text:
    A90A0908.
    SECURITY TRUST FEDERAL SAVINGS & LOAN ASSOCIATION v. GILL SAVINGS ASSOCIATION et al.
    (398 SE2d 382)
   McMurray, Presiding Judge.

On January 11,1985, Commerce Federal Savings Bank (appellant Security Trust Federal Savings & Loan Association’s predecessor), hereinafter referred to as “Commerce,” loaned a borrower (which ultimately became known as Sun Oaks, Ltd.) referred to hereinafter as “borrower,” $1,000,000 to acquire and develop certain property. Commerce obtained a deed to secure debt covering the property from the borrower. Subsequently, on December 20, 1985, Commerce entered into a conversion agreement with the borrower to convert the acquisition and development loan to a five-year loan. In pertinent part, the conversion agreement provided as follows:

“8. Subordination. It is further acknowledged and understood by the parties hereto that [Commerce] has agreed to subordinate the aforesaid Deed to Secure Debt held by [Commerce] to the lien of a certain other security deed or security deeds, securing payment of a construction and/or permanent loan or loans with regard to [the property]. [Commerce’s] said agreement to subordinate its Deed to Secure Debt is hereby modified to provide that [Commerce] shall be obligated to do so only for so long as the total outstanding indebtedness owing to all lenders (including principal, interest and all other charges due or to become due), payment of which is secured by liens or security deeds upon the subject real property hereinbefore described, does not exceed ninety-five percent (95%) of the then-current appraised value of said real property; provided, however, that in no event shall [Commerce] be required to subordinate its Deed to Secure Debt to any indebtedness having a principal amount in excess of the lesser of (i) $6,730,000.00 or (ii) eighty-three percent (83%) of the then-current combined appraised value of the aforesaid real property and all improvements then located thereon. Should the aggregate of all loans secured by liens or security deeds on the subject real property at any time exceed ninety-five percent (95%) of the then-current appraised value of said real property, then and in that event, upon demand by [Commerce], Borrower shall immediately pay over to [Commerce], to be applied to payment of the then-outstanding principal balance of the [loan], an amount sufficient to reduce the aggregate of all such loans to an amount less than ninety-five percent (95%) of the then-appraised value of the subject land and improvements. [Commerce] or Borrower shall have the right, at any time and from time to time, at Borrower’s expense, to have the aforesaid real property reappraised by a qualified appraiser reasonably acceptable to [Commerce] and Borrower in order to determine whether the aforesaid eighty-three percent (83%) and/or ninety-five percent (95%) limitations are being violated. . . .
“11. Subordination fee. It is understood and agreed that . . . upon subordination of [Commerce’s] Deed to Secure Debt, Borrower [will] pay to [Commerce], in cash, a subordination fee in the amount of Seventy Thousand and No/100 ($70,000.00) Dollars, as consideration to [Commerce] for its subordination of its Deed to Secure Debt, which subordination fee shall be deemed fully earned by [Commerce] as of the date of such subordination and shall be non-refundable, in whole or in part.”

Thereafter, on December 30, 1985, Gill Savings Association (“Gill”) loaned $6,730,000 to the borrower for the construction of apartments on the property: At the same time, Gill entered into a subordination agreement with Commerce. In pertinent part, it recited:

“WHEREAS, pursuant and subject to the terms and provisions of a certain Agreement for Conversion of Acquisition and Development Loan (the ‘Conversion Agreement’), dated December 20, 1985, Commerce has agreed to subordinate the lien of the Commerce Deed to Secure Debt to the lien or liens of the deed or deeds to secure debt to be taken by Gill . . . and
“WHEREAS, pursuant to the provisions of the aforesaid Conversion Agreement, Commerce now desires to make and enter into this Agreement will Gill; and
“WHEREAS, in consideration of the benefits to be conferred upon the Project and the benefits to thus be indirectly realized by Gill as a result of the execution by Commerce of the Conversion Agreement, Gill likewise desires to make and enter into this Agreement;
“NOW, THEREFORE, for and in consideration of the mutual benefits to be derived herefrom and for other good and valuable considerations . . . the parties hereto do hereby agree as follows:
“1. The recitals hereinbefore set forth are incorporated herein by reference and made a part hereof as fully as though repeated herein verbatim.
“2. Commerce hereby subordinates the lien of the Commerce Deed to Secure Debt to the lien or liens of the Gill Deeds to Secure Debt.
“3. For and in consideration of the subordination by Commerce of the lien of the Commerce Deed to Secure Debt to the lien of the Gill Deeds to Secure Debt . . . Gill hereby agrees with Commerce that ... in the event of any default under [Gill’s loans to borrower] . . . Gill shall refrain from taking any action against Borrower . . . unless and until Gill shall have first given to Commerce at least ten (10) days’ prior written notice of any such default which shall be monetary in nature and/or thirty (30) days’ prior written notice of any such default which shall be non-monetary in nature, during which respective periods, Commerce shall have full right, power and authority (but not the obligation) to cure any such default. ...”

When the borrower defaulted on the loans of both Commerce and Gill, the lenders foreclosed. Each lender claimed its deed to secure debt was in a priority position.

Following a hearing, the trial court enjoined each foreclosure proceeding and, thereafter, the actions were consolidated. The parties agreed that Gill would take over the property and that, in the event Commerce prevailed at trial, it would take a monetary judgment for the debt secured by its deed to secure debt.

The case was tried by the court sitting without a jury. The parties stipulated that the debt to value ratios set out in the conversion agreement were not exceeded at the time Commerce subordinated its loan but that the ratios were exceeded at the time the parties foreclosed.

The only issue to be decided by the trial court was whether the subordination of Commerce’s deed to secure debt was conditional or unconditional. The trial court determined that the subordination agreement was ambiguous inasmuch as its unconditional language was in conflict with the conditional language set forth in the conversion agreement. Looking to the circumstances surrounding the transaction and the testimony of various witnesses, the trial court concluded that the parties intended to make the subordination agreement unconditional and Security Trust Federal Savings & Loan Association appeals. Held:

We agree with the trial court that the subordination agreement is unconditional. We reach our conclusion, however, upon different reasoning.

Decided September 27, 1990

Rehearing denied October 12, 1990

Alston & Bird, Ben F. Johnson III, Donna P. Bergeson, for appellant.

Bondurant, Mixson & Elmore, M. Jerome Elmore, Dirk G. Christensen, for appellees.

In our view, the subordination agreement stands alone. Although it refers to the conversion agreement in the recitals, the reference simply explains Commerce’s willingness to subordinate its deed to secure debt. Having promised the borrower that it would subordinate its deed to secure debt if certain conditions were present, Commerce, acting “pursuant and subject to” the conversion agreement, was fulfilling its obligation in that regard.

Significantly, the subordination agreement does not at any point incorporate the terms of the conversion agreement. We do not construe the incorporation of the recitals (in Paragraph 1 of the subordination agreement) as an incorporation of the conversion agreement itself.

Thus, we find no ambiguity in the subordination agreement. The subordination agreement provides for the subordination of Commerce’s deed to secure debt. It does no more.

“ ‘Where a written contract is plain and unambiguous, it is the only evidence of what the parties intended and understood by it.’ [Cits.]” Rauschenberg v. Peeples, 30 Ga. App. 384 (2) (118 SE 409). That Commerce may have entered into a contract with the borrower for a conditional subordination does not change the fact that, when it contracted with Gill, Commerce intended to subordinate its deed to secure debt unconditionally.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A1491.
    ABBOTT v. GILL et al.
    (398 SE2d 225)
   Banke, Presiding Judge.

