text:
    A94A0757.
    LOWERY v. THE STATE.
    (443 SE2d 304)
   McMurray, Presiding Judge.

Defendant Lowery appeals his conviction of two counts of aggravated assault and of possession of a firearm by a convicted felon. Held:

The victims on the two counts of aggravated assault were defendant’s son and the son’s girl friend. The State presented evidence that the victims made a trip to Fannin County to visit defendant and other family members. A family fishing trip ensued involving defendant, his two sons, and a friend of defendant’s. After the fishing trip the victim-son drove back to defendant’s home with him. The victim-son and defendant were concerned about the absence of defendant’s other son and friend who had driven back separately, so they, along with defendant’s wife, went driving around looking for them. During this drive an argument involving familial issues erupted and defendant stopped the vehicle. The argument continued with the victim-son and defendant standing near the vehicle until defendant walked over to the truck, got a handgun and pointed it at the victim-son, who ran away. A shot was fired, and defendant drove away while the victim-son ran to a nearby store. Later, at defendant’s home the other victim, the girl friend of the victim-son, encountered defendant, who was still accompanied by his wife, and who pointed a gun at her, ordered her off his property, and threatened her.

The State rested after the testimony of the two victims. Defendant’s first witness was his wife, who first testified as to various relationships in the family and then acknowledged that the victim-son had been put out of a vehicle following an argument. However, defendant’s wife denied that defendant had a firearm. Defense counsel then asked if there was any reason defendant did not have a gun and defendant’s wife answered: “Because he’s not allowed to carry one. Because he’s a convicted felon.” Shortly thereafter, at a bench conference held outside the hearing of the jury, the State raised the contention that the introduction of this evidence opened the door for the State to cross-examine defendant’s wife concerning his felony convictions and defense counsel acknowledged that the State was entitled to do so. Both of defendant’s enumerations of error on appeal are centered on these circumstances.

First, defendant contends that the trial court erred in ruling that the door for placing the defendant’s character in issue was opened. However, this enumeration lacks merit since there was no objection preserving this issue for appeal nor any ruling by the trial court on this issue which we may review. The trial court’s only remark on this matter was to note for the record the acknowledgment made by defense counsel. Gambrel v. State, 260 Ga. 197, 201 (5) (391 SE2d 406); Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395).

The remaining enumeration of error contends that defendant was denied his right to effective assistance of counsel. This contention is predicated upon the trial counsel’s line of questioning quoted above which resulted in testimony concerning defendant’s prior felony convictions. Defendant’s appellate counsel maintains that this evidence was detrimental to the defense, and was inadvertently elicited by trial counsel, who was also deficient in failing to attempt to limit the scope of the State’s cross-examination. However, upon the hearing on defendant’s extraordinary motion for new trial, the burden was on defendant to present evidence to support his claim of ineffective assistance. The presence of defendant’s trial counsel was not secured for that hearing and the trial court was authorized to conclude from the evidence presented that trial counsel’s elicitation of evidence as to defendant’s criminal record was not inadvertent, but was deliberately done to support the defense. A decision on whether or not to place a defendant’s character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel. Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590); Rogers v. State, 210 Ga. App. 164 (2) (435 SE2d 457); Rachell v. State, 210 Ga. App. 106, 107 (3) 108 (435 SE2d 480); Sydenstricker v. State, 209 Ga. App. 418, 420 (3), 421 (433 SE2d 644); Owens v. State, 207 Ga. App. 153, 154 (1), 155 (1) (427 SE2d 529).

Decided April 11, 1994.

McDonald, Kinnamon & Thames, Todd L. Ray, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A0369.
    THE STATE v. WEBB.
    (443 SE2d 630)
   Birdsong, Presiding Judge.

The State of Georgia appeals the trial court’s suppression of a test showing .30 percent blood-alcohol content in Curtis Stacey Webb following his arrest for driving while under the influence.

Webb was stopped at a roadblock about 2:00 a.m. The officer who stopped him was immediately made aware that Webb is hearing and speech impaired. The arresting officer communicated his implied consent rights to Webb through Webb’s friend, Kendall, who had been in the car behind Webb’s car when Webb was stopped. Kendall used sign language to convey the officer’s statements and requests to Webb, and Webb indicated that he understood. The officer showed Webb a form with the implied consent laws printed on it and indicated each line with his finger so that Webb could read it. The interpreter initialed the card where Webb signed it. It was not contended at the hearing on motion to suppress that the interpreter was incompetent or did not adequately convey the officer’s statements and requests. There was evidence from Webb’s mother that Webb could not have fully understood the language of the statement even by sign language unless the words were simplified for him. The trial court found as stipulated that “if the [arresting] officers had called the Georgia Registry of Interpreters [see OCGA § 24-9-101 (4)] between the hours of 5:00 p.m. and 8:00 a.m., when this arrest occurred, they would have reached an answering machine.”

The trial court found that “if the steps required in OCGA § 24-9-103 had been followed, and defendant did not understand the warnings after a qualified interpreter had translated them ... or if the defendant had not understood the warnings after reading them more than one hour from the time that an interpreter was requested [see OCGA § 24-9-103 (b)], then the warnings and the results of the Intoximeter would have been admissible [and] . . . State v. Tosar, [180 Ga. App. 885 (350 SE2d 811)] . . . might have applied.” But as the officer did not wait one hour before determining that a “qualified interpreter” (see OCGA § 24-9-101 (6)) was not available, the trial court held that the implied consent warning was given in violation of § 24-9-103 and that the blood tests were inadmissible. Held:

The trial court erred in suppressing this evidence.

OCGA § 24-9-103 (b) (1), provides: “No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided; and no . . . evidence acquired from the hearing impaired person shall be admissible in any criminal . . . proceeding unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter.” “Qualified interpreter” is defined at OCGA § 24-9-101 (6).

The implied consent laws differ from others giving certain rights in that every driver’s consent to a chemical test for intoxication is implied by law. The legislature has declared as a matter of law that persons having an excess of .10 percent grams blood-alcohol concentration “constitute a direct and immediate threat to the welfare and safety of the general public.” (Emphasis supplied.) OCGA § 40-5-55 (a). “Therefore, any person who operates a motor vehicle . . . throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392 [as to advisement of driver of his right to an additional test], to a chemical test or tests. . . . The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways.” (Emphasis supplied.) Id.

Under the implied consent laws, every driver is deemed to have given his consent to a chemical test for alcohol content, subject only to the duty “placed upon an officer ... to advise the testee that he is entitled to an independent test of his own choosing. Once that duty is fulfilled by the officer, the statutory obligation is satisfied.” Snelling v. State, 176 Ga. App. 192, 193 (335 SE2d 475); Tosar, supra. In all cases the court is required to find only that the implied consent law was conveyed to the suspect driver. The State is under no duty to prove the suspect driver fully understood his rights under the implied consent law. Tosar, supra. In this respect a hearing impaired driver does not have greater rights and privileges than a hearing driver.

Under OCGA § 40-6-392, the trial court need only find that Webb’s right to an additional test was communicated to him. The legislature did not intend to contravene the laws relating to DUI by imposing impossible or impractical conditions on law enforcement agencies when arresting hearing impaired persons for driving under the influence. The provision in OCGA § 24-9-103 (b) (1), that “no . . . evidence acquired from the hearing impaired person shall be admissible in any criminal . . . proceeding unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter,” is not absolute, for subsection (b) (2), goes on to provide that “[i]f a qualified interpreter is not available one hour after the hearing impaired person has been taken into custody and a request has been forwarded to the [Department of Human Resources; § 24-9-101 (4)], the arresting officer may interrogate or take a statement from such person, provided that such interrogation and answers thereto shall be in writing and shall be preserved and turned over to the court in the event such person is tried for the alleged offense.”

The legislature thus provided that if a qualified interpreter is not available within an hour, a hearing impaired person may be “interrogated” without a “qualified interpreter.” So, although the legislature did not specify what procedure is required in the case of a hearing impaired person arrested for driving under the influence, since he is as a matter of law “a direct and immediate threat to the welfare and safety of the general public” (OCGA § 40-5-55 (a)), the laws requiring the presence of a “qualified interpreter” do not vitiate his implied consent. In State v. Tosar, supra at 887, we held that the General Assembly recognized in the implied consent law that there can be instances in which a driver might be incapable of comprehending his rights when read to him (see OCGA § 40-5-55 (b)); the officer in that case “unquestionably read” that defendant’s implied rights to him (Tosar, supra at 887) and the defendant’s inability to understand the officer did not constitute a “withdrawal” of his implied consent. That the officer conveys to the driver his right to an additional test is the most the law now requires before depriving the State of its right to introduce the test evidence at trial.

Webb and his amici contend the police were required under § 24-9-100 et seq. to maintain a system whereby a “qualified interpreter” could be provided at all times. The State contends that no interpreter could have been present within an hour after Webb was taken into custody and that the procedure followed was authorized under § 24-9-103 (b) (2). We need not decide such issues because the State proved that the arresting officer conveyed Webb’s implied consent rights to him within the meaning of the implied consent law, to which all drivers are subject. “The State is under no duty to show appellee’s affirmative waiver of an additional chemical test. [Cits.]” State v. Tosar, supra at 887. There are many blank spaces in the hearing impaired law, but we are not authorized to abrogate the DUI laws to fill in those spaces, particularly in this case where the spirit and intent of the law giving the hearing impaired the right to have an interpreter present was satisfied.

Decided March 29, 1994

Reconsideration denied April 12, 1994

Keith C. Martin, Solicitor, for appellant.

Thomas W. Moody, John H. Tarpley, for appellee.

Michael R. Hauptman, Gerald R. Weber, Goodman & Bush, James E. Goodman, Norman L. Smith, amici curiae.

Judgment reversed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0643.
    CITADEL CORPORATION v. SUN CHEMICAL CORPORATION et al.
    (443 SE2d 489)
   Birdsong, Presiding Judge.

