author: Smith, Presiding Judge. Blackburn, Chief Judge,

text:
    A01A1951.
    KIM et al. v. LIM et al.
    (563 SE2d 485)
   Smith, Presiding Judge.

In this case, we are once again called upon to decide the extent to which the courts of this state may resolve disputes arising within a church or religious organization. While First Amendment concerns substantially limit the power of the courts to intervene in internal church disputes, we nevertheless may be required to resolve the issue of disposition of a church’s property. Here, at least part of the dispute between the parties concerns the church’s real and personal property. The trial court therefore erred in granting summary judgment in its entirety to the defendants below. We agree with the trial court, however, that the church at issue here is an autonomous congregational body and that this status places certain limitations on any court’s inquiry. We also find that the trial court abused its discretion in denying the appellants’ motion to add parties. We therefore reverse and remand this case for further action consistent with this opinion.

The facts relevant to those issues we are permitted to address are easily recounted. As the result of the decision to call an interim pastor, the Siloam Korean Church split into two factions, one led by plaintiff-appellants Steve Kim, Myong Ko, and Keum Rhee (“the Kim faction”), the other by defendant-appellees Tae Pyung Lim and Moon H. Kim (“the Lim faction”). After escalating physical confrontations at the church building, the Kim faction filed a petition for a temporary restraining order in the Superior Court of Gwinnett County. The petition was amended to seek an accounting, and the action was further amended at various times to assert, among other claims, contentions regarding the church building, the church bank account, and a note held first by Wachovia Bank and then by another corporation formed by some of the church members. The Kim faction also filed a motion to add parties and attached a fourth amended and restated complaint to this motion. After discovery, including the depositions of many of the principal participants in the controversy, the Lim faction moved for summary judgment.

In a lengthy order, the trial court concluded that the church government was congregational in form and that all disputes between the parties arose from a question of church discipline and government of ecclesiastical affairs. It further concluded that the named plaintiffs (appellants here) had no standing to bring their claim because they had been excommunicated by proper authority of the defendant-appellees. Concluding that only a majority of the church members can decide the disposition of the church property, the trial court granted summary judgment with respect to all claims asserted before the filing of the fourth amended complaint. It also granted permission to the defendants to file for summary judgment with respect to any issues raised in the fourth amended complaint.

The Kim faction appealed, asserting 21 enumerations of error. Appellants’ brief, however, addresses only some of these enumerations and fails to place them in orderly sequence as required by Court of Appeals Rule 27 (c) (1). Any enumerations of error not supported in the brief are deemed abandoned. Court of Appeals Rule 27 (c) (2). Moreover, the constitutional limitations imposed upon our courts forbid addressing many of these claims. We will consider here only those that are both permissible and dispositive.

1. In cases involving disputes over church property, Georgia law recognizes two types of church government: congregational and hierarchical. Kidist Mariam Ethiopian &c. Church v. Kidist Mariam Ethiopian &c. Church, 219 Ga. App. 470, 472-473 (1) (465 SE2d 491) (1995). We therefore must determine whether the Siloam Korean Church is a congregational or hierarchical church.

A congregational church has been defined as one “strictly independent of other ecclesiastical associations, and (one that) so far as church government is concerned, owes no fealty or obligation to any higher authority.” Watson v. Jones, 80 U. S. 679, 722 [(20 LE 666)] (1871). On the other hand, “(h)ierarchical churches may be defined as those organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head.” Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church, 344 U. S. 94, 110 [(73 SC 143, 97 LE 120)] (1952).

Crumbley v. Solomon, 243 Ga. 343, 344 (254 SE2d 330) (1979).

If the church government is congregational, then a majority of its members control its decisions and local church property. If hierarchical, then we use neutral principles of law to determine whether the local church or parent church has the right to control local property. Those neutral principles are state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination.

(Citations and punctuation omitted.) Kidist Mariam, supra, 219 Ga. App. at 473 (1).

Here, the evidence is undisputed that the Siloam Korean Church was founded as a wholly independent church, answering to no association, synod, convocation, bishop, or other ecclesiastical head. None of the church documents in the record reflect any obligation or fealty to a higher church authority; in fact, they state repeatedly that it is “an independent church” and that “this church is autonomous and no other church can interfere in its administration.” The Siloam Korean Church, therefore, is congregational in character.

Appellants rely upon a decision of this court, Crocker v. Stevens, 210 Ga. App. 231 (435 SE2d 690) (1993), to assert that the governance of the Siloam Korean Church was not congregational but a “hybrid” form partaking of both congregational and hierarchical aspects. In Crocker, we found a church organized as a nonprofit corporation to represent a hybrid form of church governance. The only stated basis for this decision was that “the church was organized as a nonprofit corporation, with articles of incorporation and by-laws” and that such organization was inconsistent with the congregational form of church government. Id. at. 233 (2). But the article of the Georgia Code governing corporations organized for religious purposes, OCGA § 14-5-40 et seq., includes a provision addressing exclusively the rights and representation of those churches having a congregational form of government. OCGA § 14-5-43; see Jones v. Wolf, 244 Ga. 388, 389 (3) (260 SE2d 84) (1979). Construing the mere existence of a corporate form to extinguish the congregational character of a church would render OCGA § 14-5-43 completely meaningless, and it is not presumed that the legislature intended to enact meaningless language. Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994). Such an interpretation is also contrary to other decisions of the Supreme Court of Georgia and this court treating some incorporated churches as congregational in character. See, e.g., Anderson v. Dowd, 268 Ga. 146, 147 (1) (485 SE2d 764) (1997); First Rebecca Baptist Church v. Atlantic Cotton Mills &c. Church, 263 Ga. 688 (440 SE2d 159) (1993); Reddick v. Jones, 251 Ga. 195 (304 SE2d 389) (1983); Holmes v. Peebles, 251 Ga. App. 417 (554 SE2d 566) (2001). To the extent that Crocker can be construed as holding that an incorporated church cannot be a congregational church, it is disapproved. Compare Kidist Mariam, supra, 219 Ga. App. at 473 (local church “hybrid” because acknowledged authority of archbishop of its denomination in matters of religious faith, practice, and liturgy only, while reserving to itself control of internal affairs of church corporation).

Appellants also rely upon First Born Church of the Living God v. Hill, 267 Ga. 633 (481 SE2d 221) (1997). In First Born, the Supreme Court of Georgia considered whether the trial court could properly order a church to conduct annual meetings as provided by the general corporations code in OCGA § 14-3-701. In concluding that the internal governance of the church did not provide for such annual meetings, the court construed a “ ‘ruling convocation or ecclesiastical head’ ” as defined in Crumbley, supra, 243 Ga. at 344, to include not only a religious hierarchy existing outside and above the individual church but also an executive board and senior bishop elected by the congregation to manage the internal affairs of the individual church. From this, the Supreme Court concluded that the church was hierarchical because “[t]he Church constitution affords its membership only indirect control over Church affairs through the right to vote for the Executive Board and Senior Bishop at the Church General Assembly held every four years.” First Born, supra, 267 Ga. at 634 (1). Therefore, it concluded the trial court could not order annual meetings to be held because the order was “an unconstitutional judicial interference in the government of the Church.” Id.

It may be argued that the distinction drawn by the Supreme Court in First Born was focused only on the authority of the courts of this state to force a church to call a meeting in conflict with the church constitution and that it was not intended to change the definition of a congregational church as established by the United States Supreme Court in Watson, supra, and in Kedroff, supra. Watson explicitly recognizes that a congregational church may be governed “solely within itself, either by a majority of its members or by such other local organism as it may have instituted for the purpose of ecclesiastical government.” (Emphasis supplied.) 80 U. S. at 724. But we need not reach that issue, because the original bylaws of the Siloam Korean Church as constituted upon founding of the church in 1992, while providing for some managerial duties on the part of a board of deacons and session, repose authority for decisions of church governance in the membership and state that “the administrative power of the church comes from the membership.” A later revision of these bylaws, identified by a deacon of the church in his affidavit, also calls for votes by the membership. The bylaws of the nonprofit corporation also provide for decisions to be made by the membership at both annual and special meetings. The membership of the Siloam Korean Church, through both its ecclesiastical and corporate enactments, therefore retains direct control over the affairs of the church. For this reason, First Born is inapplicable here.

2. The court may not inquire into “ ‘a controversy relating to the faith, teaching, doctrine, and discipline of the church’ ” such as expulsion from membership, internal procedures, quorums, or determination of membership in the church. United Baptist Church v. Holmes, 232 Ga. App. 253, 254 (500 SE2d 653) (1998). These “are religious matters that the court shall not question, and . . . are beyond judicial review.” Id. Thus, the relative import of the various church documents in the record (some in Korean and some in English), including the different versions of the church’s religious constitution, bylaws, and corporate documents, and the validity of the excommunication of appellants Steve Kim and Myong Ko by the church session, are beyond the power of the Georgia courts to determine. Such matters of doctrine and church discipline would bring “the Georgia courts into the heart of an ecclesiastical dispute, a position we are eminently unqualified to take and are forbidden to take by the constitutional safeguard of separation of church and state.” St. Mary of Egypt Orthodox Church v. Townsend, 243 Ga. App. 188, 194 (532 SE2d 731) (2000).