The appellees brought this action against the appellant and several other defendants seeking to recover for injuries allegedly sustained as the result of the contamination of a water system serving their residential subdivision. The water system was owned by the Pine Forest Utility Corporation. In 1983, that corporation had entered into a written contract with the appellant under which he agreed, for a fee, to assume responsibility for the operation and maintenance of the system. That agreement was denominated a trust agreement and purported to transfer possession and control of the water system to the appellant as “trustee” of the purported trust. For this reason, the appellees had originally sued the appellant in his capacity as “as trustee for Pine Forest Utility Corporation. ...” However, in an earlier appearance of the case before this court, we concluded that the 1983 agreement did not have the legal effect of creating a trust but was simply a contract pursuant to which the appellant assumed personal responsibility for the operation and maintenance of the water system. Accordingly, we held that “any viable claim against [him] must be predicated upon his assumption of the operation and maintenance of the Corporation’s water system, and not upon his asserted capacity as . . . trustee.” Smith v. Hawks, 182 Ga. App. 379, 385 (5) (355 SE2d 669) (1987).

Upon the return of the case to the trial court, the appellees filed an amended complaint deleting all references to the appellant as trustee and seeking instead to hold him liable as an individual, based on the same alleged acts of negligence on which their original claim against him had been predicated. The appellant filed a motion to strike or dismiss this amended complaint on the ground that it sought to add a new defendant without permission from the court in contravention of OCGA § 9-11-21, as well as because he had not been personally served with it and because the statute of limitation had run on the claim. The trial court denied the motion, and the case is now before us pursuant to our grant of the appellant’s application for an interlocutory appeal from that ruling. Held:

The original designation of the appellant as the trustee of a trust which had assumed responsibility for the operation of the system clearly was mistaken, inasmuch as there was no such trust. Since no trust existed, it necessarily follows that the appellant was not acting on behalf of a trust in operating the water system but was discharging his own personal contractual obligation. The trial court was authorized to conclude under these circumstances that the amended complaint did not seek to add a new party but merely to correct a misnomer in the original description of the appellant.

“ ‘Where the real defendant has been properly served, a plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. (Cits.) Correction of a misnomer involves no substitution of parties and does not add a new and distinct party. (Cit.)’ [Cits.]” Cunningham, Tollman, Pennington, Inc. v. Case-Hoyte Color Printers, 174 Ga. App. 488 (330 SE2d 598) (1985), citing Atlanta Veterans Transp. v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504) (1971). Accordingly, the court did not err in denying the appellant’s motion to strike or dismiss the recast complaint.

Decided September 27, 1990

Rehearing denied October 12, 1990.

Stanley M. Karsman, Bouhan, Williams & Levy, James M. Thomas, for appellant.

Ashman & Zipperer, Alex L. Zipperer III, Adams, Gardner, Ellis & Inglesby, Brent J. Savage, George L. Lewis, Beckmann & Pinson, Luhr G. Beckmann, Jr., Woodall & McGahee, John T. Woodall, for appellees.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1533.
    BLACKMON v. THE STATE.
    (398 SE2d 229)
   Banke, Presiding Judge.

The appellant was arrested for DUI and was summoned to appear in the Probate Court of Pike County to answer the charge. He moved to dismiss the charge in that court on the ground that “Pike County has at least one city court in Zebulon, Georgia, and a magistrate court of Pike County which would prevent the Probate Court of Pike County from exercising any jurisdiction [over misdemeanor traffic offenses] pursuant to OCGA § 40-13-21.” The probate court judge orally denied the motion, and the appellant filed an appeal to superior court from that ruling. The superior court entered an order disposing of the appeal as follows: “The appeal in this case is . . . dismissed since there is no appealable order of the probate court on record, and, further, if there were, the said alleged grounds of appeal has (sic) no merit.” (Emphasis supplied.) The appellant contends on appeal to this court that the superior court erred in failing to reach the merits of his challenge to the probate court’s jurisdiction, arguing that “[a]t the very least the case should have been remanded with directions to the probate court to enter a written order so that a proper appeal could have been perfected.” Held:

It is apparent from its written order that the superior court did in fact consider the merits of the probate court’s ruling and found no ground for reversing it. As the appellant has presented no argument or citation of authority to this court suggesting that this decision was erroneous, it follows that the present appeal presents nothing for review. In reaching this conclusion, we do not address the state’s contention that the superior court could not, in any event, have entertained jurisdiction of the case inasmuch as the ruling of the probate court did not purport to be a final judgment.

Decided September 27, 1990

Rehearing denied October 12, 1990

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A89A1728.
    DAVIS v. THE STATE.
    (398 SE2d 585)
    Decided October 12, 1990.

      John D. McCord III, T. Stanley Sunderland, for appellant.

      Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Faye S. Pous, Assistant Solicitors, for appellee.
   Pope, Judge.

In Davis v. State, 260 Ga. 338 (393 SE2d 260) (1990) the Supreme Court reversed the judgment of this court in Davis v. State, 194 Ga. App. 833 (392 SE2d 253) (1990). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Beasley and Cooper, JJ., concur.


author: Deen, Presiding Judge.

text:
    A90A1937.
    DEWBERRY et al. v. STATE FARM INSURANCE COMPANY.
    (398 SE2d 266)
   Deen, Presiding Judge.

Sheila Dewberry filed a personal injury action against Rodney Dean Calhoun seeking the recovery of damages for injuries that she sustained when a vehicle driven by Calhoun struck the rear of the automobile which she was driving. Her husband, Mark, joined in the lawsuit, seeking damages for loss of consortium. State Farm Insurance Company (State Farm), the Dewberrys’ uninsured motorist carrier (UMC), was served with a copy of the complaint. It then undertook an active role in the litigation and sought discovery as to the liability limits of Calhoun’s insurance. After State Farm determined that the Dewberry’s UMC coverage limits and the liability limits of Calhoun’s insurance coverage were identical ($25,000 per person, $50,000 per accident), it moved for summary judgment, seeking to be released from the lawsuit. The Dewberrys opposed the motion, relying upon Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988), as authority for their position that once the uninsured motorist carrier is served it is a party to the action regardless of the available limits of the policy. The trial court disagreed and granted State Farm’s motion. The Dewberrys appeal. Held:

Under OCGA § 33-7-11 (b) (1) (D), a plaintiff cannot recover under the uninsured motorist provisions of his or her automobile insurance policy if the defendant has liability insurance equal to the plaintiffs uninsured motorist coverage limits. There is, however, no presumption that a tortfeasor is an uninsured motorist. Hartford Acc. & Indem. Co. v. Studebaker, 139 Ga. App. 386, 388 (228 SE2d 322) (1976). In the instant case there was no evidence presented to the trial court to indicate that the defendant’s vehicle was uninsured within the meaning of the Code, or that his insurance carrier was either insolvent or denying coverage. Indeed, it is undisputed that State Farm’s discovery revealed that the plaintiffs uninsured motorist coverage was equal to the defendant’s bodily injury and property damage liability limits. As in Yarbrough v. Dickinson, 183 Ga. App. 489 (359 SE2d 235) (1987), the insured met her obligation under OCGA § 33-7-11 (d) to serve timely her UMC at a time when there was a question as to whether the defendant’s vehicle was an uninsured vehicle within the meaning of the Code and prior to the running of the statute of limitation.

The court in Yarbrough granted the UMC’s motion for summary judgment, adding a provision that the order would not affect any future claim by the plaintiff to PIP benefits or other coverage under the policy if it should be later determined that the defendant was uninsured or underinsured. This court held that the insurance carrier could not raise a statute of limitation defense contending lack of notice, as required under OCGA § 33-7-11 (d), to a future claim because it was clearly on notice. The court further found that since the defendant’s vehicle was not uninsured, the plaintiff had “no present cause of action against her UMC and it cannot be compelled to remain in the tort suit.” Id. at 491.

In Bohannon v. Futrell, supra, the court considered a failure, in certain of the cases involved in the litigation, to serve the UMC within the statute of limitation, and held this failure provided a sufficient basis for the trial court to dismiss the UMC from those portions of the various lawsuits involved. In those cases, however, where the UMCs were served within the four-year statute of limitation applicable to the loss of consortium claims, the UMCs should not have been dismissed for noncompliance with the notice provisions of OCGA § 33-7-11 (d). The court in Bohannon also found that the holding in Yarbrough did not demand a different result: “Even if a timely-served UMC is awarded summary judgment on the ground that there is no uninsured motorist involved . . . that UMC has been given OCGA § 33-7-11 (d) notice which would also serve as a basis for permitting the relation back under OCGA § 9-11-15 (c) of a complaint subsequently filed if and when the tortfeasor became an uninsured motorist.” Bohannon, supra at 343. We therefore find that the plaintiffs in the instant case preserved their rights to reinstate their claim against the UMC if and when the defendant is found to be uninsured or underinsured because they served timely notice of their claim upon their UMC.