Citadel Corporation appeals the grant of partial summary judgment which ruled that Citadel released $531,294 in claims by signing modifications and pay application releases. Citadel also contends the trial court erred in compelling it to produce documents protected by the work product doctrine. This dispute arises out of construction contracts whereby Citadel built a manufacturing plant and administration building for the predecessor of Sun Chemical Corporation.

Fluor Daniel, Inc. (“Fluor”) and Citadel entered four modifications on the contracts. Each modification provided in bold print: “This contract modification represents final release for any and all amounts due or to become due contractor for changes referred to herein. Contractor further releases all other claims, if any (except those claims previously submitted in writing in strict accordance with Part III General Terms and Part IV Special Terms of contract), for additional compensation under this contract, including without limitation any rights contractor may have for additional compensation arising out of delays or disruption of contractor’s schedule as may have arisen prior to the date of this modification.”

In addition, Citadel submitted monthly pay applications which provided that on receipt of payment, Citadel “does hereby . . . further remise, release and forever discharge Fluor Daniel and [Sun Chemical] ... of and from any and all manner of claims, demands, and causes of action whatsoever against [them] which contractor . . . may have for, upon or by reason of any matter, cause or thing whatsoever arising under or out of the contract, as of release date, except the following (none, unless noted):-”

Citadel contends summary judgment was improper because the parties did not intend the releases to act as general releases, because appellees waived the releases, and because there was no consideration for the releases. Appellees contend Citadel’s claims are for extra compensation related to events prior to June 1990, and were concocted by Citadel after it realized in May 1990, that it would not make a profit; that the claims were for completed items for which Citadel submitted no claim in writing before executing the modifications and monthly pay application releases; and that such claims were released when Citadel executed the monthly pay application releases and modifications not later than June 1990.

Citadel contends the releases specifically release only those claims arising out of the contract as of the release date, and not those which may be made later. Held-.

1. Citadel’s motion to strike appellees’ brief is denied.

2. As to standards applicable on motions for summary judgment, see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Georgia law applies to construction of these contracts. The language in the contracts, including the releases in the modifications and monthly pay applications, is unambiguous and susceptible to only one reasonable construction. See Foshee v. Harris, 170 Ga. App. 394, 395 (317 SE2d 548); R. S. Helms, Inc. v. GST Dev. Co., 135 Ga. App. 845, 848 (219 SE2d 458). The fact that the scope of the releases is broad does not make them ambiguous, unreasonable per se, or otherwise unenforceable. See McDowell v. Lackey, 200 Ga. App. 506, 508 (408 SE2d 481). The contract was a fixed price contract and alterations were made by modification. The releases in the modifications released not merely claims for changes referred to in the modifications, but “further release [d] all other claims ... for additional compensation under this contract [except those claims previously submitted in writing in strict accordance with the contract].” This language is clear. It means that as each modification was executed, all claims were released except those previously made in writing. Thus, no new claims would arise except those preserved in writing in accordance with the contract terms, or specifically provided for in a new modification executed by the parties. In addition, the monthly pay applications contained releases which plainly released every other claim except those specifically noted, of which there was none. The parties obviously intended to create a simple, orderly, reliable method for handling all claims beyond the contract price. The releases prevent the raising of stale claims or constructed claims long after the event giving rise to the claims.

The contracts provide the method by which Citadel would request additional compensation: Citadel was to give Fluor written notice within five working days after the happening of any event Citadel believed might give rise to a claim, and Citadel was to give notice of intent to pursue a claim when appellees would not agree to a price increase. Citadel contends that no claim exists until that procedure is exhausted, so no claim could have been “submitted in writing” prior to its execution of the modifications. Assuming that a question might arise whether a claim might be “previously submitted in writing” if Citadel had filed notice of a possible claim within five days of the event or had filed notice of intent to file a claim, nevertheless, Citadel does not contend it filed such a notice. The testimony of its agents confirms they did not express their reservations about certain “problems” when they executed the modifications and that Citadel did not give written notice of a possible claim within five days of the happening of an event giving rise to these claims. By executing the releases, Citadel released all claims except those submitted in writing, and there was none. Under the law cited by appellant for construing releases (.Kahn v. Columbus Mills, 188 Ga. App. 90, 91 (371 SE2d 908), rev’d on other grounds, 259 Ga. 80 (377 SE2d 153); Creamer v. Smith, 161 Ga. App. 312 (287 SE2d 755)), these releases were not general releases, but were specific in releasing all but those claims made in writing in accordance with the terms of the contract. Citadel argues that the releases are unreasonable if construed against it, but there is no prevailing policy against execution of a broad release such as would render it unreasonable per se. The parties intended the releases to be broad, and they specified how broad they were to be. McDowell, supra. The releases simply require Citadel to follow the provisions in the contract for giving notice of a possible claim within five days of the event and giving notice of intent to file a claim.

Citadel contends appellees waived the terms of the release by “negotiating” the claims after its execution of the releases. See OCGA § 13-4-4. Settlement negotiations are not admissible in evidence, and do not constitute a “waiver” of either party’s claim or defense. OCGA § 24-3-37; see Computer Communications Specialists v. Hall, 188 Ga. App. 545 (1) (373 SE2d 630). The releases were on their faces based on ample consideration, i.e., the payment of money for performance and for the execution of the releases and monthly pay applications.

3. The trial court did not err in compelling Citadel to produce certain documents which Citadel contended were litigation work product. The work product statute is narrowly construed (Atlantic Coast Line R. Co. v. Daugherty,. Ill Ga. App. 144 (141 SE2d 112)), and the matter lies within the trial court’s discretion; we do not reverse a trial court’s ruling unless it presents a clear abuse of discretion, and Citadel has not pointed out any specific abuse with regard to any particular piece of evidence. We find no abuse of discretion. Ambassador College v. Goetzke, 244 Ga. 322, 323 (260 SE2d 27).

Decided March 17, 1994 —

Reconsideration denied April 12, 1994.

Smith, Currie & Hancock, Charles W. Surasky, George Q. Sew-ell, for appellant.

Sprouse, Tucker & Ford, William L. Tucker, Edward M. Harris & Associates, Edward M. Harris, Vicki M. Knott, Drew, Eckl & Farnham, T. Bart Gary, for appellees.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0844.
    HOOKS v. THE STATE.
    (443 SE2d 532)
   Birdsong, Presiding Judge.

John Wesley Hooks was indicted and convicted for burglary and criminal attempt to commit aggravated sodomy. The evidence showed that he entered his sister-in-law’s trailer through a window after she was asleep and, on her awakening, threatened to tie her up and take her into the woods. He had brought duct tape and wrapped it “around” the victim’s mouth and her wrists, and he had a knife and told her he would kill her. He tried to force her to perform oral sex after removing the tape, but she started screaming; appellant put his hand to her mouth and cut her gums with his fingernail. Then he panicked and asked to be let out of the trailer. The same type of duct tape as appellant used on the victim was found in his truck. The victim waited 20 minutes to call police before pressing this charge against her brother-in-law, and when police arrived she was crying and hysterical, and had an injury with blood on her mouth. Held:

1. Appellant contends the trial court erred in allowing evidence of his 1973 guilty plea to a brutal kidnapping and rape of a woman who was traveling the interstate when she had a tire blowout. Appellant says that incident is not “similar” to this case so as to be an admissible similar transaction. We find that the facts admitted as to the 1973 crime were not only “similar” as to certain details, particularly the threat of kidnapping and the violence used by appellant to attempt sodomy, but it moreover has a “sufficient connection” to these charges to be relevant and probative. The evidence was admissible under Williams v. State, 261 Ga. 640 (409 SE2d 649). See also Johnson v. State, 242 Ga. 649, 653 (250 SE2d 394) and Oiler v. State, 187 Ga. App. 818, 821 (371 SE2d 455), concerning the liberality with which evidence of prior sexual offenses is treated as proof of tendency and intent. The length of time between the crimes is not controlling, particularly since appellant was in prison most of that time. Childs v. State, 202 Ga. App. 488, 489 (414 SE2d 714); Miller v. State, 165 Ga. App. 487, 489 (299 SE2d 174).

Decided April 12, 1994.

Jesse W. Owen, L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred in admitting sworn testimony given by the victim in the 1973 rape case, as it was hearsay.

The State’s evidence showed that the 1973 victim was a resident of Detroit, Michigan. Despite the fact that the Cook County, Georgia, police did not have her social security number or other such information, the State knew she had been married to a serviceman in 1973 and the police tried, unsuccessfully, to locate her through her husband’s military service records. The evidence admitted was not hearsay as it was her sworn testimony at the 1973 plea hearing, where appellant was present and had the opportunity to cross-examine her. Knight v. State, 210 Ga. App. 63, 65-67 (435 SE2d 276). The trial court did not abuse its discretion in determining that the witness was inaccessible. See Thomas v. State, 192 Ga. App. 744 (1) (386 SE2d 402).

3. Underlying these enumerations is appellant’s contention that the victim is lying and that he did not commit these crimes. Evidence properly admitted shows that appellant imposed sex on the victim soon after he married her sister about 25 years ago. These assaults began when the victim was 12 and continued until she was 15, when she left home. Her family did not believe her then and accused her of “throwing herself’ at appellant. Appellant then pleaded guilty to a vicious kidnapping and rape in 1973 against a stranger; nevertheless, the family pressure against this victim was so distressful that after she reported his attempt to commit the same vicious acts against her, she committed shoplifting, hoping this would prevent her from testifying at this trial. Although her family did not believe her, an impartial jury did. Appellate courts do not weigh the evidence or determine the credibility of the witnesses, for the jury has already done that; on appeal, we construe the evidence in favor of the jury’s findings and determine only whether the evidence is sufficient to support the verdict. The evidence is amply sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); see Lucas v. State, 192 Ga. App. 231, 233 (384 SE2d 438).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A94A0224.
    COHRAN v. PAULDING COUNTY BOARD OF TAX ASSESSORS.
    (443 SE2d 519)
   Johnson, Judge.