But the trier of fact is not forbidden to consider the composition of the church membership for the limited purpose of determining standing to bring a claim on behalf of the church membership. Anderson, supra, 268 Ga. at 147. The trial court therefore properly considered membership in the church in determining the standing of appellants to bring this action, but it did not complete its analysis. It is true that an expelled or excommunicated member cannot represent church members in a claim to prevent diversion of church property, and it is also true that we may not inquire into the validity of such an excommunication. Stewart v. Jarriel, 206 Ga. 855, 856 (5), (6) (59 SE2d 368) (1950). But while the record reflects that appellants Steve Kim and Myong Ko were excommunicated by resolution of the church session and acknowledged receiving the notice of excommunication, although they disputed its validity, nothing shows that Keum Rhee, the third appellant, was excommunicated or otherwise removed from membership in the church. She therefore is qualified to bring an action in which she claims to represent a majority of the membership of the church. Gervin v. Reddick, 246 Ga. 56, 57 (2) (268 SE2d 657) (1980); Sapp v. Callaway, 208 Ga. 805, hn. 2 (69 SE2d 734) (1952).

Moreover, without impinging upon religious or doctrinal matters, the trial court may legitimately consider matters involving distribution or disposition of tangible church property such as realty, bank accounts, and other temporal assets. “It is well-settled that a court of equity will take jurisdiction over disputes involving churches when property rights are involved and when the suit is brought on behalf of a majority of the congregation.” Gervin v. Reddick, supra, 246 Ga. at 57 (2).

3. We next consider the scope of permissible review of the actions of a congregational church body by the courts of this state. The courts are authorized to determine which of the disputing factions here represents a majority of the membership of the Siloam Korean Church, a finding of fact that may be established without inquiring into religious doctrine or governance. Gervin v. Reddick, supra, 246 Ga. at 57 (2); Mitchell v. Dickey, 226 Ga. 218, 220-221 (2) (173 SE2d 695) (1970). In this context, “church documents will be considered only insofar as they determine or assist in the determination of the persons who are entitled to possess and enjoy the property.” (Punctuation omitted.) Jones v. Wolf, supra, 244 Ga. at 389 (3). This determination should resolve all matters pending before the court pertaining to rights in the church property, the only issue the courts are authorized to decide here. Once the trial court “resolve [s] the property issues by determining which group represented the majority of the congregation,” its involvement must come to an end. Gervin v. Reddick, supra, 246 Ga. at 59 (5). Since the question of majority membership is a question hotly disputed by the Kim and Lim factions and therefore must be decided by the trier of fact, the grant of summary judgment by the trial court was inappropriate.

4. In view of our decision that the trial court’s grant of summary judgment must be reversed, we agree with appellants’ contention that the trial court erred in denying their motion to add parties. “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” OCGA § 9-11-21. ‘Where a party seeks to add a new party by amendment, OCGA § 9-11-21 requires the exercise of discretion by the trial court. A trial court abuses that discretion, however, if it denies the addition of a party based on delay alone.” (Citations and punctuation omitted.) Shiver v. Norfolk-Southern R. Co., 220 Ga. App. 483, 484 (469 SE2d 769) (1996). Here, the trial court denied appellants’ motion in one sentence without any explanation of the manner in which it exercised its discretion. We therefore cannot review the propriety of the trial court’s decision. In view of the significantly altered posture of this case on remand, we reverse the trial court’s denial of appellants’ motion to add parties and direct the trial court to reconsider the motion in light of the limited issues to be presented on remand. As we noted above, appellants’ action may continue based upon appellant Keum Rhee’s allegation that she represents a majority of the church membership.

Accordingly, the trial court’s denial of appellants’ motion to add parties is reversed. The trial court’s grant of summary judgment on the basis of lack of standing and First Amendment grounds is also reversed, and this case is remanded for further proceedings consistent with this opinion.

Decided March 29, 2002.

Hollberg & Weaver, William B. Hollberg, Townsend McKee, Timothy W. Townsend, for appellants.

Macey, Wilensky, Cohen, Wittner & Kessler, Richard C. Litwin, Andrew S. Ree, for appellees.

Judgment reversed and remanded.

Pope, P. J., Andrews, P. J., Johnson, P. J., Ruffin, Barnes, Ellington, Phipps and Mikell, JJ., concur. Blackburn, C. J, Eldridge and Miller, JJ., concur specially.

Blackburn, Chief Judge,

concurring specially.

I agree with the majority that some imprecise language in Crocker v. Stevens, 210 Ga. App. 231 (435 SE2d 690) (1993), merits clarification. Specifically, Crocker indicates that the church involved therein was hybrid in nature, neither congregational nor hierarchical, although it would have been more accurate to state that the law applicable to that congregational church, not the church’s classification, was a hybrid blend of traditional congregational and hierarchical jurisprudence. In other words, because the church was congregational in nature but a nonprofit corporation in form, analysis of its internal bylaws using neutral principles of law (a hallmark of hierarchical jurisprudence) would be required to adjudicate the claims brought by the controlling majority faction (a hallmark of congregational jurisprudence). This resulting hybrid jurisprudence, set forth in Reddick v. Jones, 251 Ga. 195 (304 SE2d 389) (1983), was appropriately applied to the facts in Crocker, and, as such, its underlying premise remains sound.

I concur in the majority’s opinion, but not its verbiage, because I strongly believe that one of the main functions of this, or any other court, is to constantly refine our case law and remove ambiguities wherever possible, without harshness.

I am authorized to state that Judge Eldridge and Judge Miller join in this special concurrence.

       A second action has been filed in Fulton County by some of the members of the Lim faction against some of the members of the Kim faction.

       While the order of the magistrate sitting by designation in this case contains four pages of factual and legal conclusions, it contains no record references and cites no constitutional provision, statute, or decision of any court in support of its lengthy and detailed findings.

       Several variants of a church constitution or statement of faith styled “constitution” or “rules” or “by-laws” appear in the record, in Korean and in English translation, as well as articles of incorporation and bylaws filed in connection with the nonprofit corporation created by the church. Appellants and appellees differ strenuously as to which of these documents should be given primacy over the others. But we limit our inspection of these records here to a determination of whether the church government is congregational or hierarchical in character.

       As noted in First Born, the Georgia Nonprofit Corporations Code provides that if any of its provisions is inconsistent with religious doctrine governing a nonprofit corporation’s affairs “on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both.” OCGA § 14-3-180; First Born, supra, 267 Ga. at 633.


source: Caselaw Access Project

author: Barnes, Judge. Pope, Presiding Judge, Mikell, Judge,

license: Public Domain

text:
    A01A2045.
    BIUS v. THE STATE.
    (563 SE2d 527)
   Barnes, Judge.

After the grant of her interlocutory appeal, Sherri Samantha Bius appeals the denial of her motion to suppress, challenging the searches of her vehicle and her residence. Following the execution of the warrant at her home, Bius was indicted on more than 30 counts of criminal activity, including allegations of financial identity fraud, forgery, and theft by receiving stolen property.

She contends the trial court erred by denying her motion to suppress the evidence seized in both searches because the evidence seized during the search of her car resulted from an unlawful traffic stop and detention, and the evidence seized during the search of her home was the result of an unauthorized search warrant. The warrant was unauthorized, she argues, because the information in the affidavit supporting the search warrant was stale, the confidential informant’s reliability was not established, and the warrant relied in part on evidence illegally seized from her car. Although we find that the traffic stop was not authorized and must reverse the denial of that part of Bius’s motion to suppress, we find no error regarding the warrant authorizing the search of Bius’s house. Therefore, we affirm that portion of the denial of Bius’s motion to suppress.

1. The rules applicable to an appellate court’s review of a trial court’s decision on a motion to suppress were announced in Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994):

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted; emphasis in original.)

Further, when

determining whether probable cause supported issuance of a search warrant, a “totality of the circumstances” test is employed. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of [the] reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted.) Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842) (1993).

2. Bius first contends that the trial court erred by denying her motion to suppress evidence seized after the traffic stop in Gwinnett County because the officer stopped her only because he recognized he had stopped her previously and because her car had a “drive-out tag.” Bius also contends the search was invalid because the officer exceeded the limited time necessary to investigate the reason for the stop. See Smith v. State, 216 Ga. App. 453, 455 (2) (454 SE2d 635) (1995). Because we find that the stop was unlawful, we need not address the second prong of Bius’s attack.

The officer testified that he stopped Bius because her car was displaying a drive-out tag and he wanted to see if she had owned the car for less than 30 days. He further testified that it was his common practice to pull over vehicles that had drive-out tags without dates on them. At the time of the stop, Georgia law had not been changed to require that the expiration date be displayed on the drive-out tag. See OCGA § 40-2-8 (b) (2) (B) (i), effective July 1, 2000. The officer did not testify, however, that anything about the appearance of the drive-out tag led him to believe that Bius was violating the vehicle registration laws. Compare Chiasson v. State, 250 Ga. App. 63, 64 (1) (549 SE2d 503) (2001) (officer authorized to stop car to investigate whether a car with a faded or weathered drive-out tag was in compliance with vehicle registration laws).