Decided October 12, 1990.

Van Gerpen, Shigley & Hoffman, Earl J. Van Gerpen, George L. Parson, for appellants.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, J. Calhoun Harris, Jr., for appellee.

As summary judgment was demanded as a matter of law, we affirm the lower court’s decision.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    A90A0861.
    A90A0862.
    KNIGHT v. THE STATE. WATSON v. THE STATE.
    (398 SE2d 202)
   Carley, Chief Judge.

The relevant facts in these companion appeals are as follows: In the September 1988 term of court, appellants were indicted separately for the offense of trafficking in cocaine. During that term of court, appellants filed and served demands for speedy trial pursuant to OCGA § 17-7-170. In the next succeeding March 1989 term of court, appellants were reindicted jointly for the offense of trafficking in cocaine and the original indictments were nolle prossed.' On June 14, 1989, which was in the March 1989 term of court, the trial court entered an order “sending [the] case to trial calendar.” However, appellants’ counsel was thereafter granted a leave of absence and appellants were not brought to trial on the joint indictment until the September 1989 term of court. The case was tried before a jury and verdicts of guilty were returned. The trial court entered judgments of conviction and sentences on the jury’s verdicts and appellants filed separate notices of appeal but similar enumerations of error. The two cases are hereby consolidated for appellate disposition in this single opinion.

1. Appellants filed pleas in bar alleging the State’s failure to have complied with their demands for speedy trial. The trial court’s denial of those pleas is enumerated as error.

Citing Hurt v. State, 62 Ga. App. 878 (2) (10 SE2d 136) (1940), appellants urge that their pleas in bar should have been granted because the original indictments that were returned in the September 1988 term of court were subsequently nolle prossed in the March 1989 term. Appellants’ reliance upon Hurt is misplaced. That decision does not stand for the proposition that a defendant who has filed a demand for a speedy trial in one term of court is automatically acquitted if the indictment is thereafter nolle prossed in the next succeeding term. Hurt merely holds that a subsequent nolle prosequi of an indictment does not otherwise obviate compliance by the State with the defendant’s original demand that he be brought to trial on the underlying criminal charge no later than the next succeeding term of court. “The entry of an order of nolle prosequi in a case does not prevent a defendant as a matter of law from claiming the benefits of OCGA § 17-7-170. [Cit.]” Ciprotti v. State, 187 Ga. App. 61, 63 (2) (369 SE2d 337) (1988). It is the State’s failure to try a defendant pursuant to his original demand for a speedy trial, not the subsequent entry of a nolle prosequi, that results in an automatic acquittal. It does not “matter that a demand for trial had been entered on the [subsequently nolle prossed] first indictment, provided [the defendant] was tried on it or on [a] new indictment, charging the same offense, at the term when the demand was made, or at the next succeeding term.” Jackson v. State, 76 Ga. 551 (2) (1886). Accordingly, the only benefit that appellants can possibly derive from the subsequent nolle prosequi of the original indictments in the March 1989 term of court is that the State may not rely upon that subsequent nolle prosequi to justify its failure to have tried them for trafficking in cocaine no later than the end of that March 1989 term. Hurt v. State, supra.

In denying appellants’ pleas in bar, the trial court did not erroneously hold that the State’s nolle prosequi of the original indictments authorized the delay of appellants’ trial until the September 1989 term of court. The trial court based its ruling on the finding that the leave of absence that had been requested by and granted to appellants’ attorney after June 14, 1989, had the effect of preventing the trial from thereafter being conducted during the remainder of the March 1989 term of court and evidenced appellants’ consent that the trial be continued until the ensuing September 1989 term. Appellants do not contest that the timing of their counsel’s leave of absence was such as to prevent their trial from otherwise having been conducted during the remainder of the March 1989 term of court. Compare Birts v. State, 192 Ga. App. 476 (385 SE2d 120) (1989); State v. McNeil, 176 Ga. App. 323 (335 SE2d 728) (1985). Instead, appellants rely only upon the erroneous contention that, under Hurt v. State, supra, the mere nolle prosequi of the original indictments during the March 1989 term resulted in their automatic acquittals before that term had ended. It follows that the trial court did not err in denying appellants’ pleas in bar. “[T]he defendant may waive his right to . . . automatic discharge by some action on his part or on the part of his counsel, such as his own request for a continuance. . . . [Cit.] ” Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324) (1975).

2. That the district attorney’s aunt served on the grand jury which returned the joint indictment upon which appellants were tried states no viable ground for quashing that indictment. Bolds v. State, 195 Ga. App. 586 (394 SE2d 593) (1990).

3. It is immaterial to the validity of the joint indictment that it was returned prior to the State’s nolle prosequi of the original separate indictments. Irwin v. State, 117 Ga. 706 (45 SE 48) (1903).

4. Appellant Watson moved to quash the joint indictment as against him, on the ground that it alleged that he “was present in Fayette County, Georgia, with an amount of controlled substances [when], in reality, [he] was not in Fayette County until after his arrest in Coweta County, Georgia.” Obviously, this states no viable ground for quashing the indictment. See State v. Holmes, 142 Ga. App. 847, 849 (237 SE2d 406) (1977). The evidence adduced at trial showed that venue was proper in Fayette County. See Hernandez v. State, 182 Ga. App. 797, 798 (1) (357 SE2d 131) (1987).

5. After the first day of trial, a juror became ill and the trial court ordered a 48-hour postponement. During this period, an unrelated case was tried. When appellants’ trial was recommenced, they filed a plea of double jeopardy. The trial court did not err in denying this plea. A postponement, like a continuance, is not a “termination” of the proceedings within the meaning of OCGA § 16-1-8 (a) where, as here, the trial is resumed before the same jury. See Barner v. State, 139 Ga. App. 50 (1) (227 SE2d 874) (1976).

6. Appellants enumerate as error the admission into evidence of certain testimony elicited from a State witness on re-direct examination. The record shows that, for the most part, the objections that were raised in the trial court to this witness’ testimony are too general to present any question for appellate consideration. See Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987). The only objection that was arguably preserved concerns the relevancy of the witness’ redirect testimony as rebuttal of any testimony he had given on cross-examination. This objection was properly overruled. Kidd v. State, 101 Ga. 528, 529 (4) (28 SE 990) (1897).

Decided September 4, 1990

Rehearing denied October 15, 1990

Joseph J. Saia, for appellants.

W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.

7. Appellants enumerate as error what they contend to be “conflicting instructions” in the trial court’s jury charge. Appellants’ argument in this regard rests upon the premise that subsections (A), (B) and (C) of OCGA § 16-13-31 (a) (1) establish three separate and distinct crimes of trafficking in cocaine. OCGA § 16-13-31 (a) (1) “requires possession of only ‘28 grams or more of cocaine or of any mixture with a purity of ten percent or more of cocaine’ to be guilty of trafficking. [Cit.] Larger amounts by specified increment^] [established by subsections (A), (B) and (C)] affect only the punishment. . . . [Trafficking in cocaine requires only that the threshold amount [of 28 grams or more] be shown, after which the quantity possessed bears only on punishment.” Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988). There was no error in the trial court’s charge.

Judgments affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A1014.
    EARP v. JORDAN.
    (398 SE2d 205)
   Beasley, Judge.

Discretionary appeal was permitted for the Commissioner of the Georgia Department of Public Safety to appeal an order directing it to immediately grant Jordan a habitual violator’s probationary license.