George Leonard Cohran is the owner of a 292-acre tract of land located in Paulding County, Georgia. His property, along with approximately 1,500 other tracts of agricultural property exceeding 25 acres, was reevaluated by the county for the purpose of assessing ad valorem taxes. The reevaluation was prompted by the State Revenue Commissioner’s second straight rejection of Paulding County’s proposed level of assessment for agricultural properties. In order to cure the deficiencies in the Paulding County Tax Digest, the county and the revenue commissioner entered into a consent order outlining a plan requiring a partial county-wide reevaluation of agricultural properties.

. Cohran, along with 55 similarly situated taxpayers, appealed to the superior court from the Paulding County Board of Equalization’s affirmance of the methods used by the county to establish fair market values. The taxpayers disputed the increased level of assessment, claiming that it violates their constitutional rights, that it lacks uniformity and challenged the method of valuation developed by an independent appraisal service hired by the county. When the cases came on for jury trial, counsel for both sides agreed that Cohran’s case would be representative of the group and that his case would be tried before the court, sitting without a jury.

After hearing evidence, the trial court affirmed the partial county-wide reassessment, the method used for establishing fair market value of property and the fair market value assigned to Cohran’s property. Cohran appeals.

We note at the outset that Cohran was not entitled to declaratory relief regarding either the parameters of, or the methods used in, the reassessment. Wilkes v. Redding, 242 Ga. 78, 79 (247 SE2d 872) (1979). “In numerous cases we have held that a superior court should not exercise its equitable jurisdiction in tax assessment cases to address issues concerning valuation, taxability, uniformity, and constitutionality, including the constitutionality of appraisal methods. [Cits.]” City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 535 (3) (422 SE2d 651) (1992). Recently, this court affirmed summary judgment in favor of Gwinnett County in a challenge to the method of reassessment of real property brought by 19 individual taxpayers in the form of a declaratory judgment action. This court not only held that the taxpayers had an adequate remedy at law precluding such actions, but imposed sanctions for frivolous appeal. Arnold v. Gwinnett County Bd. of Tax Assessors, 207 Ga. App. 759 (429 SE2d 146) (1993).

Decided March 30, 1994

Reconsideration denied April 13, 1994.

T. Michael Martin, for appellant.

Vinson, Osborne, Talley & Richardson, J. Glenn Richardson, for appellee.

Nonetheless, to the extent that these issues had any bearing on the assessed value of Cohran’s property they were presented at trial and considered by the judge. See Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 212 (2) (367 SE2d 43) (1988). As the party appealing to the superior court, Cohran had the burden of proof regarding the value of his property. Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37 (1) (227 SE2d 865) (1976). His only proffer regarding the property’s value was a reference to the Georgia Agricultural Statistic Service Publication which listed the average price of farmland in Georgia as $995 per acre. While this figure may be probative, as the trial judge pointed out in his order, the factfinder in this case was more concerned with the fair market value of Cohran’s property in Paulding County. Evidence regarding the method by which the county established this value was presented by means of the extensive testimony of the county’s chief appraiser. This court considers the sufficiency of the evidence and not its weight. The evidence was sufficient to authorize the trial court’s findings regarding the fair market value of Cohran’s property. See Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834, 835 (3) (350 SE2d 790) (1986). We find no error.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A0303.
    STATE OF GEORGIA v. ADAMS et al.
    (443 SE2d 517)
   Johnson, Judge.

1. The State asserts that the trial court erred in dismissing its forfeiture action against a 1988 BMW 735i automobile owned by Gary and Cynthia Adams and lienholder, MS Financial Services. The State seized the vehicle in connection with alleged drug activity. Service of the complaint was perfected on the individual defendants on June 3, 1993, and they timely filed an answer. The State filed a motion for partial order of disposition (the Adams’ interest in the vehicle) on July 28 and obtained a rule nisi on the same date setting a hearing on motion for August 24. On August 17, more than 60 days after service of the complaint, the State filed a motion to strike the Adams’ answer and for entry of a default judgment. Two days later, the Adamses filed a motion to dismiss the action because they were not granted a hearing within the 60-day time limit established by OCGA § 16-13-49 (o) (5). The trial court granted the motion.

The State relies on this court’s decision in Alford v. State of Ga., 208 Ga. App. 595 (431 SE2d 393) (1993) (cert. granted) arguing that its filing of a motion to strike the defendants’ answer operated as a stay, tolling the 60-day hearing requirement. The court noted in dicta in the Alford decision: “Since Alford filed an answer, it was obligatory on the State to either invoke a hearing within the 60-day period, avoid the necessity for the hearing by filing a timely motion to strike the defendant’s answer, or obtain a continuance.” Id. at 598 (4). The State’s presumption that this dicta establishes a new procedure for suspending the 60-day requirement of the statute is incorrect, particularly in light of the Supreme Court’s interpretation of OCGA § 16-13-49 (o) (5) in State v. Henderson, 263 Ga. 508 (436 SE2d 209) (1993), which is unequivocal in its holding that the 60-day hearing requirement is mandatory and not directory. In Henderson, the Supreme Court notes that the statute provides only one method by which the 60-day requirement can be avoided, and that is by securing a continuance for good cause. Further, “it is the duty of the state to obtain a continuance if it does not invoke a hearing within the 60-day period or otherwise avoid the necessity of the hearing, e.g., by obtaining a dismissal of an answer.” (Emphasis supplied.) Id. at 511, n. 7, not seeking a dismissal of an answer.

Even if, on certiorari, in Alford the Supreme Court decides that the filing of a motion to strike creates a second method for avoiding strict adherence to the 60-day rule, (a court granted continuance for good cause being the only exception contemplated by the statute) it should not apply in this case because here the State did not file its motion to strike the answer until more than 60 days after service of the complaint had been effected, and therefore the motion was not timely.

2. The State also asserts that the trial court erred in denying its motion for partial order of disposition. The State brought this motion pursuant to OCGA § 16-13-49 (o) (4): “If at the expiration of the period set forth in paragraph (3) of this subsection no answer has been filed, the court shall order the disposition of the seized property as provided for in this Code section.” In this case it is undisputed that a pleading purporting to be an answer was filed. The State took issue with the adequacy of that answer, but resolution of this issue is accomplished in one of three ways. The State may file a motion for a more definite statement pursuant to OCGA § 9-11-12 (e), file a motion to strike the answer pursuant to OCGA § 9-11-12 (f) or argue that an amendment of the answer pursuant to OCGA § 9-11-15 should not be allowed after the 30-day time limit for filing an answer pursuant to OCGA § 16-13-49 (o) (3). Alford, supra at 597 (3).

Decided March 30, 1994

Reconsideration denied April 13, 1994

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, Gary D. Bergman, Albert B. Collier, for appellant.

Dudley, Norton & Singleton, Ainsworth G. Dudley, Jr., James S. Plackis, for appellees.

The relief afforded by OCGA § 16-13-49 (o) (4) is available in those cases in which “no answer has been filed.” “Where the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citations and punctuation omitted.) Yoder v. State of Ga., 211 Ga. App. 226, 228 (438 SE2d 689) (1993). The trial court did not err in denying the State’s motion for partial order of disposition of the property.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A0841.
    DENSON v. THE STATE.
    (443 SE2d 300)
   Johnson, Judge.

Ernest Lee Denson appeals his convictions for robbery by force, armed robbery and possession of a firearm during the commission of a crime and sentence imposed for those offenses as well as for the offenses of possession of a firearm by a convicted felon and recidivist.

1. Relying on Rivers v. State, 250 Ga. 288 (298 SE2d 10) (1982), Denson argues that the trial court erred in entering a conviction for armed robbery where the offensive weapon used to perpetrate the armed robbery is also the fruit of the armed robbery. “[A] defendant . . . cannot be convicted of armed robbery where the offensive weapon used to perpetrate the armed robbery is also the only fruit of the armed robbery itself.” (Emphasis supplied.) Rivers, supra at 293-294 (1). Denson stole the victim’s gun and then stole her pocketbook. Because the offensive weapon was not the only item taken from the victim, Denson’s reliance on Rivers, supra, is misplaced.

2. Denson contends that a fatal variance exists between the allegations of Counts 1 and 2 of the indictment and the proof adduced at trial, constituting error. Count 1 of the indictment alleges that Den-son took a pistol, holster and pocketbook by force in violation of OCGA § 16-8-40, and Count 2 of the indictment alleges that Denson took a pistol, holster and pocketbook by use of an offensive weapon in violation of OCGA § 16-8-41. He argues that it was not proven at trial and could never be proven that Denson was carrying an offensive weapon prior to his theft of Clifton’s pistol. Therefore, he argues, the State has failed to prove an essential element of Count 2, and the conviction must be reversed. In support of his strict construction of the language of indictments he cites Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978): “ ‘ “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.” ’ ” Id. at 241-242 (1) (b). However, “Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” (Citations and punctuation omitted.) Sparkman v. State, 209 Ga. App. 763, 766 (4) (434 SE2d 564) (1993). We conclude that the over-inclusive list of items alleged to have been stolen in the indictment for armed robbery did not result in a variance between the indictment and the proof offered at trial so severe that it affected Denson’s substantial rights, prejudiced the preparation of his defense, or exposed him to the possibility of subsequently having to stand trial for the same charge. Accordingly, we are unpersuaded by Denson’s arguments that his convictions should be reversed on this ground.

