition consistent with a herniated nucleus pulpolsus at L5-S1 on the left. On September 1,1992, claimant experienced a relapse of his prior condition, and on September 15, 1992, Dr. Hornback referred claimant to Dr. Lowery for disc excision at L4-L5. On November 4,1992, claimant underwent surgery for an L4-L5 bulging disc, which was confirmed through surgery. Dr. Hornback reported that the claimant did not reach MMI and PPD status until after surgery, which was the first report of MMI made by any physician.

1. The City of Poulan and Travelers Indemnity Company contend that the superior court erred because OCGA § 34-9-104 (b) barred the claim. We do not agree, because the ALJ and the appellate division erred in their interpretation of OCGA § 34-9-104 (b) and applicable case law applying the statute of limitation.

The statute of limitation contained in OCGA § 34-9-104 (b) is tolled until “the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made under this chapter.” Under OCGA §§ 34-9-1 (5) and 34-9-263 and case law applicable to the statute at that time, there must be a MMI determination prior to a determination of either a permanent total disability or PPD rating, because the legal determination of permanent disability cannot be made prematurely before the claimant has reached MMI. State of Ga. v. Birditt, 181 Ga. App. 356 (352 SE2d 203) (1986). Such MMI determination was not done in this case until after claimant’s operation. Dr. Gillespie never rendered a MMI before rendering his lack of disability opinion; the MMI is the condition precedent to rendering a legal disability rating on the claimant that causes the statute of limitation to commence running. Failure to render a MMI prior to or at the same time before rendering a disability rating prevents the statute of limitation from commencing to run, because there exist potential unpaid claims as to temporary partial disability or PPD, a potential benefit and final benefits potentially owed but not “actually made.” OCGA § 34-9-104 (b). See also MARTA v. Ledbetter, 184 Ga. App. 518, 519 (361 SE2d 878) (1987); State of Ga. v. Bardge, 211 Ga. App. 307, 308 (439 SE2d 1) (1993); State of Ga. v. Birditt, supra at 357-358.

As the name implies, permanent partial disability requires a finding of permanency — the loss must be permanent in quality. OCGA § 34-9-263. In the case [before the court], the board found that [the] claimant’s injuries were not permanent in quality since claimant did not reach maximum improvement. . . . But Davis v. Gen. Motors Corp., 166 Ga. App. 401 [(304 SE2d 402) (1983)] cannot be interpreted as eliminating the permanent in quality requirement set forth in OCGA § 34-9-263.

(Punctuation omitted.) State of Ga. v. Birditt, supra at 357-358. The claim in that case was held to be premature, because there was no MMI prior to seeking PPD.

When potential temporary partial disability or PPD payments have not been paid because the employer/insurer stops payment upon the claimant’s return to work, such unilateral act by the employer/insurer tolls the running of the statute of limitation by leaving potential claims unpaid. OCGA § 34-9-104 (b); State of Ga. v. Bardge, supra at 308-309; Wesleyan College v. Mains, 207 Ga. App. 562 (428 SE2d 577) (1993); MARTA v. Ledbetter, supra at 519; Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 160-162 (338 SE2d 742) (1985).

Absent a MMI determination, there can be no legal disability rating so that any “potential” benefits under Holt’s Bakery v. Hutchinson, supra at 159-161, can be finally determined by the ALJ. “What is meant by ‘potential’ is not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time although no claim was made for it.” MARTA v. Ledbetter, supra at 519; see also Justice v. R.D.C., Inc., 187 Ga. App. 198, 200 (369 SE2d 493) (1988). Absent a MMI, any disability rating is premature, and no award can be made for a permanent disability. See State of Ga. v. Birditt, supra. In Justice v. R.D.C., Inc., supra, there had been a MMI determination and a PPD with a total payout of benefits prior to seeking a change of condition award; such was not the case here where no MMI was made prior to the surgery.

The ALJ failed to find that the MMI was a legal condition precedent to a determination of disability and that no MMI and valid disability rating had been made prior to the surgery so that “potential” benefits existed, tolling the running of the statute.