On July 26, 1985, the Department issued an official notice of revocation advising Jordan that he had been declared a habitual violator, OCGA § 40-5-58 (a), and revoking his license and privilege to operate a motor vehicle in Georgia for a minimum of five years from the date of surrender of his license. The notice stated that he had been declared a habitual violator because of violations of driving under the influence in 1983 and 1984 and of driving with a suspended/revoked license in 1984.

On December 21, 1987, Jordan appeared at the Department’s headquarters and was personally served with notice of his status as a habitual violator. At that time, Jordan executed an affidavit stating that he was unable to surrender his driver’s license because he had never received it from the examining board. In accordance with OCGA § 40-5-61 (e), the Department established that date as the one from which the period of revocation prior to return of a driver’s license would begin to run. On this same date, Jordan requested that he be issued a probationary driver’s license. The request was denied for ineligibility.

Jordan petitioned the superior court for review. Following a hearing on February 23, 1989, the court on April 25 directed the Department to immediately grant Jordan a probationary license, after concluding that the Department had failed to present sufficient evidence that Jordan had actually possessed a driver’s license to surrender after being declared a habitual violator.

The Department contends the court erred in disregarding the mandatory provisions of OCGA §§ 40-5-61 (e) and 40-5-58 (e) (1); erred in requiring the Department to assume the burden of proof that Jordan was in actual possession of a driver’s license subsequent to the issuance of an official notice of revocation to Jordan after his declaration as a habitual violator; and erred in requiring the Department to issue a habitual violator probationary driver’s license to Jordan, even though the issuance of such licenses is a matter requiring the exercise of the Department’s discretion and Jordan never demonstrated compliance with prerequisites.

1. OCGA § 40-5-58 (e) (1) provides that upon compliance with specified conditions “any person who has been declared a habitual violator and who has had his driver’s license revoked under subsection (b) of this Code section for a period of two years and two years have expired since the date on which such person’s license was surrendered or an affidavit was accepted as provided in subsection (e) of Code Section 40-5-61, such person may be issued a probationary driver’s license for a period of time not to exceed three years. . . .” (Emphasis supplied.)

OCGA § 40-5-61 (e) provides that “[f]or the purpose of making any determination under this Code section relating to the return of revoked or suspended licenses to drivers, no period of revocation or suspension shall begin until the license is surrendered to the department or a court of competent jurisdiction . . ., whichever date shall first occur. If the license is lost, or for any other reason surrender to the department is impossible, the period of revocation or suspension shall begin on the date an affidavit setting forth the reasons for such impossibility is received by the department." (Emphasis supplied.)

The statutory language precludes the superior court’s apparent analysis. Aside from any question of the Department’s evidentiary burden, whether or not Jordan had actually possessed a license to surrender is not determinative of the statutory time computation of eligibility for a probationary driver’s license. That is the first hurdle to overcome in obtaining one. Assuming that Jordan never received his license from the examining board as he averred in his affidavit, OCGA § 40-5-61 (e) specifically recognizes such instances of impossibility of license surrender. There was no evidence that Jordan made any attempt to earlier notify the Department of an inability to surrender his license. The Department properly used the date of Jordan’s affidavit as the starting point for computing his eligibility for the probationary license. Therefore, at the time of Jordan’s request the Department was obliged to turn it down due to prematurity.

Decided September 4, 1990

Rehearing denied October 15, 1990

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, William B. Hill, Jr., Deputy Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, C. Latain Kell, Assistant Attorneys General, for appellant.

Towery, Thompson, Gulliver, & Bunch, Harold S. Gulliver, for appellee.

2. Although the court hearing and order occurred more than two years after the date on which Jordan’s license was deemed surrendered, the court exceeded its authority in mandating the Department to then immediately grant the probationary license. OCGA § 40-5-58 subsections (e) (1) (A) through (e) (1) (E) outline the conditions that an applicant for a probationary license must meet.

Upon compliance with the conditions and payment of the specified fee, a probationary license may be issued. See OCGA § 40-5-58 (e) (1), (e) (3). Issuance is not automatic but is at the discretion of the Department. In addition, the Department has discretion to place certain restrictions on the probationary license. OCGA § 40-5-58 (e) (4).

The Court’s order short-circuited the Department’s statutory-given discretion. Its directive to the Department cannot stand.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1026.
    In the Interest of M. E. T., JR., a child.
    (398 SE2d 30)
   Carley, Chief Judge.

A petition was filed alleging that appellant was a delinquent child. Pursuant to OCGA § 15-11-10 (b), the hearing on the delinquency petition was held before a referee. We note that the judicial officer formerly known as a “referee” is now an “Associate Juvenile Court Judge.” Ga. L. 1990, p. 1691, § 4. However, since all proceedings in this case occurred prior to the effective date of the 1990 amendment to OCGA § 15-11-10, we will continue to refer to said officer as “referee.” The referee found appellant to be delinquent and recommended that he be placed on probation for 18 months. Pursuant to OCGA § 15-11-10 (d), appellant then filed a timely request for a rehearing by the juvenile court judge.

Thereafter, the record reflects that an order was entered indicating that the juvenile court judge had “reviewed the matter in accordance with Rule 19.2 of the Uniform Rules of the Juvenile Courts of Georgia by reviewing all the pleadings, and the electronic transcript from the original proceeding by the Referee.” The order further recites that, as the result of a review of the record of the original proceeding, the juvenile court judge found “that the referee did not commit any error in fact or in law in his conduct of this hearing. It is therefore ORDERED that [appellant’s] appeal is DENIED and the findings of the Referee ... are hereby confirmed and made the ORDER of the Court.” Having “denied” appellant’s appeal, the juvenile court judge subsequently signed the original findings and recommendations of the referee. In so doing, the juvenile court judge indicated that “[n]o request for rehearing having been filed within the time provided by law, the within and foregoing findings and recommendations are confirmed and made the Order of the Court.” It is from this judgment of the juvenile court confirming the findings and recommendations of the referee that appellant brings the instant appeal.

1. Appellant enumerates as error the failure of the juvenile court judge to afford him a de novo rehearing as to the issue of his delinquency.

OCGA § 15-11-10 (d) provides, in relevant part, that, after a referee has made his findings and recommendations, a rehearing before the juvenile court judge “shall be ordered if a party files a [timely] written request therefor. . . .” The record shows that appellant made such a timely request. It was, therefore, mandatory that the juvenile court judge conduct a rehearing. The rehearing that is mandated by OCGA § 15-11-10 (d) would differ from a review of a referee’s findings and recommendations. “[A] rehearing or reconsideration contemplates a second, a de novo, consideration of a cause or a retrial of the issues; while a review involves only the examination of the record by an appellate tribunal and consideration for the purpose of correction. [Cit.]” (Emphasis supplied.) Department of Public Safety v. MacLafferty, 230 Ga. 22, 27 (195 SE2d 748) (1973). Rule 19.2 of the Uniform Rules For the Juvenile Courts is procedural and provides that a rehearing pursuant to OCGA § 15-11-10 (d) is to be based upon the juvenile court judge’s review of the original evidence that was adduced before the referee. Rule 19.2 is not substantive authority for the juvenile court judge merely to conduct a review of the referee’s findings and recommendations for the purpose of correcting errors.

Thus, OCGA § 15-11-10 (d) and Rule 19.2 did not entitle appellant to a de novo evidentiary proceeding conducted before the juvenile court judge. Appellant was, however, entitled to have the juvenile court judge undertake a de novo review of the evidence that had been adduced before the referee and, based thereon, to have the juvenile court judge then make a de novo determination as to appellant’s delinquency. However, rather than undertaking such a de novo consideration and making such a de novo determination, the record shows that the juvenile court judge purported to act as an appellate court rather than a trial court and, after reviewing the referee’s findings for errors, “denied” appellant’s appeal. This was erroneous. There is no authority for a juvenile court judge to review a referee’s findings and recommendations and then to “grant” or “deny” an appeal. The review that the juvenile court judge was authorized and required to undertake was a de novo review of the evidence, not a review of the referee’s findings and recommendations. Likewise, the disposition that the juvenile court judge was authorized and required to make was a de novo determination as to appellant’s delinquency, not an order granting or denying appellant’s appeal.