3. Denson argues that the trial court erred in entering convictions for robbery by force and armed robbery where the evidence required to convict Denson of armed robbery was the only evidence showing robbery by force. It is clear from a review of the evidence of this case that the manner in which the initial theft, the theft of Clifton’s pistol, was committed constituted a robbery by force. Further, as discussed in Division 1, the theft of the pistol could not have been armed robbery because at that point Denson did not possess an offensive weapon. Compare Watkins v. State, 207 Ga. App. 766, 768-770 (1) (c) (430 SE2d 105) (1993). That Denson then used the gun to strike Clifton’s head and shoulders prior to stealing her pocketbook satisfies the elements of the offense of armed robbery. See Coney v. State, 209 Ga. App. 9, 12 (3) (432 SE2d 812) (1993). Although committed in close temporal proximity, the offenses were committed sequentially. The acts were committed in different ways and proof of the elements of the offenses are not satisfied by introduction of the same evidence. Therefore there was no merger and we do not find that the trial court erred in entering convictions on both the robbery by force and armed robbery charges. See Clay v. State, 209 Ga. App. 266, 269 (3) (433 SE2d 377) (1993).

Decided March 23, 1994

Reconsideration dismissed April 13, 1994.

Jesse W. Owen, for appellant.

C. Paul Bowden, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

4. Finally Denson challenges the sufficiency of the evidence to support the convictions. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). Viewing the evidence in this light, the testimony offered at trial is as follows. Janet Clifton was on her way to her home in Way-cross after a business-related trip to Atlanta. She stopped outside a Flash Food store to make a telephone call from a pay phone. Suddenly, from behind, Denson grabbed her hair and pulled her to the ground. She reached into her car to retrieve a .25 calibre handgun which she kept in a pocket in the door. Denson knocked it out of her hand, picked it up and began hitting her head and shoulders with it. He then grabbed her purse, which was laying on the front seat and fled. Reviewing the evidence in this case in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Denson guilty beyond a reasonable doubt of robbery by force (the gun), armed robbery (the pocketbook) as well as the other offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A0861, A94A0862.
    A94A0863, A94A0864.
    WELDON v. BOARD OF COMMISSIONERS OF MONROE COUNTY (two cases). BOARD OF COMMISSIONERS OF MONROE COUNTY v. WELDON (two cases).
    (443 SE2d 513)
   Johnson, Judge.

Janice Weldon, Tax Commissioner of Monroe County, filed a declaratory judgment action against the county Board of Commissioners to determine whether she is entitled to retain fees charged by her office in conjunction with the issuance of motor vehicle license tags as part of her compensation as tax commissioner. Local legislation enacted by the General Assembly in 1977 established a method for determining the compensation to be paid to the Monroe County Tax Commissioner. The interpretation of that act, Ga. L. 1977, p. 3916 et seq., forms the basis of the controversy between Weldon and the Board.

In 1977 Weldon’s predecessor held the position of county tax commissioner. Weldon assumed the position in May 1991, finishing her predecessor’s unexpired term. She was elected in 1992, and her first full term of office began on January 1, 1993. Prior to Weldon taking office for the full term beginning in 1993, the county attorney for Monroe County notified the county auditor that, in his opinion, as of January 1, 1993, compensation for the office of tax commissioner should be controlled by OCGA § 48-5-183 rather than the local act. In addition to the statutory salary, the attorney noted that the tax commissioner was eligible for two additional permissible sources of compensation: Fees for service as sheriff ex officio, permitted by OCGA § 48-5-137, and fees for collecting City of Forsyth taxes, permitted by OCGA § 48-5-359.1. In no event, he opined, was she authorized to retain the fees associated with the issuance of license tags because section 3 of the local act is in conflict with OCGA § 40-2-33 (c) (2), a general law.

The trial court specifically held that the provision regarding retention of license tag fees contained in section 3 of the 1977 Act applied only to Weldon’s predecessor. The court recognized that this provision allowing the tag agent to keep the fees conflicts with OCGA § 40-2-33 (c) (2), which requires that these fees be transferred into the general treasury of the county when the collecting agent is a county employee receiving a salary in excess of $7,999 per year. The trial court also held that Art. Ill, Sec. VI, Par. IV of the Constitution of the State of Georgia requires that in the event of any conflict between the local act and the general statute, the conflict must be resolved by deferring to the general statute. The trial court concluded by finding that, in any event, the 1977 local act was only applicable to the tax commissioner in office at the time of its enactment, not to her successors. The trial court concluded that Weldon was not entitled to retain license tag fees as compensation, and “from henceforth” must pay those fees into the county treasury.

1. Case Nos. A94A0861 and A94A0863 are dismissed as premature and for lack of jurisdiction, as they were filed as direct appeals during the pendency of the case in the trial court, where the Board of Commissioners’ motion for new trial had not yet been decided. These two appeals raise the identical issues raised in Case Nos. A94A0862 and A94A0864, which are properly before this court and are decided on their merits herein below.

Case No. A94A0862

2. Weldon asserts that the trial court erroneously found that the 1977 local act is controlled and superseded by OCGA § 40-2-33 (c) by virtue of the provisions of Art. III, Sec. VI, Par. IV of the Constitution of the State of Georgia, which is triggered when a local act conflicts with a statute of general application. Section 2 of the 1977 local act provides that: “After the effective date of this Act, if that person occupying the office of Tax Commissioner shall not have served previously as the Tax Commissioner of Monroe County, such Tax Commissioner shall receive that minimum annual salary provided for in an Act approved March 31, 1976 (Ga. L. 1976, p. 988), relating to minimum salary for the tax commissioners of this State.” OCGA § 40-2-33 (c) (2) regulates the disposition of license tag fees, and provides that: “If such tag agent shall be a salaried employee of the. county and at a salary in excess of $7,999.00 per annum, the amount of such fees so collected shall go into the general treasury of the county.”

Evidence presented at trial established that Weldon’s current base salary is $21,271 and she receives a supplement from the county, bringing her present salary level to $30,497. This salary exceeds the maximum salary contemplated by OCGA § 40-2-33 (c) (2) that Weldon, as tag agent, may receive and still be authorized to retain license tag fees as part of her compensation.

Weldon argues that Art. IX, Sec. I, Par. Ill of the Georgia Constitution authorizes compensation for tax commissioners based on fees, salaries, or a combination thereof. While this is correct, that paragraph also provides that such compensation must be “in such manner as may be directed by law.” OCGA § 40-2-33 (c) (2) is in harmony with this constitutional provision, and simply constitutes a statutory exception to those fees which otherwise may comprise the compensation paid to a county tax commissioner. “ ‘(O)ur system of law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts.’ Lucas v. Smith, 201 Ga. 834, 837 (41 SE2d 527) (1947). ‘It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.’ Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731 (48 SE2d 86) (1948).” Dept. of Banking &c. v. Independent Ins. Agents, 158 Ga. App. 556, 558 (2) (281 SE2d 265) (1981). When read together, there is no conflict between OCGA § 40-2-33 (c) (2) and Art. IX, Sec. I, Par. Ill of the Georgia Constitution.

The trial court did not err in finding that, pursuant to Art. Ill, Sec. VI, Par. IV of the Georgia Constitution, the general law takes precedence over the local law regarding the retention of the license tag fees. See Mobley v. Bd. of Commrs. of Polk County, 252 Ga. 33, 35 (2) (311 SE2d 178) (1984); Belcher v. Sumter County, 145 Ga. App. 173 (243 SE2d 110) (1978). At no time during her service as tax commissioner was Janice Weldon legally authorized to retain any license tag fees as a part of her compensation.

3. Weldon asserts that the trial court erred in finding that section 3 of the local act governing the operations of the office of Tax Commissioner of Monroe County, which provides that “the Tax Commissioner” is entitled to retain motor vehicle license plate fees as part of her compensation, applied only to the tax commissioner who was in office on the effective date of the act. We disagree.

OCGA § 48-5-183 (e) provides: “Notwithstanding any other provisions of this Code section, any tax collector or tax commissioner who, prior to July 1, 1979, was entitled to the commissions allowed by Code Section 40-2-33 may elect to receive the salary he was receiving prior to July 1, 1979, together with such commissions relating to the sale of motor vehicle license plates in lieu of the minimum salary provided in subsection (b) of this Code section.” This provision explains that the exception made for Weldon’s predecessor in office under the 1977 local act had a statutory basis, and it must be read to disapprove the continuation of this method of compensation for any tax commissioner taking office after July 1, 1979. Therefore, the trial court did not err in construing that portion of the 1977 local act regarding retention of license plate fees to be applicable only to the then incumbent tax commissioner, who remained in office beyond July 1, 1979. That provision of the 1977 local act thus became ineffective as of May 1991, with the retirement of Janice Weldon’s predecessor, and did not apply to Janice Weldon at any time.

Case No. A94A0864

4. The Board’s cross-appeal asserts that the trial court erred in holding that “henceforth all fees from tag sales shall be paid into the County treasury.” (Emphasis supplied.) The trial court denied the Board’s motion for new trial with regard to this issue because no evidence was presented at the trial of the case establishing the amount of fees, if any, which had been paid while Janice Weldon served as tax commissioner between May 1991 and the effective date of the October 1993 order.

Prospective application of its holding is illogical in light of the trial court’s finding that Weldon is not legally entitled to retain the fees collected by her office in connection with the issuance of license tags. All such fees collected from the date Weldon assumed office in May 1991, were made the property of the county by statute, and Weldon had a legal duty to transfer these fees to the general treasury of the county. See OCGA § 40-2-33 (c) (2). The Board, in the prayer for relief contained in its response to Weldon’s declaratory judgment action, asked the court to “order Petitioner to pay to Respondent any and all fees which Petitioner has retained unlawfully.” We do not construe the Board’s prayer for relief as a counterclaim as did the trial court; rather, we find that it is a request for a declaratory ruling regarding the license tag fees collected by Weldon from the date she assumed the office of tax commissioner in May 1991. As a matter of law, those funds were required to be transferred by Weldon to the general treasury of Monroe County and were the property of the county. The fees never belonged to Weldon, and she cannot retain them through a prospective application of the trial court’s judgment in this case.

Decided March 30, 1994

Reconsideration denied April 13, 1994

Crumbley & Crumbley, Wade M. Crumbley, for appellant.