2. The employer/insurer contends that it cannot be liable for both PPD and temporary total disability benefits at the same time, as the judgment of the superior court reads. We agree that both benefits cannot be recovered at the same time. However, the ALJ must reconsider the facts in light of Division 1.

The employer/insurer paid temporary total disability benefits to the claimant prior to his return to work but ceased such payments without seeking an award for change in condition, when the claimant was potentially entitled to temporary partial disability or PPD benefits under the facts. See generally MARTA v. Ledbetter, supra at 519. Therefore, a question existed whether temporary total or partial disability benefits were owed until there was a determination of a change in condition. However, prior to any hearing, it appears from the record that the claimant may have reached a PPD status through the worsening of the original injury; after the operation, from what appears was the same injury without pre-existing or subsequent injury, claimant reached MMI. See American Motorist Ins. Co. v. Corbett, 144 Ga. App. 845, 846 (2) (242 SE2d 748) (1978). However, claimant’s work for the employer and several weeks work for another employer may raise questions as to causation for determination by the ALJ, which factual determination was not previously made in light of Division 1. See Independent Life &c. Ins. Co. v. Cox, 207 Ga. App. 402 (427 SE2d 862) (1993).

Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65) (1976), applies, because only the ALJ and the appellate division can determine the facts in this case under the applicable law; but they misconstrued the law applicable to the facts and must reconsider the facts in light of this opinion. The ALJ must reconsider the evidence in light of the law, because the superior court cannot make such factual determination from the record.

The employer/insurer urges the Court to find that the claimant failed to carry his burden of proof of change of condition. Claimant would appear to have met his burden of proof to establish the change in condition at the hearing under OCGA § 34-9-104 from the record. He established not only his incapacity to perform strenuous duties but also his inability to find or hold employment because of his injury. Thus, claimant has “show[n] that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury,” which is a loss of earning power caused by a compensable injury after the exercise of diligence to obtain employment when terminated for the inability to perform work offered. (Citation and punctuation omitted.) Maloney v. Gordon County Farms, 265 Ga. 825, 827 (462 SE2d 606) (1995). However, neither this Court nor the superior court can make this factual determination, because the ALJ never made this determination, which on remand must be made by the ALJ.

Thus, on remand, the judgment of the superior court is reversed and vacated as is also the award of the ALJ and the appellate division of the Board of Workers’ Compensation. It is for the ALJ to determine when temporary partial or total disability ceased, when PPD commenced, causation, and benefits in light of this opinion.

Decided August 16, 2001

Reconsideration denied September 12, 2001

Shivers & Associates, Edwin G. Russell, Jr., for appellants.

Woodall & Pflepsen, Keith A. Pflepsen, for appellee.

Judgment reversed, vacated and remanded with instructions.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.

       The Workers’ Compensation statute of limitation in effect in 1989 was Ga. Code Ann. § 114-305 (a):
      The right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury, the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.
      Ga. L. 1978, pp. 2220, 2221, § 2.

       The definitional section applicable in 1989, regarding a required permanency rating, stated “[i]n all cases arising under this chapter, any percentage of disability or bodily loss ratings shall be based upon ‘Guides to the Evaluation of Permanent Impairment’ or any other medical book or guide.” OCGA § 34-9-1 (5) (1988 ed., paragraph (5) was deleted by Ga. L. 1996, p. 1291, § 1, and was made Rule 263). Workers’ Compensation Act Title 34 Appendix, Rule 263:
      Determination of Disability Rating. Within 30 days after the employee is entitled to weekly benefits under subsection (c) of OCGA § 34-9-263, the employer/insurer shall have the employee’s injured body member rated for disability pursuant to the “Guides to the Evaluation of Permanent Impairment, Fourth Edition” published by the American Medical Association, furnish a copy of the medical report of rating to the employee, and commence payment not later than 21 days after knowledge of the rating. The employer/insurer are presumed to have knowledge of the rating not later than 10 days after the date of the report establishing the rating.
      Revised July 1, 1996.

        State of Ga. v. Bardge, 211 Ga. App. 307, 308 (439 SE2d 1) (1993); State of Ga. v. Birditt, 181 Ga. App. 356, 357-358 (352 SE2d 203) (1986).