In Berry v. State, 248 Ga. App. 874, 880 (3) (547 SE2d 664) (2001), this court held that “the critical issue to the validity of a traffic stop is whether the officer had ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Thus, we considered whether stopping a vehicle with a drive-out tag because such cars might be stolen was authorized under our law and concluded that it was not. Id. at 879-881. Extending that analysis to the present circumstances, we find that stopping a car with a drive-out tag solely to ascertain whether the driver was complying with our vehicle registration laws is also not authorized. See id. at 888-890 (Pope, P. J., concurring specially). The officer in this case also “had no ‘particularized and objective basis for suspecting [Bius] of criminal activity.’ ” Id. at 880 (3). He had a mere hunch that the driver and owner of a car with a drive-out tag might not be complying with the vehicle registration laws. Therefore, the traffic stop was not authorized, and the trial court erred by denying the motion to suppress as it concerned the items seized during the search of Bius’s car. Accordingly, this part of the trial court’s order must be reversed and remanded to the trial court with direction to grant the motion to suppress on these items.

In Berry, both-Presiding Judge Pope’s special concurrence, joined by four other judges, id. at 888-890, and Judge Ruffin’s special concurrence, joined by two other judges, id. at 883-888, called for over- „ ruling Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994). Although a clear majority of this court wanted Burtts overruled, our opinions in Berry did not explicitly overrule it. Therefore, we now accomplish what we implied in Berry and expressly overrule Burtts and any other cases which would authorize a traffic stop solely because a vehicle was being operated with a dealer’s drive-out tag.

3. Bius attacks the affidavit supporting the search warrant for her residence on the theory that the confidential informant’s reliability was not established and the information he provided was stale. We disagree. When determining whether an affidavit sufficiently establishes probable cause, we use the “Totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by [our Supreme C]ourt in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). To determine an informant’s reliability, a magistrate should be furnished with three facts: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished. Mitchell v. State, 239 Ga. App. 735, 736 (1) (521 SE2d 873) (1999).

The affidavit in this case shows that two of the three types of facts, the information previously supplied by the informant and the use to which the information was put, were provided explicitly in the affidavit. The third type, the elapsed time since the information was supplied, was not provided. It is not necessary, however, that all three types of information be provided in every case so long as the magistrate has sufficient information to make an independent analysis of the informant’s reliability. Pitts v. State, 212 Ga. App. 556, 557 (1) (442 SE2d 797) (1994). Further, the issue of staleness is incorporated in the broad overview of the totality of the circumstances test. State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).

The affidavit recites that the informant saw Bius steal mail from post office mailboxes, that she kept stolen mail at her home, that-she had large quantities of stolen mail, credit cards, mail bags, blank check paper, and stolen identification cards at her home as recently as July 18-24, 1999, and that she had been stealing mail for about two years. Further, the informant provided to the officers unopened mail that he took from Bius’s home while he was there to purchase drugs from her in a controlled buy. The person who sent this mail informed the officers that she had mailed the letter and that it never arrived. The affidavit further related that the officer had investigated numerous complaints of identity fraud and forgery.

Therefore, we find that the information provided in the affidavit was sufficient to provide a substantial basis for concluding that probable cause existed for issuing the search warrant. Galvan v. State, 240 Ga. App. 608, 609 (524 SE2d 297) (1999).

4. Because we have determined that some of the information in the affidavit was obtained as the result of an illegal search, we must also determine whether the remaining information in the affidavit was sufficient to authorize issuance of the search warrant. Examining the entire affidavit (Kelly v. State, 184 Ga. App. 337 (1) (a) (361 SE2d 659) (1987)), we note that it merely relates that Bius was stopped by a police officer in Gwinnett County and was found to possess more than 100 U. S. Postal Service keys, numerous personal checks and credit cards in the names of approximately 26 different people, and credit cards and a Social Security card in the name of another person. The affidavit, however, does not rely upon this information as a basis for searching Bius’s home. Instead, the information discussed above in Division 3 formed the basis for issuing the warrant.

When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admissible.

(Citations and punctuation omitted.) Rothfuss v. State, 160 Ga. App. 863, 864 (1) (288 SE2d 579) (1982). Considered in that manner, we find that the affidavit supporting the warrant authorizing the search of Bius’s home contained sufficient information, independent of that derived from the search of her car, to provide probable cause to search Bius’s home. Consequently, although the trial court erred by denying the motion to suppress the evidence derived from the search of the car, this error was harmless as it concerns the search of Bius’s home.

Accordingly, we affirm the trial court’s decision to deny the motion to suppress the evidence seized during the search of Bius’s home, and we reverse the denial of the motion to suppress the evidence seized during the search of her car and remand the case to the trial court with direction to suppress the evidence seized in that search.

Judgment affirmed in part and reversed in part with direction.

Andrews, P. J, Johnson, P. J., Ruffin, Eldridge, Miller, Ellington and Phipps, JJ, concur. Pope, P. J, concurs specially. Blackburn, C. J., Smith, P. J, and Mikell, J, concur in part and dissent in part.

Pope, Presiding Judge,

concurring specially.

I concur fully in the majority opinion but write separately to stress that ten out of twelve judges of this Court have already agreed, even in situations arising before Georgia law required dealer tags to show their expiration date, that it was a violation of the Fourth Amendment to stop a car solely because it carried a dealer tag. Berry v. State, 248 Ga. App. 874, 880 (3) (547 SE2d 664) (2001). The reasoning in Berry is sound, and it requires overruling Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994) — if that case has not already been overruled by Berry.

Prior to the time that OCGA § 40-2-8 was modified to require that dealer tags show their expiration date, law enforcement officers argued that they had grounds to stop cars with dealer tags because (1) they had knowledge that some of those cars might be stolen, and (2) they wanted to check to see whether the undated tag had expired. See, e.g., Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989) (stolen); Burtts v. State, 211 Ga. App. at 840 (check for expiration).

In Berry a ten-judge majority expressly held that the first argument could not withstand constitutional scrutiny and therefore it overruled Watson. Eight of those same judges also held that for the identical reason, the second argument failed the same test, and that therefore Burtts should also be overruled. Indeed, Burtts was based, in part, on Watson.

In Watson this Court held that, based on an officer’s subjective knowledge that some cars with dealer tags might be stolen, the simple fact that someone was driving a car with a dealer tag was an “objective manifestation that the persons stopped may be engaged in criminal activity.” (Citations and punctuation omitted.) 190 Ga. App. at 696-697. In Berry ten judges concurred in overruling that aspect of Watson. 248 Ga. App. at 880 (3). As explained by Judge Ruffin in his special concurrence, stopping apparently compliant drivers because of the danger presented that some of those drivers are engaged in criminal activity that is not observable at the time of the stop does not survive the United States Supreme Court’s balancing test in Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979). That test requires balancing the intrusion of a law enforcement practice on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Id. at 653-654. That the decision in Berry is correct is made plain by Judge Ruffin in his footnote 17 — although it is documented that some cars are stolen more often than others, no one would argue that in an effort to prevent car theft, the police should be allowed to randomly stop anyone driving one of the most frequently stolen cars.

Burtts contains the identical flaw, and, moreover, it is based in part on Watson. In Burtts, the officer pulled the car over just to check to see if the dealer tag had expired. That case held that because an undated dealer tag might have expired, there was articulable suspicion of illegal operation. 211 Ga. App. 840. In Delaware v. Prouse, the Supreme Court declared unconstitutional random stops of individual cars for the purposes of checking the driver’s license and the car’s registration to see if they were valid, holding:

except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

440 U. S. at 663 (VII). Automobile licenses and registrations are issued periodically and promote legitimate state interests. Id. at 658. But, even though all licenses and registrations expire periodically, that is not a sufficient basis to randomly stop drivers to make sure that their documents are up to date.

The same reasoning applies here, and in Burtts, to invalidate stopping drivers solely because they have undated dealer tags in an effort to enforce registration laws. Unless something else about an undated dealer tag (such as that it looks old, torn, or faded) suggests that it may have expired, a dealer tag, standing alone, does not provide an articulable suspicion that the tag has expired. Thus, Burtts should be overruled, specifically for cases arising prior to July 1, 2000, the effective date of the changes made to OCGA § 40-2-8 that require expiration dates on dealer tags.

Mikell, Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 1, 3 and 4.1 respectfully dissent from Division 2, because I believe that the analysis of Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994), is valid for cases arising prior to July 1, 2000, the effective date of the changes made by OCGA § 40-2-8 (b) (2) (B) (i). I agree with the majority to the extent that Burtts should not be followed for cases arising after July 1, 2000.

I am authorized to state that Chief Judge Blackburn and Presiding Judge Smith join in this dissent.

Decided March 29, 2002.

Peevy & Lancaster, Donn M. Peevy, Lucas O. Harsh, for appellant.

Thurhert E, Baker, Attorney General, Michael E. Hobbs, Deputy Attorney General, David S. McLaughlin, Assistant Attorney General, for appellee.


author: Barnes, Judge. Smith, Presiding Judge,

text:
    A01A2069.
    PONSE v. ATLANTA CASUALTY COMPANY.
    (563 SE2d 499)
   Barnes, Judge.