W. Franklin Freeman, Jr., James A. Vaughn, for appellee.

That portion of the trial court’s order regarding license fees collected from the date Weldon assumed office in May 1991 through the effective date of the trial court’s judgment in the declaratory judgment action is reversed. The case is hereby remanded, and the trial court is directed to require Weldon to reimburse Monroe County in an amount equal to the total of fees collected in conjunction with the issuance of license tag fees retained from the date upon which she took office until the date of the trial court’s original order. We presume that the parties will be able to determine and stipulate the amount. In the event they are unable to do so, however, the trial court is directed to take whatever procedural steps it finds appropriate to ascertain the correct amount and accomplish the transfer.

Appeals dismissed in Case Nos. A94A0861 and A94A0863. Judgment affirmed in Case No. A94A0862. Judgment reversed and case remanded with direction in Case No. A94A0864.

Beasley, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A94A0070.
    CULPEPPER v. CITY OF CORDELE et al.
    (443 SE2d 642)
   Andrews, Judge.

Culpepper, individually and as trustee of the trust of Fletcher, was the owner of two parcels of land annexed by the City of Cordele into its corporate limits. As owner, Culpepper brought a declaratory judgment action in the Superior Court of Crisp County seeking to invalidate the annexation of the two parcels and seeking an injunction preventing enforcement of the annexation. She appealed to the Supreme Court from the judgment of the trial court validating the annexation. The Supreme Court transferred the appeal to this court.

The parcels of land owned by Culpepper were a portion of numerous unincorporated areas within the City of Cordele which the city annexed by ordinance as “unincorporated islands” pursuant to Article 6 of Chapter 36 of OCGA Title 36. OCGA §§ 36-36-90 through 36-36-92. Culpepper claims that two of the unincorporated areas annexed by the ordinance — the two unincorporated areas in which her parcels of land were located — could not be lawfully annexed by city ordinance as “unincorporated islands” pursuant to Article 6.

Under Article 6, the city was authorized, by passage of an ordinance, to “annex to the existing corporate limits thereof unincorporated islands which are contiguous to the existing limits at the time of such annexation upon compliance with the procedures set forth in this article and in accordance with the procedures provided in Article 1 of this chapter.” OCGA § 36-36-92 (a). An “unincorporated island” is defined in part as “[a]n unincorporated area in existence on January 1, 1991, and consisting of 50 acres or less with its aggregate external boundaries abutting the annexing municipality.” OCGA § 36-36-90 (3) (A). A “contiguous area” is defined as “any unincorporated area which, on or after January 1, 1991, had an aggregate external boundary directly abutting a municipal boundary. Any area shall be considered ‘contiguous’ if the aggregate external boundary would directly abut the municipal boundary if not otherwise separated, in whole or in part, from the municipal boundary by lands owned by the municipal corporation, by lands owned by a county, or by lands owned by this state or by the definite width of: (A) Any street or street right of way; (B) Any creek or river; or (C) Any right of way of a railroad or other public service corporation.” OCGA § 36-36-90 (1) (A), (B), (C).

In the annexation ordinance enacted December 15, 1992, the city, acting pursuant to Article 6, identified and annexed numerous separate areas of unincorporated land in a comprehensive effort to incorporate “unincorporated islands” contiguous to the existing corporate limits at the time of the annexation. The legal issues on appeal are identical as to each of the two annexed areas in which Culpepper’s land was located and center on whether the annexed areas exceeded the fifty-acre limit imposed on annexation of “unincorporated islands” under Article 6.

It is undisputed that the contested annexations involved two separate unincorporated areas in existence on January 1, 1991. Each area had aggregate external boundaries abutting the Cordele corporate limits and each area consisted of more than 50 acres. It is also undisputed that a railroad right-of-way traversed both unconnected areas dividing the two unincorporated areas into four separate areas, each containing less than fifty acres. The city contends the railroad right-of-way was already an incorporated area of the city at the time of annexation and had been an incorporated area prior to January 1, 1991. Accordingly, the city’s position is that the railroad right-of-way was an incorporated strip of land providing a municipal boundary which divided the two unincorporated areas exceeding fifty acres into four unincorporated areas, each containing less than fifty acres, each contiguous to the existing corporate limits, and each qualifying for annexation as an “unincorporated island” under Article 6. Culpepper contends the railroad right-of-way was an unincorporated strip of land traversing the two larger areas. Therefore, her position is that the two unincorporated areas were not divided by the railroad into four “unincorporated islands” of less than fifty acres. Rather, she contends the railroad right-of-way, along with the areas it traversed, formed two unincorporated areas in excess of fifty acres which the city could not lawfully annex by ordinance pursuant to Article 6. Thus, the dispute over whether there was compliance with the annexation procedures of Article 6 hinges on whether or not the railroad right-of-way dividing the two large unincorporated areas was a part of the corporate limits of the city on or before January 1, 1991.

It is undisputed that after being rechartered effective January 1, 1970, the City of Cordele boundaries, as set forth in the rechartering Act (Ga. L. 1969, pp. 3806-3855), did not include the railroad right-of-way at issue and that from January 1, 1970 through January 1, 1991 the railroad right-of-way was not annexed into the city by local act of the General Assembly or pursuant to any municipal ordinance or resolution. Testimony presented to the trial court also showed that the current official city map, although containing a disclaimer as to its accuracy, did not include the railroad right-of-way within the corporate limits. Nevertheless, the assistant city manager testified that the railroad right-of-way was within the corporate limits prior to January 1, 1991. She concluded the right-of-way became an incorporated part of the city because the Cordele police investigated incidents along the right-of-way, and she had seen city fire trucks put out fires in the area. The city police chief also testified that the police investigated numerous accidents which occurred at the intersection of city streets with the railroad right-of-way. Although there was testimony that the city received payments for ad valorem taxes assessed by the state revenue commissioner on the railroad company owning the right-of-way, there was no indication as to whether this was a tax on any real property owned by the railroad located within the corporate limits or a tax on tangible personal property owned by the railroad within the city limits. See Bd. of Tax Assessors of Wayne County v. Clary, 161 Ga. App. 828, 829-830 (290 SE2d 110) (1982).

Although there was no evidence that the railroad right-of-way had been annexed into the city pursuant to legislative enactment or any method of municipal annexation under Chapter 36, the trial court concluded the railroad right-of-way became included within the Cordele corporate limits prior to January 1, 1991 by “de facto annexation.” Citing Mayor &c. of Macon v. Morris, 10 Ga. App. 298, 300 (73 SE 539) (1912), the trial court reasoned that the portion of the railroad right-of-way running through the corporate limits of Cordele should be considered included as part of the corporate limits of Cordele in the same manner that public streets encompassed within the expanded territory of a city become a part of the city for all municipal purposes. Proceeding from this conclusion, the trial court ruled that the railroad right-of-way was an incorporated part of Cordele and acted as a municipal boundary which traversed the two larger areas and divided them into four unincorporated islands of less than fifty acres, all four of which were in existence on January 1, 1991 and contiguous to the existing corporate limits at the time of annexation. Accordingly, the trial court concluded the city ordinance accomplished a valid annexation of Culpepper’s land pursuant to Article 6.

We cannot agree with this conclusion. The rule stated in Morris, supra, is that territory lawfully annexed into a city becomes a part of the city for all municipal purposes and that public streets included as part of the newly annexed territory, which were previously maintained by others prior to the annexation, must be kept reasonably safe by the city after the annexation. See Bush v. City of Gainesville, 105 Ga. App. 381, 383-384 (124 SE2d 667) (1962); Ga. R. &c. Co. v. Tompkins, 138 Ga. 596, 600 (75 SE 664) (1912). This rule is not authority supporting de facto annexation and has no application to a private railroad right-of-way, not previously annexed, which traverses the city limits. Evidence of city police investigation of incidents at public street crossings along the right-of-way, and other evidence of limited city police and fire protection provided along the right-of-way as it abutted the city, did not result in annexation of the railroad right-of-way into the city. It is undisputed that the railroad right-of-way was not annexed into the city by a local statute of the General Assembly nor under the applicable general statutes by which the General Assembly has delegated legislative authority to the city to alter its boundaries. See the Municipal Home Rule Act of 1965 (OCGA § 36-35-2 (a)); Chapter 36 of OCGA Title 36 (OCGA §§ 36-36-1 through 36-36-92); Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1 (178 SE2d 868) (1970); Bruck v. City of Temple, 240 Ga. 411, 412-413, nn. 2, 3 (240 SE2d 876) (1977); Niskey Lake Water Works v. Garner, 228 Ga. 864, 866 (188 SE2d 864) (1972); Lee v. City of Jesup, 222 Ga. 530, 531-532 (150 SE2d 836) (1966). In the absence of any evidence that the railroad right-of-way was annexed into the city by any of the above methods, there was no support for the conclusion that the right-of-way was an incorporated portion of the city and the trial court erred by ruling that it was de facto annexed into the city.

Since it was an unincorporated strip of land, the right-of-way and the two unincorporated areas it traversed formed unincorporated areas in excess of fifty acres which the city could not lawfully annex by the ordinance it passed pursuant to Article 6. Accordingly, to the extent the city ordinance attempted to annex Culpepper’s land, which was located within unincorporated areas exceeding 50 acres, it was invalid and unenforceable.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

Decided April 13, 1994.

Culpepper, Pfeiffer & Harpe, Guy D. Pfeiffer, for appellant.

Roberts, Roberts & Ingram, Guy V. Roberts, Jr., for appellees.

       Under OCGA § 36-36-5, annexation of “unincorporated islands” consisting of more than 50 acres is controlled by the procedures set forth in Article 3 of Chapter 36. See OCGA §§ 36-36-30 through 36-36-40. OCGA § 36-36-5 also provides that “any land of less than 50 acres in size located within such an unincorporated island may be annexed through the use of the annexation methods contained in Article 2, 3, or 4 of [Chapter 36] or by a local Act of the General Assembly.” It is undisputed that Culpepper’s land was annexed under Article 6 and not under any of these alternative procedures.