The juvenile court judge also erred by subsequently “confirming” the findings and recommendations of the referee. A juvenile court judge is authorized to confirm the referee’s findings and recommendation only if no rehearing is mandated. OCGA § 15-11-10 (e). Although the juvenile court judge indicated that the confirmation of the referee’s findings and recommendations resulted from “no request for rehearing having been filed within the time provided by law,” this factual determination is clearly erroneous. Appellant had filed a timely request for a rehearing and it was, therefore, mandatory that a rehearing be conducted. OCGA § 15-11-10 (d). As discussed previously, appellant’s timely request for a rehearing required that the juvenile court judge make de novo findings and recommendations after conducting a de novo review of the original evidence that the referee had considered. The juvenile court judge in the instant case could have entered an order adopting the referee’s findings and recommendations after conducting a de novo review of the same evidence presented to the referee. The juvenile court judge could not, however, ignore appellant’s timely request for a rehearing and merely “confirm” the findings and recommendations of the referee pursuant to OCGA § 15-11-10 (e).

It follows that appellant has been denied the rehearing to which he is entitled under OCGA § 15-11-10 (d). “The only way for an appellate court to ensure that important safeguards such as [OCGA § 15-11-10 (d)] are observed is to reverse a case in which they are not observed and remand the case for further proceedings in which they will be observed.” In the Interest of C. M. M., 244 Ga. 787, 789 (2) (262 SE2d 103) (1979). Accordingly, the judgment of the juvenile court is reversed with direction that the erroneous orders that were entered after appellant’s timely request for a rehearing be vacated and that the juvenile court judge now conduct a de novo consideration of the evidence originally heard by the referee and then make a de novo determination as to appellant’s delinquency.

Decided September 26, 1990

Rehearing denied October 15, 1990.

Mitchell Rodriguez, for appellant.

Jonath A. Morrow, Solicitor, Joan M. Kuechle, Assistant Solicitor, for appellee.

2. Appellant’s remaining enumeration of error is moot.

Judgment reversed with direction.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1078.
    SAMPLES v. SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA.
    (398 SE2d 220)
   Carley, Chief Judge.

Appellant-defendant Steven Samples was injured when his vehicle was struck by a vehicle which was owned by appellant-defendant James Waite, but which was being operated by appellant-defendant Virgil Bankston. As the insurer of Waite’s vehicle, appellee-plaintiff Southern Guaranty Insurance Company of Georgia initiated this declaratory judgment action, seeking a declaration that it afforded Bankston no liability coverage. After discovery, appellee moved for summary judgment, relying upon the provision of its policy which excluded liability coverage for any person who drove Waite’s vehicle “without a reasonable belief that [he] is entitled” to do so. The trial court conducted a hearing and, finding that no genuine issue of material fact remained as to Bankston’s lack of a reasonable belief in his entitlement to drive Waite’s vehicle, granted summary judgment in favor of appellee. Samples appeals from this order of the trial court.

The following facts are undisputed: On the evening before the collision, Bankston dropped by Waite’s home for a social visit. He drank a large amount of alcohol and, after becoming highly intoxicated, either fell asleep or passed out. Between 1:30 a.m. and 4:00 a.m. the next morning, he awoke and drove away in Waite’s car rather than his own. The keys had been left in Waite’s car and Bankston did not seek permission before he took his friend’s car. Although he had never been told that he could not drive Waite’s car, he had never been told that he could. He had never driven or borrowed Waite’s car before. Shortly after taking Waite’s car, he collided with Samples. At the time of the collision, Bankston’s blood-alcohol level was .13 percent and he pled guilty to a charge of driving under the influence. Waite swore out a warrant against Bankston for automobile theft.

Notwithstanding this undisputed evidence, Samples urges that a genuine issue of material fact remains as to whether Bankston had a reasonable belief in his entitlement to take and drive Waite’s car. Samples relies upon an affidavit wherein Bankston averred that he and Waite had “been friends for a lot of years and [he] didn’t think [Waite] would have minded anyway. If [Waite] had wanted to borrow [his] car, [he] would have loaned it to [Waite], and [he was] sure [Waite] would do the same for [him]. [Waite] certainly never told [him he] couldn’t borrow it, and [he] sure didn’t think [he] was taking it without [Waite’s] O.K.”

Bankston’s affidavit may be sufficient to show that he unilaterally assumed that he was in fact entitled to drive Waite’s car and thus lacked the criminal intent to steal it. However, the issue to be decided is whether such a unilateral assumption on Bankston’s part was reasonable so as to authorize the extension of liability coverage to him under the terms of the policy that appellee issued to Waite. According to Bankston’s affidavit, his unilateral assumption that he was entitled to take and drive Waite’s car was based upon his mere status as a friend. “A reasonable belief that one has implied permission to drive his or her spouse’s automobile may otherwise be inferred from the existence of the marital relationship and from possession of a set of keys to that automobile.” (Emphasis supplied.) Omni Ins. Co. v. Harps, 196 Ga. App. 340, 342 (396 SE2d 66) (1990). However, no authority has been cited for the proposition that a belief that one has implied permission to take and drive another’s automobile at will may otherwise be reasonably inferred from the existence of merely a friendly relationship and from non-permissive access to a set of keys to that automobile. Unlike spouses who have exchanged keys to their respective cars, friends who have not done so cannot reasonably be presumed to have dispensed with the necessity for securing express permission prior to driving each other’s automobiles. Absent some evidence in addition to the showing that Waite had left the keys in his car and was a friend of Bankston, a finding that the latter had a reasonable belief that he had implied permission to take and drive the former’s automobile at will would not be authorized. See generally Willis v. Allen, 188 Ga. App. 390 (373 SE2d 79) (1988).

In support of its motion, appellee produced evidence that Waite had given no express or implied permission for his automobile to be driven by Bankston. In opposition to appellee’s motion, Samples produced no evidence that Waite had ever given express permission for his automobile to be driven by Bankston, but he relied entirely upon Bankston’s unilateral assumption that he had implied permission to take the car merely because of his friendship with Waite. Since this unilateral assumption fails to demonstrate that Bankston had a reasonable belief in his entitlement to take and drive Waite’s car, it follows that the trial court correctly granted summary judgment in favor of appellee.

Decided September 26, 1990

Rehearing denied October 15, 1990

Germano, Kimmey & Cheatwood, J. Lansing Kimmey III, for appellant.

Darroch & Obenshain, Robert M. Darroch, Mark A. Barber, Husby, Myers & Stroberg, W. Allan Myers, Laura E. Austin, for appellee.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1145.
    HILL v. THE STATE.
    (398 SE2d 226)
   Beasley, Judge.

Hill was convicted of violating the Georgia Controlled Substances Act by unlawfully delivering cocaine and unlawfully selling and distributing and knowingly possessing 200 grams or more of cocaine or a mixture with 10 percent or more of cocaine. OCGA § 16-13-30 (b). At trial, Hill offered the defense of entrapment. He enumerates as error the denial of his motion for directed verdict of acquittal because there was an absence of any evidence that he had ever engaged in any misconduct of any kind prior to his being unduly induced to do so by the State’s paid informant.

Citing United States v. Luttrell, 889 F2d 806 (9th Cir. 1989) and United States v. Jacobson, 893 F2d 999 (8th Cir. 1990), appellant urges that this Court adopt a rule that a defendant has established entrapment as a matter of law where the State puts up absolutely no evidence of predisposition and where there is no evidence that the defendant was the subject of suspicion based on any facts. However, a defendant’s otherwise unrebutted claim of no previous criminal activity is not sufficient probative evidence of non-predisposition to engage in such activity. There is no requirement that predisposition include a factual showing that a defendant was suspect prior to commission of the criminal act at issue. See Gray v. State, 191 Ga. App. 135, 136 (2) (381 SE2d 312) (1989). The rule proposed by appellant would automatically allow the entrapment defense to prevail for every first offense wherein law enforcement had any involvement in the transaction.