Ebodio Ponse brought suit against Atlanta Casualty Company alleging negligence, bad faith, and conscious indifference to consequences in failing to settle within policy limits and failing to defend in an action against him following an automobile accident. Ponse appeals from the trial court’s denial of his motion for partial summary judgment and grant of summary judgment to Atlanta Casualty. Because we conclude that questions of fact exist on the issues in this case, we reverse.

The insurance policy here was first issued by Atlanta Casualty to Raymond Morales in 1991, listing Morales and his wife, Miriam Morales, as drivers. In 1993, the Moraleses added a 1987 Chevrolet Celebrity to the policy.

On September 5,1994, while driving the Celebrity, Ponse, who is the Moraleses’ son-in-law, was involved in an automobile accident with a car driven by Crystal Wilson. At the time of the accident, Ponse was driving under the influence of alcohol and without a license. Before filing suit against Ponse, Wilson’s attorneys made two settlement demands upon Atlanta Casualty for the policy limits of $15,000, which were rejected by Atlanta Casualty. The day before filing suit, Wilson’s counsel sent a copy of the suit to Atlanta Casualty. The cover letter informed Atlanta Casualty that the suit was being forwarded that day to the Gwinnett County State Court for filing. The suit was filed the next day, and Atlanta Casualty received its copy on January 25, 1996, the day after it was filed. Neither Ponse nor Atlanta Casualty filed an answer to the complaint. The trial court subsequently entered a default against Ponse in the amount of $163,554.45. Ponse sued Atlanta Casualty for failing to settle within policy limits and failing to defend him in the underlying action.

In addition to the facts cited above, the record shows that Ponse sought advice from a lawyer on February 1, 1996, and he brought with him the service copies of the pleadings with which he was served. This attorney testified in his deposition that he telephoned Atlanta Casualty in Ponse’s presence, and the insurer confirmed it was aware that the lawsuit had been filed. Ponse’s attorney then confirmed this conversation by letter to Atlanta Casualty and stated in the letter that during the telephone conversation Atlanta Casualty had indicated it would defend the suit. Atlanta Casualty, however, denies receipt of this letter.

1. Questions of material fact exist on whether Atlanta Casualty’s conduct waived any defenses it might have had. Without notice to anyone, Atlanta Casualty failed to provide a defense after it was notified of the pending suit and notified that Ponse had been served with process. Nothing in this record shows that Atlanta Casualty decided not to defend Ponse because of any misrepresentations before Atlanta Casualty allowed a default judgment to be taken against him. In fact, Atlanta Casualty admitted that it did not defend because of its contention that it did not know that Ponse had been served with process. Of course, this contention is contradicted by the deposition of Ponse’s attorney and the letter he sent to Atlanta Casualty, confirming the conversation in which he informed the company that Ponse had been served and forwarding to it a copy of the summons and complaint served on him. This letter also states that Atlanta Casualty told the attorney that it would take care of the defense.

The letters from the original plaintiff’s attorney and from Ponse’s personal attorney were sufficient to raise an issue of fact on the issue of notice to Atlanta Casualty under OCGA § 33-7-15 (c). Ga. Farm &c. Ins. Co. v. Martin, 209 Ga. App. 237, 238 (1) (433 SE2d 315) (1993), rev’d on other grounds, 264 Ga. 347 (444 SE2d 739) (1994). Further, before it allowed the default judgment to be taken against Ponse, Atlanta Casualty paid for the property damage to the original plaintiff’s automobile, paid the personal injury claims of her passenger, and negotiated with and made settlement offers to the original plaintiff. Later, Atlanta Casualty arguably was notified that suit was to be filed by the original plaintiff’s attorney and was again notified by letter and by telephone by Ponse’s personal attorney that the lawsuit had been filed and Ponse had been served. Nevertheless, Atlanta Casualty did not defend the action, or even advise Ponse that it would not defend him. Our law does not allow an insurance company to proceed in such a manner.

Atlanta Casualty cannot decide secretly not to defend Ponse, permit the action against him to go into default, and then let the plaintiff obtain a default judgment against him for over $160,000 without facing the consequences of its actions. While Atlanta Casualty had a right to investigate whether it had a duty to defend and provide coverage, it was obliged to inform Ponse immediately that it intended to deny coverage if it learned of information indicating that no coverage existed under its policy. See Edwards v. Fidelity &c. Co. of N.Y., 129 Ga. App. 306, 308 (2) (199 SE2d 570) (1973) (“[i]f. . . the insurer learned of facts which could constitute a policy breach and a defense, and immediately gave notice of its intent to avail itself of the defense, no waiver or estoppel could arise”); Home Indem. Co. v. Godley, 122 Ga. App. 356, 361 (1) (177 SE2d 105) (1970) (“the insurer is required to act seasonably in disclaiming liability and it could not delay its decision so long that the insured’s rights were prejudiced thereby”) (citation and punctuation omitted).

Thus, Atlanta Casualty’s conduct may have waived any policy defense it might have asserted against Ponse.

A waiver may be established even though the acts, conduct, or declarations are insufficient to establish an estoppel. Ordinarily, a waiver operates to preclude a subsequent assertion of the right waived or any claim based thereon. And once a right is waived the waiver cannot be withdrawn without the consent of the other party, even if subsequent events prove the right waived to have been more valuable than was anticipated. In certain situations, the question whether waiver will be found in any particular case depends not upon the secret intention of the party against whom it is asserted, but upon the effect which his conduct has had upon the other party, and if intention to waive is to be implied from conduct, the conduct should speak the intent clearly. A fine and often imperceptible line exists between an equitable estoppel and a waiver implied from conduct. And a showing of prejudice to the other party appears to be the central requirement of waiver implied from conduct. ... It is also clear that regardless of [Atlanta Casualty’s] actual intent to prejudice [Ponse’s] legal position [that its] conduct in fact had that result. While normally the question of waiver is a matter for the jury, where, as here, the facts and circumstances essential to the waiver issue are clearly established waiver becomes a question of law.

(Citations and punctuation omitted; emphasis in original.) Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370) (1991).

Because a question of fact exists over whether Atlanta Casualty’s actions constituted a waiver, the fact that it might have had a policy defense does not alter that result. On the face of it, Atlanta Casualty’s actions appear to have prejudiced Ponse’s ability to defend himself. By not providing defense counsel after telling Ponse’s personal attorney that it would, it could have deprived him of the opportunity of defending the case against him or settling the case before trial. Instead, Atlanta Casualty rejected settlement offers and, after suit was filed, allowed the case to proceed to a default judgment, without informing Ponse.

Additionally, under the evidence a question of fact also exists on whether by voluntarily assuming to provide a defense for Ponse, even if not obligated legally to do so, and then abandoning his defense, without notice to him, Atlanta Casualty is liable because it violated the principle of our law that “[w]here one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. [Cit.]” Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991).

2. Regardless of whether Atlanta Casualty has not waived its policy defenses, this record does not support a finding that the Moraleses materially misrepresented facts in their policy affidavit, such as whether Ponse would be a regular driver of the automobiles they insured with Atlanta Casualty. The most that can be said from this record is that a question exists whether the Moraleses did not provide answers to questions that they may not have been asked.

Although “at summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case,” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991), here Atlanta Casualty has the burden of proving its defense and cannot merely rely upon the absence of evidence in the record disproving its defense. Hess v. Textron Automotive Exteriors, 245 Ga. App. 264, 266 (2) (536 SE2d 291) (2000). Atlanta Casualty has failed to carry its burden. This record does not show that the Moraleses misrepresented anything to Atlanta Casualty about whether Ponse would be a regular or primary driver of the Celebrity.

Further, it must be noted at the outset that Atlanta Casualty’s policy does not require that all permissive users be listed in the policy and that under its terms, the policy covers anyone driving the car with the Moraleses’ permission. Consequently, Ponse was not excluded as a permissive driver just because he was not listed on the policy.

The affidavit and deposition of the insurance agent who processed the Moraleses’ request to add the Celebrity to their policy are not sufficient to establish that they “did not reveal” that Ponse would be a regular driver of the car or that she “inquired” whether anyone else would be driving the Celebrity. The actual affidavit and deposition testimony are not so emphatic. The agent could not testify that she asked whether anyone other than the Moraleses would be driving the car; she merely recounted what she usually did. In fact, she had no specific recollection of her conversations with the Moraleses, and no document in her records or in Atlanta Casualty’s records shows that the Moraleses were asked and misrepresented who would be driving their cars. Further, Atlanta Casualty cannot rely on admissions by the Moraleses because their depositions apparently were not taken as they are not included in the record.

Without evidence that the Moraleses lied in response to a question about regular drivers of their automobile, no factual or legal basis exists for Atlanta Casualty’s position. Ponse testified that he did not own the Celebrity, and while he may have used the Celebrity the most, he drove all of the Moraleses’ cars. He also testified that he helped Morales pay for the car because Morales allowed Ponse to use it. Under this testimony, a question of fact exists whether Ponse was more than a permissive driver of the car. Further, no authority in this State requires an insured to inform an insurance company of all the permissive drivers of their vehicles.