       This is not a case where, but for the railroad right-of-way, an incorporated area would have been abutted on all boundaries by the municipal boundary, in which case the existence of the right-of-way would not prevent an otherwise lawful annexation under Article 6. See OCGA § 36-36-90 (1) (C). In the present case, the railroad right-of-way separates unincorporated areas from other unincorporated areas.

       There was other evidence that the railroad right-of-way was not an incorporated portion of the city at the time Culpepper’s property was annexed. The annexation ordinance at issue included a general paragraph annexing all railroad rights-of-way within the corporate limits not previously annexed. Because of its conclusion that the right-of-way had been previously incorporated into the city, the trial court held that this paragraph of the ordinance was “mere surplusage.”

       We have addressed appellant’s various enumerations of error to the extent necessary to decide the issues raised. Any enumerations not specifically addressed were either rendered moot by our decision or were not necessary to resolution of the issues.


author: Pope, Chief Judge.

text:
    A94A0532, A94A0533, A94A0534.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. CPS FOUR HUNDRED, LTD. (three cases).
    (443 SE2d 645)
   Pope, Chief Judge.

Plaintiff/appellant Fulton County Joint City-County Board of Tax Assessors of Atlanta-Fulton County (“Board of Tax Assessors”) appeals from orders of the superior court dismissing several ad valorem tax appeals. The Fulton County Superior Court dismissed the tax appeals because the Board of Tax Assessors failed to comply with the 30-day notice requirement of OCGA § 48-5-311 (f) (2). Because we agree that the Board of Tax Assessors failed to effect its appeal in a timely fashion, we affirm.

Defendant/appellee CPS Four Hundred, Ltd. (“CPS”) disputed the 1993 tax assessment of several properties they owned and requested review by the Board of Tax Assessors pursuant to OCGA § 48-5-311 (e) (2). Because the Board of Tax Assessors made no valuation changes to their original assessments, CPS appealed to the Fulton County Board of Equalization pursuant to OCGA § 48-5-311 (e) (2) (B). The Board of Equalization did make reductions to the value of the properties and mailed notice thereof to CPS on July 7, 1993. The Board of Tax Assessors attempted to appeal these determinations to the Superior Court of Fulton County pursuant to OCGA § 48-5-311 (f). The superior court dismissed the appeals and the Board of Tax Assessors filed the present appeals to this court.

1. OCGA § 48-5-311 (f) (2) states that “[a]n appeal by the county board of tax assessors shall be effected by giving notice to the taxpayer.” (Emphasis supplied.) That Code section provides further that such “notice . . . shall be filed within 30 days from the date on which the decision of the county board of equalization is mailed. ...” (Emphasis supplied.) Id. The only document filed or served by the Board of Tax Assessors within the statutory period was the certification of record filed with the Fulton County Superior Court, also required by OCGA § 48-5-311 (f) (2). According to the record, CPS did not have notice of the appeals until an entry of appearance was filed on behalf of the Board of Tax Assessors after the expiration of the 30-day period.

In Camden County Bd. of Tax Assessors v. Proctor, 155 Ga. App. 650, 651 (271 SE2d 902) (1980), this court held that the 30-day period for filing a tax appeal must be strictly construed because it is jurisdictional in nature, and that the trial court thus erred by not dismissing the taxpayer’s appeal because the notice of appeal was received by the board of tax assessors two days beyond the thirty-day period. Similarly, in the instant case the Board of Tax Assessors did not “effect” its appeal because it failed to give notice to the taxpayer within 30 days of the decision of the Board of Equalization. Because the superior court thus lacked jurisdiction in this case, dismissal of the appeals was proper. See also C. C. Leasing Corp. v. Bd. of Tax Assessors of Hall County, 143 Ga. App. 520 (239 SE2d 204) (1977) (upholding dismissal of a taxpayer’s appeal because the taxpayer filed his notice of appeal with the superior court instead of with the county board of tax assessors).

The fact that the Board of Tax Assessors filed the certification of record with the superior court within the statutory period does not require a different result. As stated above, the language of OCGA § 48-5-311 (f) (2) clearly provides that an appeal by a board of tax assessors “shall be effected” by giving notice to the taxpayer. Simply filing the certification of record, although also required by the statute, does not meet the notice requirements of the statute, and does not, by itself, constitute the filing of the appeal so as to confer jurisdiction on the court. The intent of the statute is to ensure proper and timely notice to parties in tax appeals and to provide procedures which expedite the tax appeal process. In the instant case, the Board of Tax Assessors’ failure to serve notice upon CPS deprived the superior court of jurisdiction and dismissal of the appeals was thus proper.

Decided April 13, 1994.

The Ewing Group, Monica E. Ewing, Cathleen S. Robson, Linda M. Prime, Melanie L. Harrington, for appellant.

Johnson & Montgomery, J. Bertram Levy, for appellee.

2. The Board of Tax Assessors also argues failure to serve a notice of appeal on CPS within the 30-day period is a curable defect. Because we hold an appeal by a county board of tax assessors under OCGA § 48-5-311 (f) (2) is initiated by giving notice to the taxpayer within the 30-day period, and that jurisdiction will not otherwise lie, we must reject the Board’s argument that such failure merely constitutes an amendable or curable defect. Contrary to the Board’s assertions, Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473 (246 SE2d 479) (1978), which merely holds that a notice of appeal may be amended to state the grounds for appeal after the expiration of the 30-day period, does not require a different result. Accordingly, the superior court’s dismissals of the Board of Tax Assessors’ tax appeals must be affirmed.

Judgments affirmed.

McMurray, P. J., and Smith, J., concur.

       The three appeals present the same issue, and thus have been consolidated for review by this court.


text:
    A94A0666.
    SOUTHERN LAND & CATTLE COMPANY v. BROCK et al.
    (443 SE2d 647)
   Andrews, Judge.

We granted the application of Southern Land & Cattle Company (Southern) for a discretionary appeal from the order of the superior court in a post-judgment garnishment proceeding brought by Southern.

Southern filed its affidavit in November 1992 initiating a proceeding for a continuing garnishment against defendant Marie Brock to collect $2,952.45 claimed due on a default judgment in favor of Southern which was entered in June 1986 against Marie Brock and Perry Brock. The garnishee was Hickory Springs Manufacturing Company, the employer of Marie Brock. A traverse to Southern’s affidavit was filed by Marie Brock and Perry Brock contending that “[t]he affidavit is untrue in that the debt is based on a void judgment” and “[t]he affidavit is legally insufficient in that it is based on a voidable judgment.” Along with the traverse, Marie Brock and Perry Brock filed a four-count “Complaint For Damages” against Southern in the same civil action as the garnishment proceeding. The complaint asserted that Southern was estopped from collecting any amount claimed due on the judgment; that the garnishment was illegal, void and was abusive litigation; that it violated Marie Brock’s due process rights under the United States Constitution; that the garnishment should be dismissed; and that Marie Brock and Perry Brock were entitled to a judgment against Southern for actual and punitive damages and attorney fees. Reserving its jurisdictional challenge to the complaint, Southern filed a response denying the allegations and raising various defenses including claims that the complaint was improperly filed as part of the garnishment proceeding; that Perry Brock was not a proper party to the garnishment proceeding; that service of process was insufficient; and that venue was improper.

A hearing on the defendant’s traverse was scheduled for January 29, 1993 and, in the interim, the trial court ordered the garnishee to pay all garnished wages of the defendant into the registry of the court until the issues raised in the traverse were resolved. On January 29, the trial court conducted a hearing on the defendant’s traverse. No evidence was presented at the hearing. At the conclusion of the hearing, without entering a ruling on the traverse, the trial court gave the parties ten days to file briefs in support of their positions. On February 11, 1993, Southern filed its brief in opposition to the defendant’s traverse raising the same position it argued at the hearing — that the defendant’s traverse attacked the validity of the judgment and OCGA § 18-4-65 (b) provides that “no such challenge shall be entertained in the garnishment case.” On February 25, 1993, Marie Brock filed a pleading denominated “Defendant’s First Amendment To Her Traverse,” along with a supporting brief, in which she added the claim that the judgment on which the garnishment was based had been satisfied.

On May 14, 1993, Marie and Perry Brock moved for partial summary judgment on their complaint for damages. On June 28, 1993, Southern moved for dismissal of the complaint for damages on various grounds including claims that the complaint was improperly filed as part of the garnishment action and was brought by Perry Brock, a non-party to the garnishment action without standing. On July 29, 1993, the trial court denied Southern’s motion to dismiss the complaint and entered an order in favor of Marie and Perry Brock on their motion for partial summary judgment on the complaint concluding that the judgment had been paid in full, dismissing the garnishment action, and ordering that all funds paid by the garnishee into the court be returned to Marie Brock. The order further concluded that factual issues remained as to further claims in the complaint for damages against Southern. After the order granting partial summary judgment was filed, Marie and Perry Brock voluntarily dismissed the remaining claims in the complaint against Southern. There was no further order from the trial court addressed specifically to the defendant’s traverse. The present appeal is from the trial court’s order on the summary judgment motion.

Southern claims the trial court erred by granting summary judgment on the complaint and dismissing the garnishment and by failing to rule on the issues presented at the hearing on the defendant’s traverse.

Pursuant to OCGA § 18-4-93 “[a] garnishment proceeding is an action between the plaintiff and the garnishee. . . .” However, a judgment debtor named as a defendant in the proceeding “may become a party to the garnishment for the purposes set out in Code Section 18-4-65 by filing a traverse to the plaintiff’s affidavit stating that the affidavit is untrue or legally insufficient; and he shall be a party to all proceedings thereafter.” OCGA § 18-4-93; Travelers Ins. Co. v. Trans State, 172 Ga. App. 763, 764 (324 SE2d 585) (1984). The defendant’s traverse in this case was filed by Marie Brock and Perry Brock. As the sole judgment debtor named as a defendant in the garnishment proceedings, Marie Brock was entitled to become a party by filing a traverse. There is no procedure under the garnishment statutes (OCGA § 18-4-1 et seq.) for Perry Brock to traverse the plaintiff’s affidavit. See Baptist Convention of Ga. v. Henry, 187 Ga. App. 551 (370 SE2d 813) (1988).