The law on establishing entrapment in this state is well-settled. “In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement or deceit; and (3) the defendant must not be predisposed to commit the crime. OCGA § 16-3-25 (enacted in 1968). [Cit.]” Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984).

The evidence at appellant’s trial construed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed predisposition to commit the acts charged. Informant Reed repeatedly called Hill and ultimately arranged Hill’s introduction to undercover agents with a regional narcotics squad. Reed had represented to Hill that he was wealthy and had influential contacts. Reed persuaded Hill to find a cocaine source. Hill refused at first, but after calls and visits from Reed, Hill found a source. At the request of an agent, Reed called Hill and asked for a cocaine sample. It was retrieved from Hill’s place of employment within minutes.

Four days thereafter, Reed and two of the agents met with Hill at a restaurant to purchase cocaine. One agent was wearing a body transmitter. After entering the restaurant, the other agent walked over to Hill and asked him to step outside to the parking lot so the agent could show him something. For safety reasons, agents carried “surprise flash” money, $10,000 in cash to show Hill, who had not been told about the money. The agents knew that in negotiations to purchase large amounts of cocaine, the person they would negotiate with would want to see the money. The agents preferred to show it when the person was not expecting it, so that the person would not have time to set up a robbery. The agent showed Hill the $10,000 and told him it was $11,200. Hill showed no surprise. The agent then told Hill that he was just supposed to show Hill the money and that the agent did not know much about what was going on. He told Hill to talk to the other undercover agent, who was waiting in the restaurant.

Hill returned to the restaurant and sat down with the other agent. The agent who had shown the flash money left and went to a location to monitor the conversation. Reed also left.

The remaining agent asked Hill if the money looked okay and Hill indicated it looked fine. They discussed the purchase of eight ounces of cocaine. This agent had represented to Hill that he was a bodyguard for a Tennessee man, had flown in on a private jet, and was there to pick up the cocaine. Hill indicated the drugs were in his car at a hotel, and he asked the agent to go with him for them. The agent refused and indicated he would call the deal off. He criticized Hill’s way of doing business; he told Hill that if he could not even put together an eight-ounce deal without having to go somewhere else to get the drugs, then he questioned whether or not Hill could handle his business. Hill assured the agent he could handle everything and anything that was wanted, as much as a “couple or five kilos, multikilos.”

Hill indicated the “turnaround” time for multi-kilos would be about a week to ten days and the agent would deal with Hill personally. He apologized for the inconvenience this time and indicated that there would not be this problem in the future; he could just fly in and pick up any drugs from Hill. The agent told Hill that in forty-five minutes he was leaving to go back to Tennessee but that he could be reached by beeper if Hill wanted to bring the cocaine to him. Hill called the agent within thirty minutes after the agent arrived at an undercover apartment and arranged to complete the transaction at the restaurant. When the agents arrived there, Hill was standing outside and told them to come to his car. The three got into the car and Hill asked them if the agents had the money. One agent told Hill the money was in their car but asked to see the drugs first. Hill said the drugs were in a sock on the floor under the seat. The other agent began to slowly unroll the sock. Hill reached over, took the sock from the agent, unrolled it, pulled out a clear plastic bag containing 224 grams of cocaine, and handed it to an agent.

“Where a defendant raises an affirmative defense and testifies to the same, the burden is on the State to disprove the defense beyond a reasonable doubt. [Cits.] Ordinarily, the determination of whether the State has met the burden rests with the jury. [OCGA § 17-9-3.] However, where there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom, demands a verdict of acquittal, the trial court in a criminal case must direct a verdict of acquittal. [OCGA § 17-9-1]; [cit.]” State v. Royal, 247 Ga. 309 (1) (275 SE2d 646) (1981). This was not the situation in this case.

Hill maintains that the informant’s undue persuasion included threats to his and his family’s safety and that when he finally was persuaded to become part of the transaction, he was merely to arrange a meeting between his contact and the agent and then withdraw. First, unlike those cases where the identity of the informant is not disclosed, informant Reed testified. He admitted he had pursued Hill who eventually cooperated, but, much of the remainder of the informant’s testimony conflicted with Hill’s version of events. Reed testified he did not threaten any violence but kept pushing the power and money aspects of drug dealing. The informant thought Hill was in over his head and that he was not a dealer even though Hill was pretending to be one.

Decided September 27, 1990

Rehearing denied October 15, 1990

The Garland Firm, Edward T. M. Garland, Charles G. Haldi, Jr., Donald F. Samuel, for appellant.

Thomas J. Charron, District Attorney, W. Thomas Weathers III, Debra H. Bernes, Assistant District Attorneys, for appellee.

Second, there was evidence that Hill became eager and willing to participate. “There is no entrapment where a defendant who is ready to commit the offense is merely furnished an opportunity. [Cit.] Even repeated requests and offers of money do not make out an entrapment situation as a matter of law. [Cits.]” Paras v. State, 247 Ga. 75, 77 (2) (274 SE2d 451) (1981). See Pennyman v. State, 175 Ga. App. 405 (333 SE2d 659) (1985).

Third, the evidence that Hill was able to produce a sample of cocaine within minutes of the informant’s call, his announcement that he could handle large future drug deals, his lack of surprise at the flash money, and his rapid production of a substantial quantity of cocaine authorize a factfinder to infer that Hill was intimately familiar with drug deals and had a predisposition to commit the crimes charged.

Inasmuch as Hill’s evidence negating his intent and predisposition to commit the charged crimes was not unrebutted, the issue of an entrapment defense was properly submitted to the jury. See Bennett v. State, 158 Ga. App. 421, 422 (1) (280 SE2d 429) (1981). It was within the jury’s province to decide which witnesses to believe. Id.; see also Pennyman, supra at 407 (1) (a).

Judgments affirmed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1363.
    WALTON v. THE STATE.
    (398 SE2d 221)
   Carley, Chief Judge.

Appellant was convicted in the probate court of driving under the influence of alcohol and, pursuant to OCGA § 40-13-28, appellant appealed to the superior court. The superior court determined that the probate court was without authority to try appellant because appellant’s written waiver of trial by jury had not been secured. See OCGA § 40-13-23 (a); Rustin v. State, 192 Ga. App. 775, 776 (2) (386 SE2d 535) (1989). On this basis, the superior court remanded the proceedings to the probate court with direction that the probate court recall the case and either retry appellant if he waived trial by jury in writing, or bind appellant over for jury trial in the superior court if he did not. Appellant appeals from this order of the superior court.

1. The appeal that is created by OCGA § 40-13-28 is a de novo proceeding. Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988). In such a proceeding, the superior court, following its own applicable procedures, undertakes to address only those issues which the lower court was otherwise authorized to address. Peavey v. Crawford, 182 Ga. 782 (1) (187 SE 13) (1936). Thus, if the record had demonstrated that the probate court was otherwise authorized to determine appellant’s guilt or innocence, the superior court, exercising the comparable authority of the probate court, but following the applicable procedure of OCGA § 40-13-28, would have been authorized to determine appellant’s guilt or innocence by conducting a de novo review of the certified record of the hearing that had been conducted by the probate court. However, the record demonstrated that the probate court was not otherwise authorized to determine appellant’s guilt or innocence because there was no written waiver of trial by jury. Accordingly, the superior court correctly held that, on the record before it, it likewise had no comparable authority to determine appellant’s guilt or innocence through the procedure mandated by OCGA § 40-13-28.