3. Although Ponse also contends the trial court erred by denying his motions for partial summary judgment on Atlanta Casualty’s defense of lack of cooperation, we find a genuine issue of material fact remains. Atlanta Casualty’s denial of receipt of the letter forwarding the summons and complaint is sufficient to require that this defense be presented to a jury. In the same manner, we also find issues of material fact exist on Ponse’s claims for bad faith penalties and punitive damages. Even though Atlanta Casualty’s actions appear to have resulted in a default judgment being entered against Ponse, this does not mean that, as a matter of law, Atlanta Casualty acted in bad faith or that OCGA § 51-12-5.1 would authorize an award of punitive damages. Therefore, the trial court did not err by denying his motion for partial summary judgment.

Accordingly, the grant of summary judgment to Atlanta Casualty is reversed, but the denial of partial summary judgment to Ponse is affirmed.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., Pope, P. J, Miller and Mikell, JJ, concur. Smith, P. J., and Phipps, J, concur specially.

Smith, Presiding Judge,

concurring specially.

In this case, serious questions exist with regard to the conduct of both parties. It appears to me that neither Ponse nor Atlanta Casualty Company, nor even the Moraleses, behaved responsibly or in a manner consistent with applicable law. It remains for a jury to sort out blame. Because I agree with the majority that some questions of fact exist that preclude the grant of summary judgment to Atlanta Casualty, I concur in the judgment. I write specially because I cannot agree with all that is said in the majority opinion.

I believe, for example, that a question of fact exists with regard to the crucial issue of whether Ponse’s attorney informed the insurer that Ponse had been served with Wilson’s suit and whether the insurer informed Ponse’s attorney it would defend the suit. Ponse’s attorney testified on his deposition that he telephoned Atlanta Casualty in Ponse’s presence and the insurer confirmed it was aware that the lawsuit had been filed. Although Ponse’s attorney testified he confirmed this conversation by letter to Atlanta Casualty and stated in the letter that during the telephone conversation Atlanta Casualty had indicated it would defend the suit, he was less than certain on his deposition that this had actually been conveyed to him. Atlanta Casualty’s Claims Manager stated in her affidavit that neither Ponse nor Morales ever contacted the company regarding the suit. If a jury decides that Ponse did not actually inform Atlanta Casualty that he had been served, then the only notice it received, given by Wilson’s attorneys, informed the insurer only that suit would be filed, not that it had been filed and that Ponse had been served. Although from this information Atlanta Casualty must have had a fairly good idea that a permissive driver of its insured was very likely to be served, I cannot agree with the majority that this constituted the actual notice required to trigger the duty to defend Ponse.

Further, I cannot agree with the majority that the record does not show a material misrepresentation by the Moraleses. At best, a question of fact exists whether the Moraleses made two such material misrepresentations that would void the policy. First, in my view, they misrepresented the fact that Ponse was at least a part owner of the vehicle. In December 1993, after Ponse married the Moraleses’ daughter Roxana and the Ponses came to live next door to the Moraleses, Ponse and Raymond Morales visited the car dealer from whom Morales had previously purchased several vehicles. Ponse had never had a driver’s license, although he had been driving for over five years and had previously been charged with DUI and driving without a license. The testimony of the proprietor of the car lot establishes that the proprietor refused to sell the car in issue to Ponse because Ponse was not a licensed driver and was under age 21 and that Morales then bought the Celebrity for Ponse’s use. Thereafter, Ponse was the primary user of the Celebrity. He often kept the keys in his half of the duplex, drove the car to and from work, and used it for personal errands. He always had the right to use the car; all he needed to do was get the keys. It was not necessary for him to get permission from Morales. Ponse also helped pay for gas and insurance, and he sometimes paid a portion of the monthly payment for the car and for repairs. Morales was aware that Ponse was not licensed to drive because Ponse told him.

Second, the Moraleses also failed to disclose that Ponse would be the primary driver of the car. When Miriam Morales came to the Oxford Insurance Agency office on December 20, 1993, to add the new car to the insurance policy, she spoke with Monica Quattlebaum. Quattlebaum asked if any other changes should be made, such as adding drivers, and she inquired whether any drivers other than Raymond and Miriam Morales were in their home and whether anyone else would be driving the Celebrity. The Moraleses did not reveal that Ponse would be driving the Celebrity regularly. Notwithstanding arguments that every permissive driver need not be listed, it is clear from the circumstances surrounding the purchase of the Celebrity, as well as from the depositions of Ebodio Ponse and Roxana Morales Ponse, that Ebodio Ponse was, in fact, the primary driver of the Celebrity. At each policy renewal, the Moraleses affirmed that the conditions existing when the policy was first issued were still true, including that Raymond and Miriam Morales were the only drivers of the insured vehicles. The premiums and the acceptance of the risk were based upon this information.

In my view, these representations were false and material; they changed the nature, extent, or character of the risk. Even when an applicant acts in good faith, not knowing that a representation is untrue, such misrepresentations void a policy. Bourne v. Balboa Ins. Co., 144 Ga. App. 55, 56 (240 SE2d 261) (1977). Here, it is undisputed that had the Moraleses informed Atlanta Casualty that Ponse was driving the Celebrity, the insurer would not have issued the policy. David Boyd, Atlanta Casualty’s Manager of Policyholder Services, stated in his affidavit that Atlanta Casualty did not issue policies of insurance to any person who would make the car available to users not holding a valid driver’s license, and that Morales’s failure to inform Atlanta Casualty that Ponse was driving the car “substantially increased Atlanta Casualty Company’s risk and exposure.” Boyd stated that an unlicensed driver with Ponse’s history of moving violations and alcohol violations would be “an uninsurable risk.” In fact, the policy itself states that any “omissions, concealment of facts or incorrect statements contained in the application” or in a notification of change “that are fraudulent or materially affect the acceptance or rating of this risk by us, shall prevent recovery under this policy.”

It is clear to me that Atlanta Casualty had sufficient grounds to contest the claim. But it maintains that it did not know until the present action was filed and the depositions of the Ponses were taken that those grounds existed. If that is true, I can see no reason for its failure to defend Ponse unless it did not have proper notice that he had been served. Because a jury must decide that question, I agree that summary judgment in favor of either party was not appropriate.

Decided March 29, 2002

Robert H. Benfield, Jr., for appellant.

Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Daniel S. Wright, for appellee.

I am authorized to state that Judge Phipps joins in this special concurrence.

        Bourne is physical precedent only but has been cited without reservation. See, e.g., Miller v. Nationwide Ins. Co., 202 Ga. App. 737 (415 SE2d 700) (1992).


author: Phipps, Judge. Barnes, Judge,

text:
    A01A2219.
    MIDDLETON v. THE STATE.
    (563 SE2d 543)
   Phipps, Judge.

Glen Middleton appeals his conviction for burglary. He contends the trial court erred by allowing him to proceed to trial without counsel and without assuring that he made a voluntary, knowing, and intelligent waiver of his right to counsel. We agree and reverse.

1. The constitution guarantees the right to counsel to an accused in any prosecution that could result in imprisonment. Although the accused may waive this right, the waiver is valid only if it is made with an understanding of (1) the nature of the charges, (2) any statutory lesser included offenses, (3) the range of allowable punishments for the charges, (4) possible defenses to the charges, (5) circumstances in mitigation thereof, and (6) all other facts essential to a broad understanding of the matter. To determine whether an accused has knowingly and intelligently waived counsel, a trial judge “must investigate as long and as thoroughly as the circumstances of the case before him demand.” Each case must be determined on its own unique facts and circumstances.

In Clarke v. Zant, our Supreme Court held that “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” The trial court need not use any “magic words” to determine whether a waiver of counsel is valid, as long as the facts and circumstances of the case show that the defendant has been given sufficient information and guidance to make a knowing and intelligent decision whether to proceed pro se. The State has the burden of demonstrating from the record that the defendant received such information and guidance.

The State has not met its burden in this case. Although the trial court told the jury at one point that it had “questioned Mr. Middleton at length and [was] satisfied that he knows what he’s doing and that he’s capable of conducting his defense the best he can,” nothing in the record shows that the trial court — or anyone else — ever warned Middleton about the dangers of proceeding pro se or explained to him the nature of the charges against him, the potential penalties he faced, and possible defenses or mitigating circumstances. Likewise, aside from the court’s comments to the jury, the record contains no findings from the court that Middleton’s waiver of counsel was knowing, informed, and intelligent.

The State relies on Brooks v. State, in which we found that a defendant had validly waived counsel even though the record did not show that the trial court had warned him of the dangers of proceeding pro se or found his waiver to be valid. We reached this conclusion because the record showed that (1) the prosecutor had reviewed with the defendant a pretrial waiver form explaining his right to counsel and the dangers of proceeding pro se; (2) the defendant was familiar with the legal system and legal representation as a result of his three prior criminal convictions; and (3) the defendant had stand-by counsel who assisted him at least through jury selection. Although the facts of this case bear some superficial similarity to those of Brooks, the record is not sufficient to establish that Middleton appreciated the nature of the charges and knew the allowable punishments, the lesser included offenses, the possible defenses to the charges, and circumstances in mitigation.