By traversing the plaintiff’s affidavit, Marie Brock became a party to the garnishment proceedings initially for the limited purposes set forth in OCGA § 18-4-65. Terrell v. Fuller, 160 Ga. App. 56, 57 (286 SE2d 50) (1981). Pursuant to OCGA § 18-4-65, “[w]hen garnishment proceedings are based upon a judgment, the defendant, by traverse of the plaintiff’s affidavit, may challenge the existence of the judgment or the amount claimed due thereon. The defendant may plead any other matter in bar of the judgment, except as provided in subsection (b) of this Code section.” OCGA § 18-4-65 (a). Subsection (b) of OCGA § 18-4-65 provides that “[t]he validity of the judgment upon which a garnishment is based may only be challenged in accordance with . . . [the Civil Practice Act]; and no such challenge shall be entertained in the garnishment case.” Loftin v. Loftin, 166 Ga. App. 778 (305 SE2d 641) (1983); Ross v. Ross, 159 Ga. App. 144, 145 (282 SE2d 759) (1981).

Marie Brock’s traverse asserting that the judgment was void or voidable was clearly an impermissible challenge in the garnishment case to the validity of the judgment. When the traverse was tried by the trial court at the hearing on January 29, the Brocks orally argued and attempted to raise the issue that the judgment had been satisfied, a proper issue for traverse pursuant to OCGA § 18-4-65 (a). However, there was no express or implied consent by Southern pursuant to OCGA § 9-11-15 (b) to try the traverse on this issue. Rather, Southern specifically argued at the hearing that the traverse, as filed, should be denied because it impermissibly challenged the validity of the judgment. The trial court made no ruling on the traverse at the conclusion of the hearing on January 29. Almost a month after the hearing, Marie Brock amended her traverse by adding the claim that the judgment was satisfied. See OCGA § 18-4-3 (pleading required or permitted in garnishment proceedings is amendable at any time before judgment thereon). Thereafter, without further hearing and without ruling on the traverse, the trial court entered an order on the “Complaint For Damages” granting summary judgment. Since the summary judgment order dismissed the garnishment proceeding on the basis that the judgment had been paid in full, it had the effect of sustaining the defendant’s amended traverse without a hearing.

Under OCGA § 18-4-88, the issues raised in the defendant’s traverse must be tried by the court. At a minimum, an evidentiary hearing is required. Mull v. Mull, 167 Ga. App. 687, 688 (307 SE2d 675) (1983) (no right to a jury trial in garnishment proceedings). At the January 29 hearing on the unamended traverse, Southern had the burden as garnishment plaintiff to show that sums remained due on a valid judgment. Mosley v. Mosley, 166 Ga. App. 551, 552 (305 SE2d 153) (1983); Ross, supra at 145. No evidence was introduced at the hearing. However, the plaintiff’s affidavit filed by Southern constituted uncontroverted evidence that the defendant owed the sum of $2,952.45 on the judgment. The defendant’s traverse challenging the validity of the judgment provided no support for the defendant. OCGA § 18-4-65. Although the verified “Complaint For Damages” addressed issues in bar of the judgment which could have been raised by traverse, we conclude the trial court was not authorized to consider it in support of the defendant’s traverse. “Since our garnishment laws are in derogation of the common law and must accordingly be strictly construed . . . ,” we find the “complaint” filed in this case may not be liberally construed as the equivalent of a defendant’s traverse. Travelers Ins. Co., supra at 764; Terrell, supra at 58. At the conclusion of the hearing on the defendant’s traverse, the only evidence before the trial court was Southern’s affidavit in support of the garnishment and there was no evidence to support a judgment sustaining the defendant’s traverse.

We conclude the trial court erred in dismissing the garnishment proceeding by means of granting summary judgment on the “complaint” and without ruling on the defendant’s traverse. It is apparent from the summary judgment order, in which the trial court concluded the underlying judgment in the garnishment was satisfied, that the court considered evidence which was filed in the trial court along with the amended traverse after the January 29 hearing on the defendant’s original traverse. Since the trial court has not conducted a hearing nor entered a judgment addressing the issues raised in the defendant’s traverse, as amended, we remand this case for an evidentiary hearing on these issues.

Decided April 13, 1994.

Reagan W. Dean, for appellant.

Ellis & Easterlin, George R. Ellis,-Jr., for appellees.

Judgment reversed and case remanded.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A0825.
    DOTSON v. THE STATE.
    (443 SE2d 650)
   Birdsong, Presiding Judge.

Gregory J. Dotson appeals his judgment of conviction of DUI and speeding. During direct examination appellant revealed the numerical reading of the field alcosensor test; the State moved for a mistrial which the trial court immediately granted, dismissing the jury. A new jury subsequently was selected and sworn. Appellant’s counsel moved for dismissal on grounds of double jeopardy; the motion was denied. Appellant was convicted of DUI (OCGA § 40-6-391 (a) (1)), driving with an unlawful alcohol concentrate (DWUAC) (OCGA § 40-6-391 (a) (4)) and speeding.

The trial record discloses the following colloquy during the direct examination of appellant: “[Defense Counsel]: Did the officer make any statements to you? [Appellant]: Then he asked me if I had been drinking. I didn’t make [a] comment at all. [Defense Counsel]: Okay. [Appellant]: Then he went and wrote the ticket. Then when he wrote the ticket he asked me would I come and take a little breath machine, a little alcosensor he had. I guess that is what he called it. I agreed because I felt like I wasn’t drunk. He [sat] me in the front seat because he was driving a Mustang, one of the 5.0 state trooper Mustangs. I sat in the front seat. He pulled out the little alcosensor. I blew into it. He asked me to blow and I blew into it hard the first time. We [were] sitting there, looking at it together and it did not give a reading. So, he asked me to blow again. And I [blew] again and it did not give a reading again. So, he said try again. I [blew] again. It finally gave a reading. We sat there and looked at it. It gave a reading of point zero 8. [Prosecutor]: Objection, Your Honor. The results of the alcosensor aren’t allowed at trial. [Court]: Let me ask the jury to go in the jury room, please. [Jury retires.] [Court]: Are you making any other motions? [Prosecutor]: Yes, Your Honor, I am. I am moving for a mistrial. [Court]: Granted. He can’t do that. [Defense Counsel]: I was going to ask him the next question was it positive or not. [Court]: You have got to train your witness not to do mistrial stuff. Now, we have lost a whole day. We are going to start back over at 9:00 o’clock in the morning and we are going to finish in the morning. . . . [Defense Counsel]: My very next question was going to be was it a positive reading. I am sorry. [Court]: You have got to prepare him. I am sure you told him not to mention his previous DUI’s. You should have told him not to do this, too. . . . [Witnesses return.] [Court]: I have had to declare a mistrial based on statements made by the defendant on the stand. . . . [Y]our subpoenas are good starting back at 9:00 o’clock in the morning. . . . [Jury returns.] [Court]: By law the alcosensor admissions can only be positive or negative. You cannot be told the point count from the alcosensor. So, by virtue of the defendant’s statement to you it necessitates based on the State’s motion that I declare this a mistrial.” (Emphasis supplied.) Held:

1. Jeopardy attached in this case. Once the jury has been impaneled and sworn, jeopardy attaches. Morris v. State, 262 Ga. 446, 447 (421 SE2d 524). “Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the ends of public justice be defeated; the existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.” (Citations, punctuation and emphasis omitted.) Bradfield v. State, 211 Ga. App. 318, 319 (439 SE2d 100). While the trial court exercises sound discretion as to these matters, “the power of the trial judge to interrupt the proceedings on his own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations.” Jones v. State, 232 Ga. 324, 326-327 (206 SE2d 481); Bradfield, supra. Compare Abdi v. State, 249 Ga. 827 (294 SE2d 506). However, “ ‘manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial.’ ” (Emphasis supplied.) Moss v. State, 200 Ga. App. 253, 255 (407 SE2d 477). In Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483), the Supreme Court recently clarified the effect of mistrial thusly: “If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial. [Cits.] At a minimum, the mistrial in this case was without [appellant’s] consent, and could [also] be considered over his objection.” (Emphasis supplied.)

The State contends in its brief that appellant disobeyed the prior instructions of the trial court not to divulge the alcosensor reading to the jury and that this flaunting of the court’s authority, in conjunction with the prohibited testimony, supports the court’s granting of a mistrial. However, factual assertions in briefs unsupported by the record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). Examination of the record does not affirmatively reveal that such an instruction was given either to appellant or to the arresting officer. But the State contends that this caution was given in an unreported side-bar conference. The trial transcript of the first trial affirmatively reflects that an unreported conference was held, following an objection by appellant’s counsel as to testimony by the arresting officer that a positive alcosensor reading meant appellant “had had too much to be . . . driving.” However, the transcript also affirmatively reflects that the conference was attended only by the court and counsel, and was conducted out of the hearing of the jury. Thus, the record fails to support the claims of the State. Moreover, examination of the testimony of appellant reveals that during a non-responsive narrative account of the sequence of events leading to the obtaining of an alcosensor reading, appellant ultimately revealed the alcosensor reading of .08. The manner in which appellant testified is more consistent with an inadvertent, rather than an intentional, evidentiary infraction. Further, after questioning whether the State had any motions to make and immediately declaring a mistrial as soon as the mistrial motion was made in response to the question, the trial court admonished defense counsel as to the latter’s failure for having prepared his client not to mention alcosensor test results; at no point did the trial court assert appellant or his counsel either had violated a previous court instruction or had participated in an intentional evidentiary infraction. We are satisfied that the record, as constituted, reflects appellant did not engage in an intentional evidentiary infraction and did not knowingly violate any prior instruction by the trial court not to divulge such information to the jury.