The question remains, however, whether the superior court correctly remanded the case to the probate court. In a de novo appellate proceeding before the superior court, the “case must be tried anew as if no trial had been had. [Cits.] It is not the province of the superior court on such an appeal to 'review and affirm or reverse the rulings of the [probate court], but to try the issues anew and pass original judgments on the questions involved as if there had been no previous trial.” (Emphasis supplied.) Hall v. First Nat. Bank of Atlanta, 85 Ga. App. 498 (3) (69 SE2d 679) (1952). “‘[T]he case on appeal from the [probate court] brings the whole case up for a new hearing’ but with the same jurisdiction as was possessed by the [probate court]. [Cits.]” (Emphasis supplied.) Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972). It follows that the superior court “erred in remanding the proceedings to the [probate court]. [Cit.]” Knowles v. Knowles, supra at 645 (1). The whole case was before the superior court and, exercising the comparable authority of the probate court, the superior court itself should have addressed the lack of appellant’s written waiver of the right to trial by jury on the record before it and should have made the appropriate rulings in that regard just as if no previous proceedings had been held in the probate court. Thus, if the superior court failed to obtain appellant’s written waiver of trial by jury, the superior court itself should have placed the case on its own jury trial calendar just as the probate court would be required to bind the case over for jury trial in the superior court. If, on the other hand, the superior court did obtain appellant’s written waiver of trial by jury, the superior court itself should have placed the case on its own non-jury trial calendar just as the probate court would be required to conduct a non-jury trial. Accordingly, the superior court’s order remanding the case to the probate court is reversed with the direction that the superior court address the issue of appellant’s written waiver of the right to trial by jury and make the appropriate rulings in that regard.

Decided September 26, 1990

Rehearing denied October 15, 1990

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

2. Appellant’s remaining enumeration of error has been considered and found to be without merit.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1468.
    WALKER v. THE STATE.
    (398 SE2d 217)
   Beasley, Judge.

Defendant was sentenced on December 6, 1989. He was represented by appointed counsel at trial. The record contains no indication that this counsel was released from further representation.

On December 20, defendant filed his personal letter with the clerk requesting that he be allowed to have an appeal and requesting appointment of an attorney.

On January 16, 1990, new appointed counsel filed a motion for new trial on the general grounds. (See Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).) It was denied on March 21. A notice of appeal was filed by counsel on April 16.

This court is without jurisdiction to consider the merits of the sole enumeration of error. Since the motion for new trial was not filed within 30 days of the judgment as required by OCGA § 5-5-40 (a), the time for appeal was not extended under OCGA § 5-6-38 (a). No extension for the motion could be given, as it is prohibited by OCGA § 5-6-39 (b). No motion for an out-of-time appeal was made.

The appeal must be dismissed. Clay v. State, 194 Ga. App. 354 (391 SE2d 143) (1990).

Decided September 11, 1990

Rehearing denied October 15, 1990.

Jay P. Wells, for appellant.

John R. Parks, District Attorney, R. Rucker Smith, Assistant District Attorney, for appellee.

Even if this court had been properly vested with jurisdiction, the judgment would not be disturbed. The sole enumeration of error complains that the defendant’s character was impermissibly placed into evidence by the State’s cross-examination of defendant’s witness. OCGA §§ 24-9-20; 24-2-2.

Defendant called a person who was then in jail with him and who was charged with robbing a fast food store next to the store defendant was accused of robbing the same night. They had also both been charged with a robbery in 1981; the witness was convicted and the indictment was nolle prossed against defendant because of his plea of guilty to another charge.

The witness testified he had known defendant eight or nine years. He related a recent incident at the jail. On cross-examination by the State, he said he knew defendant as a co-worker at a certain business concern and did not work together with him in any other way. The State introduced the 1981 robbery conviction and related documents to impeach the witness as to what he had said regarding his relationship with defendant and to prove a crime of moral turpitude. Defendant objected to his character being placed in evidence and sought a mistrial, which was denied. When the exhibits were tendered, defendant stated he had no objection to their admission.

The overruling of the motion would constitute no reversible error. OCGA § 24-9-82 (impeachment by disproving testimony); OCGA § 24-9-68 (witness’ relationship with party); Powell v. State, 122 Ga. 571 (50 SE 369) (1905) (impeachment by proof of conviction of moral turpitude crime); Daniels v. State, 234 Ga. 523, 524 (3) (216 SE2d 819) (1975) (copy of conviction record required). The fact that evidence incidentally places defendant’s character in issue does not render it inadmissible. Mulkey v. State, 250 Ga. 444, 446 (3) (298 SE2d 487) (1983). Granting or denying a mistrial is within the sound discretion of the trial judge. Fortson v. State, 240 Ga. 5, 6 (2) (239 SE2d 335) (1977).

Moreover, the evidence against defendant was overwhelming. Even if the denial of mistrial was error, it was harmless. Ellis v. State, 256 Ga. 751, 755 (2) (353 SE2d 19) (1987).

Appeal dismissed.

Deen, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    A90A1469.
    FARMER v. THE STATE.
    (398 SE2d 235)
   Sognier, Judge.

Henry Clyde Farmer, a/k/a Mike Farmer, was convicted by a Polk County jury of attempted rape, and he appeals.

Construed to support the verdict, the evidence adduced at trial showed that the victim, a high school senior at the time, injured her back at a part-time job and sought treatment from appellant, a chiropractor who had treated her family. The victim testified that after using recognized chiropractic practice, appellant pulled up her blouse and pulled down her skirt and underclothes and fondled and kissed her before then attempting intercourse. She testified that she begged him to stop, that his attempts at intercourse were painful, and that she pushed him away repeatedly but that she was “scared and very nervous” and “kept thinking that [she] just had to let him do whatever he was going to do because he was so big” and would harm her greatly if she made him angry. She testified that appellant eventually abandoned his assault and allowed her to leave. She went home and told her parents, who contacted the police. Medical testimony showed that the victim was a virgin whose vaginal wall showed a fresh tear. Appellant testified that the victim had been “coming on strong” to him, but denied assaulting her.

The State called three other witnesses who had been patients of appellant, each of whom testified that either in the course of or following chiropractic treatment, appellant had fondled them or made inappropriately sexually suggestive comments. All three were teenagers at the time the incidents occurred.

1. Appellant contends the evidence was insufficient to support the conviction in that the State failed to prove that the incident occurred “forcibly and against [the victim’s] will,” as required by OCGA § 16-6-1 (a). We do not agree. First, the victim testified that she kept pushing appellant away. Second, to the extent that she did not exhibit great resistance, she testified that she was frightened by appellant’s size, and “[l]ack of resistance, induced by fear, is not legally cognizable consent but is force. [Cit.]” Derr v. State, 239 Ga. 582 (1) (238 SE2d 355) (1977). We find the evidence sufficient to support appellant’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Brown v. State, 193 Ga. App. 772-773 (1) (389 SE2d 268) (1989).

2. Appellant maintains the trial court erred by admitting the evidence about prior similar transactions, as they were not sufficiently similar. “ ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible “to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.” (Cits.)’ [Cit.]” Vereen v. State, 162 Ga. App. 1, 3 (3) (289 SE2d 766) (1982). A comparison of the incidents described by the other witnesses and that testified to by the victim reveals remarkable similarity. The victims were all teenage females, all were patients, and all were fondled by appellant in a similar manner in the course of or following a chiropractic examination or treatment. We find no error in the admission of this evidence. See Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989).

Decided October 1, 1990

Rehearing denied October 15, 1990

T. Peter O’Callaghan, Jr., for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

3. In two separate enumerations, appellant contends the trial court erred by allowing GBI agent Lisa Harris to testify, both because her name was not on the witness list provided to appellant and because her testimony was not included in the State’s notice to appellant, pursuant to USCR 31.3, of its intention to present evidence of similar transactions. We do not agree.

(a) The transcript shows that Harris was called in rebuttal, and “ ‘[c]ailing an unlisted witness in rebuttal is not error. [Cits.]’ [Cit.]” Mize v. State, 240 Ga. 197, 199 (6) (240 SE2d 11) (1977).