First, although the trial transcript shows that Middleton had several prior convictions for various crimes, the record does not show whether he pled guilty or whether those convictions followed jury trials. Therefore, even if we were to credit Middleton with experience in criminal procedure because of those convictions, we cannot ascertain from this record whether the experience was helpful within the context of the six factors listed in Rutledge.

Second, the pretrial waiver form given to the defendant in Brooks was related to the waiver of counsel at a guilty plea and included some of the warnings and advice relevant to a waiver of defense counsel at trial. Here, the State relies on a waiver form used by the police to advise people in custody of their Miranda rights and secure a waiver of those rights before taking a statement. The information and advice in that form differ completely from the warnings and advice given to an accused before he can validly waive his right to counsel at trial. In fact, the only mention of court in the Miranda rights warning form states that any statement made may be used against Middleton in court and that if he could not afford a lawyer the court would appoint one for him. This rights warning form does not contain the warnings and advice necessary to inform a defendant who contemplates representing himself at trial of the nature of the charges, the lesser included offenses, the punishments allowed, the possible defenses, the mitigating circumstances, or any other matters necessary to a broad understanding of the case.

Third, although an attorney was appointed to advise Middleton at trial, it is apparent from the record that the attorney’s role was minimal and limited largely to such mechanical functions as introducing photographs into evidence and swearing Middleton’s sole defense witness.

The circumstances of this case differ from those in Brooks and do not require the same result. Because the record here does not demonstrate a voluntary, knowing, and intelligent waiver of Middleton’s right to counsel, the trial court erred by allowing Middleton to proceed to trial without counsel. Because Brooks is distinguishable on its facts, this case does not present an opportunity to consider, as the special concurrence suggests, whether Brooks should be overruled.

2. We next consider whether Middleton was harmed by the trial court’s error. To establish harmless error, the State has the burden of showing beyond a reasonable doubt that the error did not contribute to the verdict.

The State argues that the error was harmless because the evidence against Middleton was strong. But strong evidence of guilt does not mean that the trial court’s failure to establish a valid waiver of counsel was harmless error. We have repeatedly found that such error was not harmless where the record showed that the defendant did not mount, an able defense — even though the evidence of guilt was ample.

The State’s evidence against Middleton consisted of Middleton’s statement to the police that Daniel Littlejohn approached him about assisting in a burglary, drove him to a mobile home, and pried open the door with a tire iron, after which both men carried various items out of the home. The State also presented the testimony of Littlejohn, who admitted to planning and being the principal actor in the burglary, but stated that Middleton also participated actively.

Middleton failed to present any coherent defense to this evidence. He apparently saw the self-incriminating statement for the first time only moments before trial, and despite his contentions that he had made the statement while “under the influence” and only because the police had misled him, he did not object that it was not voluntary. During his cross-examination of Littlejohn, Middleton apparently referred to Littlejohn’s statement to the police, but he never tried to admit the statement into evidence or show its significance. Thus, the cross-examination was confusing and ineffective. Middleton did argue in closing that he merely helped Littlejohn sell a television after the burglary took place. But, as the trial court plainly instructed the jury, and as any attorney would have known, closing arguments are not evidence. Middleton neither took the stand in his own defense nor offered any other evidence that might have supported his apparent “accessory after the fact” defense.

With the assistance of an attorney, Middleton might have conducted competent cross-examinations or presented evidence to support a defense. Or, if no such evidence could be found, an attorney might have recommended that Middleton plead guilty in exchange for a lesser sentence. The very fact that the evidence against Middleton was strong shows that counsel was needed and makes the court’s failure to advise Middleton on the record of his right to counsel that much more harmful. Of course after being properly advised on the record Middleton might have elected to make a valid waiver of counsel, but we cannot know.

Not only did Middleton fail to present any meaningful evidence in defense, but the trial court failed to give any jury charges that might have explained his defense. The trial court instructed the jury on mere presence at the scene, but that was not Middleton’s theory of defense. His defense, at least as it appears from his closing argument, was that he was not at the mobile home but only helped Little-john sell the spoils later — that he was an accessory after the fact, not a party to the crime. While the trial court instructed the jury on party to a crime, the court did not tell the jury that a person cannot be both a party to the crime and an accessory after the fact — a charge that could have been crucial to Middleton’s defense. Although Middleton failed either to show that he requested such a charge or to present evidence to support it, his failure is easily attributable to his lack of counsel. In any event, the absence of a jury charge that would have explained the legal basis for Middleton’s defense compounded the harm he suffered.

Other instructions by the trial court further magnified the error. Although the trial court failed to establish on the record that Middleton had sufficient information to intelligently waive counsel, the court repeatedly told the jury that Middleton was embarking on a hazardous venture by proceeding pro se. For example, the court said that it had “forewarned” Middleton of the dangers of proceeding pro se; that it was “very skeptical” of self-representation; that it is “not always a good practice” to proceed pro se; that Middleton was acting “against the court’s advice”; that it was “very difficult for a lay person to come into a courtroom and defend themselves”; and that self-representation was like “going into the operating room in a hospital and not knowing whether the folks in there are doctors . . . you take a chance.” The court also told the jury that it was not the court’s fault if Middleton did not “know the evidence” and did not “know how to conduct the trial of the case.” And in its final charge, the court reminded the jury that it had “advised [Middleton] not to go to trial without benefit of counsel.” By harping on the perils Middleton faced, the trial court planted a seed in the jurors’ minds that he would not be able to defend himself adequately — which is precisely what happened.

Unfortunately, Middleton did not object to any of these prejudicial comments by the court, no doubt because he was unaware of their impropriety or of his opportunity to object. If the trial court had instructed Middleton on the record of the ramifications of proceeding pro se as thoroughly as it instructed the jury on what it thought was Middleton’s folly, Middleton would have had the information he needed to make a valid, informed decision whether to proceed pro se.

Decided March 29, 2002.

Robert M. Goldberg, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Finally, in its charge on parties to a crime, the court told the jury that “obviously . . . Mr. Littlejohn is an accomplice.” Middleton, without benefit of counsel, did not object to this statement, which further undermined — indeed, directly contradicted — his defense.

The record clearly shows that Middleton was unable, without counsel, to present any competent defense and that the trial court’s repeated improper comments, not objected to by Middleton, contributed to this inability. The State did not carry its burden of showing that the trial court’s error was harmless beyond a reasonable doubt. Because we cannot conclude that Middleton’s conviction was “independent of his decision to represent himself,” we reverse the judgment of the trial court and remand for a new trial.

3. Because we reverse the conviction and remand for a new trial, we need not address Middleton’s remaining enumerations of error.

Judgment reversed.

Blackburn, C. J., Pope, P. J., Smith, P. J., Miller and Mikell, JJ., concur. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

Although I concur fully in Divisions 2 and 3 of the majority opinion and with most of the analysis in Division 1,1 cannot concur fully in that Division because I believe reaching the result achieved by the majority requires overruling Brooks v. State, 243 Ga. App. 246 (532 SE2d 763) (2000). See id. at 253-258 (Barnes, J., dissenting).

        Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975).

        Rutledge v. State, 224 Ga. App. 666, 669 (3) (482 SE2d 403) (1997).

       (Citations and punctuation omitted.) Id.

       Id.

       247 Ga. 194 (275 SE2d 49) (1981).

       Id. at 197.

       See, e.g., Simpson v. State, 238 Ga. App. 109, 112 (1) (517 SE2d 830) (1999); Rutledge, supra at 670.

        Hamilton v. State, 233 Ga. App. 463, 467 (1) (b) (504 SE2d 236) (1998).

       243 Ga. App. 246, 248 (1) (532 SE2d 763) (2000).

       Id. at 249.

       Id.

       See Rutledge, supra at 669-670.

       See Eiland v. State, 246 Ga. 112, 116 (2) (268 SE2d 922) (1980); State v. Hightower, 236 Ga. 58, 60 (222 SE2d 333) (1976).

       See Raines v. State, 242 Ga. App. 727, 730 (1) (531 SE2d 158) (2000) (reversal required where, despite “substantial” evidence of guilt, transcript “reflects Raines’ inexperience in legal matters”); Braswell v. State, 240 Ga. App. 510, 511 (1) (523 SE2d 904) (1999) (no harmless error where transcript showed that defendant’s “efforts at defending herself were minimal and misguided,” even though State’s evidence was “strong”); Heard v. State, 236 Ga. App. 625, 626-627 (513 SE2d 35) (1999) (physical precedent only); Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996) (although evidence against defendant was “ample,” error was harmful because record showed defendant was “confused, disorganized, and ill-equipped for handling the case”).

       The only evidence that came out on cross-examination that was even minimally helpful to Middleton was that Littlejohn testified at trial that the car they drove to the mobile home was burgundy, but Littlejohn had told the police that the car was blue.

       Middleton was sentenced to ten years in prison, while Littlejohn was sentenced to seven years.

       (Citation and punctuation omitted.) Raines, supra.