The State asserts that its ability to prosecute its case was prejudiced to the point that only the grant of mistrial would suffice to cure the taint. In particular the State argues that by appellant’s testifying to an alcosensor reading of .08, he deprived the State of its fair trial right to prosecute him for having an alcohol content of .10 within three hours of being in control of a motor vehicle. Appellant was tried on three counts. The testimony regarding the alcosensor reading in no way prejudiced the State’s ability to try appellant for speeding. This testimony also could not have prejudiced the State’s ability to convict appellant of DUI. Pursuant to OCGA § 40-6-392 (b) (3), “[i]f there was at that time [time of authorized chemical testing] an alcohol concentration of 0.08 grams or more, it shall be presumed that the person was under the influence of alcohol, as prohibited by paragraphs (1), (2), and (3) of subsection (a) of Code Section 40-6-391.” Thus, appellant’s factual revelation to the jury of the .08 reading on the alcosensor constituted a judicial admission against his own interests as to the DUI charge. The State’s claim that it would be impaired in prosecuting the remaining charge of driving with an unlawful alcohol concentration is speculative at best.

Additionally, in O’Dell v. State, 200 Ga. App. 655, 657 (3) (409 SE2d 54), it was held that the trial court erred in entering convictions and sentencing appellant “on both DUI charges” (OCGA § 40-6-391 (a) (1), (4)) since they were predicated on the same conduct. In the case at bar, the trial court apparently tried to cure this problem merely by sentencing appellant on DUI and speeding only; however, “the court was in no event authorized to enter convictions on both DUI [OCGA § 40-6-391 (a) (1), (4)] charges.” Love v. State, 195 Ga. App. 392 (1) (393 SE2d 520). Under the rulings in O’Dell and Love, it taxes the imagination to perceive how the State and the public were injured, even to the slightest degree, by appellant’s admission that he had registered a .08 reading on the alcosensor, particularly as appellant could not have been lawfully convicted or sentenced legally on both the DUI and DWUAC offenses.

The record discloses that the trial court declared a mistrial immediately following the invited State’s motion, and summarily dismissed the subsequent attempts by appellant’s counsel to explain the inadvertence of appellant’s disclosure and his proffer regarding what question he next intended to ask. The trial court gave appellant no opportunity before declaring mistrial either to object thereto or to present an argument as to the appropriate means of correcting the testimonial error; the attempted explanations of events by appellant’s counsel precludes a finding that appellant acquiesced by silence in the ruling of the trial court. We are not prepared to rule that the conduct of counsel waived appellant’s right to appeal this issue of constitutional import. “[A] waiver of the important right to appeal an adverse ruling should not be inferred unless it is clear and unmistakable.” State v. Mason, 181 Ga. App. 806, 808 (1) (353 SE2d 915).

We conclude, based on the circumstances surrounding the granting of the mistrial motion, that the trial court erred. This case is distinguishable from Miller v. State, 204 Ga. App. 562, 565 (420 SE2d 12) where despite repeated instruction the defense counsel continued to inject irrelevant and prejudicial matters into the trial, and the court considered the possibility of cautionary instructions to the jury, but concluded that the conditions created by the defense made an impartial verdict impossible. Even assuming arguendo that appellant had the burden, under the attendant circumstances, of showing lack of manifest necessity, we are satisfied that such showing has been made. “Ordinarily, it is not cause for a mistrial in a criminal case where illegal testimony is tendered but the court refuses to admit it, and instructs the jury not to consider it.” Anderson v. State, 262 Ga. 289, 290 (1) (418 SE2d 1). Moreover, where the State’s witness (rather than appellant) testified in the jury’s presence as to an alcosensor reading of .12, this court has held that denial of defendant’s request for mistrial was not error — which perforce carries the legal conclusion that there existed, under those circumstances, no manifest necessity for declaring a mistrial. Whiteley v. State, 188 Ga. App. 129 (1) (372 SE2d 296); compare Sturdy v. State, 192 Ga. App. 71 (383 SE2d 632). To conclude that manifest necessity existed in this case would compel trial courts in virtually every instance where illegal evidence is received to grant a mistrial motion; such a result would run contrary to the basic rule expressed in Anderson, supra at 290 (1). The trial court erred in denying appellant’s plea of former jeopardy as there existed, as a matter of law, no manifest necessity for declaring a mistrial in this instance. Compare Smith, supra; Bradfield, supra.

Decided April 13, 1994.

W. Henry Toler III, for appellant.

Ralph T. Bowden, Jr., Solicitor, Gwendolyn R. Keyes, W. Cliff Howard, Assistant Solicitors, for appellee.

2. The State’s claim that appellant failed timely to raise in writing the plea of former jeopardy is without merit. No new arraignment was held between the first and second trial; it would be impossible under these circumstances for appellant to file a plea of former jeopardy before arraignment. The second trial was conducted the next morning (less than 24 hours from the termination of the first trial); the time constraint under which appellant’s counsel was operating is self-evident. Further, “the failure to file a written plea of former jeopardy prior to trial will not defeat an accused’s right to be free of multiple convictions for the criminal act.” McClure v. State, 179 Ga. App. 245, 246 (345 SE2d 922); accord Bailey v. State, 184 Ga. App. 890, 892 (2) (363 SE2d 172); see Bailey v. State, 180 Ga. App. 602 (349 SE2d 822). Thus, appellant has not waived any issue of substantive double jeopardy in this case. Compare State v. Evans, 192 Ga. App. 216, 219-220 (384 SE2d 404) and Redding v. State, 188 Ga. App. 805 (374 SE2d 339).

Judgment reversed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0201.
    JONES v. THE STATE.
    (444 SE2d 89)
   Andrews, Judge.

Jones was tried before a jury on the charge of possession of cocaine with intent to distribute. He was acquitted on the charge of intent to distribute, and convicted of the lesser included offense of possession of cocaine. Jones appeals from the judgment entered on the jury verdict.

Two police officers patrolling in a high crime and drug activity area repeatedly told Jones to leave a street corner where he had been standing and where “no loitering” signs were posted in the vicinity. After the officers noticed that Jones returned to the corner on every occasion after they left, the officers exited their patrol cars, conducted a pat-down for weapons and a warrant check on Jones, and again told him to leave the corner. After Jones left, one of the officers found a quantity of what appeared to be rocks of crack cocaine in a clear plastic wrapper in grass six to eight inches high about five feet from where Jones had been standing on the corner. The officers left the suspected cocaine on the ground, moved their vehicles out of sight, and hid a short distance away to see if anyone returned for the package. After a few minutes, the officers observed Jones return to the corner again, get down on his hands and knees in the area of the suspected cocaine, and move his hands through the grass. Jones then stood up, put his hands in his pockets, and began to walk away from the corner. Suspecting Jones had found and pocketed the suspected cocaine, the officers ran after Jones, and stopped and searched him. Both officers testified that they found the clear plastic wrapper containing the suspected cocaine on Jones’ person. The substance found on Jones’ person was later identified as approximately six rocks of crack cocaine. Jones testified that the police officers showed him the bag of cocaine after he was arrested, but he claimed the cocaine was not his and it was not on his person when he was arrested.

1. Jones claims the trial court erred by failing to direct a verdict of acquittal at the close of the State’s case. Defense counsel did not move for a directed verdict on the basis that Jones did not possess the cocaine. The record reflects that at the close of the State’s case, defense counsel moved for a directed verdict on the basis that there was no evidence of intention to distribute and that, at best, the evidence showed possession of cocaine. The trial court denied the motion and subsequently charged the jury, sua sponte, on the lesser included offense of possession of cocaine for which the jury convicted Jones. See Alford v. State, 200 Ga. App. 483, 484 (408 SE2d 497) (1991). Since Jones was found guilty of the lesser included offense of possession of cocaine, the trial court’s refusal to grant a directed verdict on the basis that there was no evidence of intention to distribute is moot. Cornwell v. State, 193 Ga. App. 561 (388 SE2d 353) (1989); cf. Thomas v. State, 184 Ga. App. 131, 132 (361 SE2d 21) (1987); Waters v. State, 177 Ga. App. 374, 376-377 (339 SE2d 608) (1985).

2. Jones contends the trial court erred by denying his pre-trial motion to suppress evidence of the cocaine found on Jones’ person on the basis that the police officers conducted an unlawful search without a warrant or probable cause. “The transcript of the [suppression] hearing is not included in the appellate record. Inasmuch as factual and credibility determinations made by the trial court at a suppression hearing must be upheld by the appellate court unless shown to be clearly erroneous [cit.], and the absence of the transcript from the record makes that showing impossible, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s denial of the motion to suppress. [Cit.]” Conyers v. State, 260 Ga. 506, 508 (397 SE2d 423) (1990).

3. Jones claims the trial court erroneously refused to give the following requested charge: “[W]here the facts and evidence and all reasonable deductions therefrom present two reasonable theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compels the acceptance of a theory which is consistent with innocence.” This so-called “two theories” principle is a much criticized variant of the rule with respect to circumstantial evidence stated in OCGA § 24-4-6. See, e.g., Langston v. State, 208 Ga. App. 175, 177 (430 SE2d 365) (1993); Burris v. State, 204 Ga. App. 806, 810-811 (420 SE2d 582) (1992).

Under Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991), “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Thus, in appropriate cases, Robinson requires, upon request, that the trial court give a charge on the principle set forth in OCGA § 24-4-6 to guide the jury on the “quantum of circumstantial evidence which will authorize a conviction.” Id. at 699. The requested “two theories” charge is not substantially equivalent to the principle set forth in OCGA § 24-4-6 which states: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Accordingly, Robinson does not require that the requested “two theories” charge be given and we find no error in the trial court’s refusal to instruct the jury on this principle. See Langston, supra.

4. The evidence was sufficient to support the conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

Decided March 30, 1994

Reconsideration denied April 14, 1994

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Carol L. Stokes, Assistant District Attorney, for appellee.