       See Braswell, supra at 511 (2).


author: Barnes, Judge. Eldridge, Judge,

text:
    A01A2268.
    CARLTON v. THE STATE.
    (563 SE2d 521)
   Barnes, Judge.

Thomas Carlton, a federal prisoner, filed a pro se motion under the Interstate Agreement on Detainers (“IAD”) to dismiss “all actions, indictments, informations, and complaints” against him after Walker County lodged a detainer against him with the Federal Bureau of Prisons based on a warrant for his arrest.

The record contains an arrest warrant, based upon an affidavit and signed by a magistrate, for violation of the Georgia Controlled Substances Act for possession of methamphetamine. The warrant was forwarded to the original federal correctional facility having custody of Carlton by letter from the Walker County Sheriffs Office and signed by the warrant officer. After reciting information about Carlton, the letter stated:

Enclosed is a certified copy on an arrest warrant on file at the WALKER COUNTY SHERIFF’S DEPARTMENT, LAFAYETTE, GA. Please accept this letter and copy of the warrant as a detainer on the above named subject. Please advise when this subject is ready to be released from your facility. We will pick up subject.

In response to the detainer letter, Carlton made a request for final disposition of the “indictments, informations, or complaints” now pending against him. A federal correctional official forwarded Carlton’s demand by letter to the district attorney, sent certified mail. The copy of the letter in the record shows it was sent to the clerk of the superior court, and the first page of the letter shows it was filed on October 6, 1998.

When Carlton’s request for disposition of the charges was not acted upon in the time required, he moved for dismissal of the charges under the IAD. No response to this motion is in the record on appeal. Nevertheless, the trial court denied the motion to dismiss solely because the IAD “does not apply to cases only in the warrant stage, but requires a formal charging instrument, i.e., indictment or its equivalent.” According to the record on appeal, no issue concerning service of Carlton’s request for disposition was raised below or ruled on by the trial court. After his motion for an out-of-time appeal was granted, Carlton filed this appeal.

Because a detainer based on a warrant for pending criminal charges triggers the protections of the IAD, we reverse. Further, because our opinion in Newt v. State, 190 Ga. App. 301 (379 SE2d 11) (1989), conflicts with the Supreme Court’s interpretation of the IAD Act in Suggs v. Hopper, 234 Ga. 242, 243 (215 SE2d 246) (1975), that the IAD does not apply to post-conviction arrest warrants for probation violations, we must overrule Newt.

1. Procedurally, no issue regarding the service of Carlton’s IAD request is properly before us. No issue was raised or ruled on in the trial court about the method Carlton used to forward his request for disposition of the charges against him, and the State’s brief on appeal does not even mention the possibility of this issue. Instead, the trial court denied Carlton’s motion to dismiss only because it found that the IAD did not apply to cases at the warrant stage. When this case is returned upon remittitur, the State may raise any appropriate procedural defenses at that time. We should not rule on this issue now because it has not been addressed by the parties or ruled on by the trial court.

2. The IAD “creates uniform procedures for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime.” Alabama v. Bozeman, 533 U. S. 146, 148 (121 SC 2079, 150 LE2d 188) (2001).

Because outstanding charges against a prisoner “produce uncertainties which obstruct programs of prisoner treatment and rehabilitation,” the purpose of the IAD is “to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, infor-mations or complaints. . . .” OCGA § 42-6-20 (Art. I). Further, it “shall be liberally construed so as to effectuate its purposes.” OCGA § 42-6-20 (Art. IX).

If the prisoner fulfills the notice requirements of the IAD, and the receiving state fails to bring the prisoner to trial within 180 days, the court in the receiving state must dismiss the “indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner.” OCGA § 42-6-20 (Art. Ill (a), (d)).

In this case, the issue is whether a detainer based on an arrest warrant for a violation of the Georgia Controlled Substances Act constitutes a detainer that invokes the provisions of the IAD.

In United States v. Ford, 550 F2d 732 (2nd Cir. 1977), federal prosecutors lodged a warrant for bank robbery with state authorities as a detainer against the defendant and then sought to compel his presence with a writ of habeas corpus ad prosequendum. The court noted that warrants were “commonly used as detainers,” and that the government conceded that the defendant was subject to a detainer. Id. at 736, n. 5.

In considering the Second Circuit’s holding, the U. S. Supreme Court subsequently noted that “[t]he Agreement itself contains no definition of the word ‘detainer.’ The House and Senate Reports, however, explain that ‘(a) detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.’ [Cits.]” United States v. Mauro, 436 U. S. 340, 359 (IV) (B) (98 SC 1834, 56 LE2d 329) (1978). “Once the Federal Government lodges a detainer against a prisoner with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions.” Id. at 361-362 (V).

Further, the drafters of the IAD intended “detainers” to include warrants. The Ohio Court of Appeals, in holding that a faxed letter accompanied by complaints and arrest warrants constituted a detainer, noted that, “The council on state governments, which drafted the IAD, defined a ‘detainer’ as a ‘warrant filed against a person already in custody with the purpose of insuring that he will be available to the authority which has placed the detainer.’ ” State v. Wells, 94 Ohio App.3d 48, 53 (640 NE2d 217) (1994).

In this case, Walker County used an arrest warrant to lodge a detainer against Carlton, notifying the Federal Bureau of Prisons that Carlton is wanted to face pending criminal charges in Walker County. A sheriff swore under oath that Carlton committed a criminal offense by violating the Georgia Controlled Substances Act, and a magistrate then issued a warrant commanding the arrest of Carlton. The warrant specified that Carlton was “charged by the prosecutor” with the offense against the laws of this State as set out in the sheriff’s affidavit. (Emphasis supplied.)

Article I of the IAD explains that it is intended to apply to both “charges outstanding against a prisoner” and “detainers based on untried indictments, informations or complaints.” OCGA § 42-6-20 (Art. I). Clearly a charge was pending against Carlton. Further, although “complaint” is not a term commonly used in the criminal justice system in Georgia, “complaint” is defined in Black’s Law Dictionary (6th ed.), as

a charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specified offense, with an offer to prove the fact, to the end that a prosecution may be instituted. The complaint can be “taken out” by the victim, a police officer, the district attorney, or other interested party. Although the complaint charges an offense, an indictment or information may be the formal charging document. The complaint is a written statement of the essential facts constituting the offense charged. In the federal courts, it is to be made upon oath before a magistrate. Fed. R. Crim. R 3. If it appears from the complaint that probable cause exists that the person named in the complaint committed the alleged crime, a warrant (q.v.) for his arrest will be issued. Fed. R. Crim. P. 4.

In this state, arrest warrants are issued by judges based on their own knowledge or based on information given them under oath (OCGA § 17-4-40), and the contents required in affidavits requesting arrest warrants are stated in OCGA § 17-4-41. Therefore, as a Georgia arrest warrant meets all the criteria of a complaint as defined in Black’s, we find that a Georgia arrest warrant is the functional equivalent of a “complaint” for purposes of the IAD.

As the U. S. Supreme Court acknowledged in United States v. Mauro, supra, 436 U. S. at 361-362, a detainer lodged against a prisoner based on a warrant invokes the IAD. The decision in Carchman v. Nash, 473 U. S. 716 (105 SC 3401, 87 LE2d 516) (1985), does not require a different result. In Carchman, the U. S. Supreme Court considered whether a detainer based on probation violation charges triggered the application of the IAD and concluded that the phrase “untried indictment, information or complaint” in the IAD refers to criminal charges pending against a prisoner. Id. at 725 (III) (A). “A probation-violation charge, which does not accuse an individual with having committed a criminal offense in the sense of initiating a prosecution, thus does not come within the terms” of the IAD and “does not result in the probationer’s being ‘prosecuted’ or “brought to trial’ for that offense.” Id.

Instead, the probation-violation charge results in a probation-revocation hearing, a proceeding to determine whether the conditions of probation should be modified or the probationer should be resentenced, at which the probationer is entitled to less than the full panoply of due process rights accorded a defendant at a criminal trial.

Id. at 725-726 (III) (A).

Presaging the U. S. Supreme Court’s 1985 decision in Carchman, the Supreme Court of Georgia also held in 1975 that arrest warrants for probation violations do not invoke the provisions of the IAD.

The purpose of the [IAD] is to insure speedy trial on pending charges before staleness and difficulty of proof set in. These are pre-trial, and not sentencing, considerations. Suggs’ petition is without merit because the statute by its terms relates only to an “untried indictment, information or complaint,” and does not apply to warrants for arrest for probation violation.

Suggs v. Hopper, supra, 234 Ga. at 243. Even though the ultimate holding in Suggs v. Hopper was that the IAD did not apply to arrest warrants for probation violations, the analysis is not based on the fact that the detainer was for a warrant. The lesson of Suggs v. Hopper is that the IAD applies to detainers holding a prisoner for trial for untried charges.

In Newt v. State, supra, 190 Ga. App. at 301, quoting Suggs v. Hopper, however, we held that the IAD does not apply to detainers based on any warrants for arrest. Because Newt conflicts with the U. S. Supreme Court’s interpretation that detainers include arrest warrants and overextends the analysis in Suggs, we must overrule it.

Judgment reversed.

Pope, P. J, Andrews, P. J, Johnson, P. J, Smith, P. J, Miller, Ellington, Phipps and Mikell, Jd, concur. Blackburn, C. J., and Eldridge, J., dissent. Ruffin, J., concurs in Division 2 of the dissent only.

Eldridge, Judge,

dissenting.

I respectfully dissent.

1.

According to the clear wording of Article III (a), the right of a prisoner to be tried within 180 days accrues only after the precise operational procedures set forth in the [Interstate Agreement on Detainers] are completely satisfied. It is incumbent upon the prisoner to initiate these procedures, and the Court of Appeals has previously indicated that the notice provisions of Article III (b) must be strictly complied with.

In that regard, Article III (b) states that: “The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate.”

In the instant case, Carlton served the prosecuting official, but he failed to mail his IAD request, certified mail with return receipt requested, to the Walker County Superior Court. The majority claims that “the copy of the letter in the record shows it was sent to the clerk of the superior court, and the first page of the letter shows it was filed on October 6, 1998.” However, the letter sent was a form letter addressed to Herbert E. Franklin, District Attorney, Walker County, and was signed for by the district attorney’s office. On the bottom of the last page of the district attorney’s letter is a form “cc: Clerk of Court” without identification of any clerk of court to which the letter was sent or any indication whatsoever that such was actually done. The record shows no return receipt from the clerk of court, although eight return receipts are in the record for other documents sent certified mail, return receipt requested. In fact, nowhere in the record does Carlton even claim he sent the IAD letter to the clerk of court, although he states in the record six different times that he mailed it to the district attorney. It would appear the letter was sent to the district attorney’s office, which made a copy of the original and filed it with the court clerk. “[T]he plain language of Article III (b) simply does not support [any other] argument, as it requires that notice ‘shall’ be served on the prosecuting officer and court ‘by registered or certified mail, return receipt requested.’ Nowhere does Article III (b) suggest that alternative forms of service will be deemed acceptable.”

The dismissal of a criminal case (or, in this case, not permitting the State to even begin a criminal case) is an extreme sanction which can be invoked only if there has been a strict compliance with the statute. Here, there is no evidence in the record that the IAD request was mailed to the Clerk of Walker County Superior Court, registered mail, return receipt requested, as required under the IAD. “The record in the present case shows that the defendant filed his written request with the district attorney’s office, but he did not file his request with the court or otherwise comply with the remaining requirements of the statute.” Accordingly, the trial court did not err in denying Carlton’s motion to dismiss. A trial court’s judgment, right for any reason, will be affirmed.

2. Carlton based his IAD request on a detainer filed pursuant to an arrest warrant for possession of methamphetamine; no indictment has ever been filed with regard thereto. The plain language of the IAD limits its application to “any untried indictment, information or complaint.” And the Supreme Court of the United States has held that the plain language of the Agreement controls over the “ ‘broader purposes of the legislation.’ ” Further, it is important to recognize, as the majority does not, that “Art. Ill does not apply to all detainers, but only to those based on ‘any untried indictment, information or complaint.’ ” “[T]he phrase ‘untried indictment, information or complaint’ in Art. Ill refers to criminal charges pending against a prisoner.”

In this case, an arrest warrant — with the standard sworn affidavit that accompanies sheriff’s arrest warrants — is not a “pending criminal charge.” At best, it entitles Carlton to a preliminary hearing before a magistrate, which may or may not result in a bind-over, which may or may not result in presentment before a grand jury, which may or may not result in the return of a true bill.

The majority’s reliance on the 1978 case of United States v. Mauro, supra, is. misplaced. Even the most cursory reading shows that Mauro dealt with federal habeas corpus applications and has nothing whatsoever to do with the legal issue before us. In fact, the Mauro Court expressly held that a writ of habeas corpus ad prose-quendum was not a “detainer” under Art. Ill at all, but was a “ ‘written request for temporary custody’ ” within the meaning of the IAD. That Court held that a writ of habeas corpus ad prosequendum was not an “untried indictment, information or complaint.” To then hold, as does the majority, that Mauro “implicitly acknowledged” that a detainer based upon an arrest warrant triggers the IAD under Art. Ill is error.

Apparently recognizing that the plain language of the IAD actually controls, the majority has decided to hold that an arrest warrant is a “complaint”. for purposes of the IAD, so as to fit within the parameters of Article HI of the Agreement. However, even under the majority’s controlling authority for this novel proposition, Black’s Law Dictionary, a “complaint” under Art. Ill is a federal criminal charging tool that is analogous to an accusation here in Georgia, and a misdemeanor trial may commence upon a complaint as it does upon an accusation. Fed. R. Crim. P. 3, 58 (b) (1). As such, a “complaint” is an instrument demonstrating “pending charges.” Upon the filing of a complaint, an arrest warrant may issue, but the warrant is not the complaint, itself. Fed. R. Crim. P. 3, 4. An arrest warrant based on a sheriff’s affidavit — absent indictment, information, or complaint — does not demonstrate “pending charges.”

Decided March 29, 2002

Albert L. Watson III, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher Arnt, Assistant District Attorney, for appellee.

Further, Sixth Amendment rights attach upon the filing of a complaint, as they do upon the filing of other charging instruments. Fed. R. Crim. R 5 (c). Such rights do not, as here, attach upon the mere issuance of an arrest warrant.

In short, there is nothing about an arrest warrant issued on a sheriff’s affidavit that remotely resembles a “complaint” under Art. Ill for purposes of the LAD. I believe it unwise for this Court to import federal charging procedures into Georgia law — with the myriad of constitutional ramifications that come with such procedures — simply to reverse a single case.

As a respected member of this Court, Judge Benham correctly determined in Newt v. State that “the statute [IAD] relates only to an ‘untried indictment, information or complaint,’ and does not apply to warrants for arrest.” So it has been since 1989. The majority’s reliance on the 1978 Mauro case of which this Court was aware at the time Newt was decided provides no legitimate reason for overruling established precedent. Accordingly, the trial court did not err in denying Carlton’s motion to dismiss.

I am authorized to state that Chief Judge Blackburn joins in this dissent and Judge Ruffin joins in Division 2 of this dissent.

       Carlton’s brief supporting his motion stated: “Prisoner has been denied rehabilitation programs and custody level considerations due to Walker Counties [sic] refusal to [bring him to trial on its charges].” He reiterated that reasoning in a letter to the Walker County Sheriff requesting prompt service of the warrant: “This warrant is . . . halting me from programming and continue [sic] to better myself. . . . [A]fter the warrant has been served, it will allow me to enter a different security level and new programs.” The State did not contest these statements.

       In United States v. Mauro, the U. S. Supreme Court considered two cases. In the first case, it held that the prosecutor’s filing of a writ of habeas corpus ad prosequendum did not, by itself, trigger the provisions of the IAD. 436 U. S. at 349. In the second case, it held that when the government lodges a detainer based on an arrest warrant in addition to the writ, the IAD applies. Id. at 361-362.

       Further, in another context, we held that a “letter with the Department of Corrections stating there was an outstanding warrant for the defendant, and the State intended to prosecute, substantially complied with the codal definition of a ‘detainer.’ OCGA § 42-6-1.” Riley v. State, 180 Ga. App. 409, 412 (3) (349 SE2d 274) (1986) (physical precedent only).

       (Footnotes omitted.) Clater v. State, 266 Ga. 511, 512-513 (3) (467 SE2d 537) (1996).

       (Emphasis in original.) Id. at 513 (3).

        Johnson v. State, 154 Ga. App. 512, 513 (268 SE2d 782) (1980).

        State v. Sims, 248 Ga. App. 277, 278 (546 SE2d 47) (2001).

       OCGA § 42-6-20, Art. Ill (a), Ga. L. 1972, p. 938, § 1; Ga. L. 2000, p. 1589, § 3.

        Carchman v. Nash, 473 U. S. 716, 723 (II), 729 (III) (C) (105 SC 3401, 87 LE2d 516) (1985); United States v. Mauro, 436 U. S. 340 (98 SC 1834, 56 LE2d 329) (1978).

       (Footnote omitted.) Carchman v. Nash, supra at 727 (III) (B).

       Id. at 725 (III) (A).

       OCGA § 17-4-41.

        Mauro, supra at 361-362 (IV) (B), (V) (“We therefore conclude that a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Agreement.”).

       Id. at 357.

        United States v. Marion, 404 U. S. 307, 321-322 (92 SC 455, 30 LE2d 468) (1971); accord Haisman v. State, 242 Ga. 896, 897 (2) (252 SE2d 397) (1979).

       Id.

       190 Ga. App. 301 (379 SE2d 11) (1989).

       (Punctuation omitted.) Id. Accord United States v. Bottoms, 755 F2d 1349 (9th Cir. 1985); Crawford v. State, 669 NE2d 141, 148 (Ind. 1996); Taylor v. State, 582 S2d 152 (Fla. 1991); Locklear v. Commonwealth, 7 Va. App. 659 (376 SE2d 793) (1989); Blakey v. State, 232 Mont. 178 (755 P2d 1380) (1988).