(b) In Harris’ capacity as a GBI agent, she had posed as a patient in a prior investigation of appellant prompted by the complaint of one of the earlier victims whose testimony was admitted into evidence in this case. The State called Harris in rebuttal to impeach appellant’s former employees Laurie Tucker and Judy Sims that appellant’s examination rooms were never locked, and that appellant was never alone with female patients and never asked them sexually suggestive questions or made improper comments. See OCGA § 24-9-82. Since USCR 31.3 (E) provides, in pertinent part, that “[n]othing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses,” we find that Harris’ testimony concerning appellant’s prior conduct with her was properly admitted despite the absence of her name from the State’s notice to appellant that it intended to present evidence of similar transactions. See Beauchene v. State, 194 Ga. App. 222, 223-224 (2) (a) (390 SE2d 116) (1990).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A89A0116.
    THE STATE v. STEWART et al.
    (398 SE2d 270)
    Decided October 15, 1990.

      Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.

      Scott & Quarterman, Russell T. Quarterman, Bradley S. Wolff,
      for appellees.
   Beasley, Judge.

This court affirmed the grant of defendants’ motion to suppress evidence seized in a search. State v. Stewart, 191 Ga. App. 750 (382 SE2d 677) (1989). Motion for rehearing and certiorari were denied. Our remittitur was sent to the trial court and filed there in October. The United States Supreme Court granted the State’s subsequent application for certiorari and entered a judgment on June 25, 1990, remanding the cause to this court “for further consideration in light of Illinois v. Rodriguez, 497 U. S. _ (110 SC 2793, 111 LE2d 148) (1990).”

During this time no stay was granted by any court. Consequently, this court’s jurisdiction terminated when its judgment was transmitted to, and received by, the trial court. Byrd v. Clark, 170 Ga. 912 (154 SE 881) (1930); Seaboard Air-Line R. v. Jones, 119 Ga. 907 (47 SE 320) (1904); Knox v. State, 113 Ga. 929, 930 (39 SE 330) (1901). The Supreme Court’s order did not revive it. This court can make no further order having the effect of altering or changing the judgment it pronounced. Slappy v. Ga. Power Co., 109 Ga. App. 850, 856 (137 SE2d 537) (1964); Cooper v. Portner Brewing Co., 113 Ga. 1, 2 (38 SE 347) (1901). The State’s failure to procure a stay precludes further judgment by this court. Curry v. Construction &c. Union, 219 Ga. 38 (131 SE2d 559) (1963). The mandate of the United States Supreme Court must be transmitted in certified copy form to the trial court in order that the direction given by the former may be effected in the latter. Id. at 39.

Case remanded.

Carley, C. J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

I concur specially to note that the Court of Appeals of Georgia possesses the inherent power to recall its remittiturs, especially, under the particular facts and circumstances of the case sub judice. However, I am constrained to agree with the majority’s procedural implementation of the mandate of the Supreme Court of the United States only because a similar procedure was mandated by the Supreme Court of Georgia in Curry v. Construction &c. Union, 219 Ga. 38 (131 SE2d 559) (1963), cited by the majority.


text:
    A90A1496.
    PRESSLEY v. THE STATE.
    (398 SE2d 268)
   Sognier, Judge.

Denny Edward Pressley was convicted of kidnapping with bodily injury, child molestation, two counts of aggravated sodomy, and following a jury determination was sentenced as a recidivist. He appeals from the judgment entered on the jury’s verdict.

1. Appellant first contends the court erred by entering judgment and sentencing him for both child molestation and aggravated sodomy because the offenses merged as a matter of fact. The evidence adduced at trial established that the victim, a nine-year-old girl, was riding her bike in her Gwinnett County subdivision on the evening of July 14, 1989, when a man she identified as appellant seized her from her bike, forced her into the trunk of his car, and drove to a deserted area where he removed her clothes. He then inserted his finger into her vagina, placed his mouth on her vagina, and forced his penis into her mouth. The indictment charged appellant with child molestation in connection with the fondling of the victim’s vagina, while the aggravated sodomy charges were based on the two acts of oral sex.

We do not agree with appellant that the aggravated sodomy charges were included in the child molestation charge. A crime is included within another charged crime if, inter alia, “[i]t is established by proof of the same or less than all the facts . . . required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). Here, unlike the circumstance in Horne v. State, 192 Ga. App. 528, 533 (6) (385 SE2d 704) (1989), cited by appellant, the acts of sodomy were not needed to prove child molestation because that charge was completed with proof of the fondling of the victim’s vagina. See OCGA § 16-6-4 (a). Since the acts of sodomy were not used to establish the child molestation charge, no merger occurred. See McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985).

2. Appellant raises two challenges to statements made by the prosecutor during closing argument, one of which appellant contends constituted an expression of opinion by the prosecutor and the other of which purportedly injected passion into the case. These enumerations are without merit. Appellant’s characterization of the statements is wholly unsupported by the record, and he failed to raise any objection at trial. See Brinson v. State, 191 Ga. App. 151, 152 (3) (381 SE2d 292) (1989).

3. For the same reasons, we find no merit in appellant’s contention that the trial court erred by allowing the victim’s mother, who testified before the victim, to remain on the witness stand with the young victim while she testified. Trial counsel expressly stated he had no objection, and there is nothing in the record to support appellant’s claims of prejudice. See generally Boatright v. State, 192 Ga. App. 112, 114-116 (5) (385 SE2d 298) (1989).

4. Appellant raises three challenges to the court’s charge to the jury. We note that at trial, after the court completed the instructions to the jury, appellant’s counsel did not reserve his right to object later, and instead expressly stated he had no objections to the court’s jury instructions. Accordingly, reversal of the judgment is warranted only if there was a substantial error in the charge which was harmful as a matter of law. OCGA § 5-5-24 (c). The transcript of the charge conferences reveals appellant’s counsel expressly consented to the charges proposed by the court on these topics, which were correct statements of the law as it applied to the facts of this case. “ ‘[A] litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.’ [Cit.]” Boatright, supra at 116 (5). There being no substantial errors in the challenged charges and no harm as a matter of law, we find no merit in these enumerations.

5. In his final enumeration, appellant maintains the trial court erroneously allowed the State “to advise the jury of appellant’s invocation of [his] right to counsel.” The evidence at issue was the testimony of Detective Wayne Rickard, the investigating officer, who, during the course of his description of the events surrounding appellant’s custodial statement, revealed that appellant was advised of his right to consult with an attorney but declined to exercise that right, and then submitted to two hours of questioning by police. No objection to this testimony was interposed by defense counsel. On appeal, appellant contends this testimony concerning his invocation of a constitutional right was unduly prejudicial and a denial of due process.

Appellant’s argument mischaracterizes the testimony below and misapprehends the nature of the right protected. The challenged testimony disclosed that appellant declined to invoke his constitutional right to counsel before giving a statement to police. Moreover, the interest protected is the right of an accused to remain silent and not have that silence used against him at trial. Wainwright v. Greenfield, 474 U. S. 284, 290-292 (106 SC 634, 88 LE2d 623) (1986); see Wilson v. State, 259 Ga. 55, 57-58 (4) (376 SE2d 676) (1989). Since appellant did not choose to remain silent, but instead gave a statement to police, we find no reversible error in the admission of the testimony at issue, especially given that no objection was made below, Wilson, supra at 58 (4), and that the prosecution did not use appellant’s conduct or statements regarding counsel against him. Compare Wainwright, supra at 286-287.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.

Decided October 15, 1990.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A90A1370.
    JUSTICE et al. v. KERN & COMPANY, INC. et al.
    (398 SE2d 223)
   Carley, Chief Judge.

Appellant-plaintiffs brought this tort action against appellee-defendants and the case was tried before a jury. A verdict was returned in favor of appellees and appellants appeal from the judgment that was entered on the jury’s verdict.

1. The trial court ordered that appellants either testify first or be sequestered during the testimony of their witnesses. This order is enumerated as error.

“The record shows that after appellee [s] moved for sequestration of the appellants], the trial court offered the appellants] the option of testifying first and remaining in the courtroom during the testimony of [their] witnesses, or remaining outside the courtroom until such time as [they] chose to testify. ... It has been generally held that the rule of sequestration, OCGA § 24-9-61, does not apply to a party tó the case. [Cits.] However, the cases also recognize that where the plaintiff elects to call his own witnesses before testifying himself, the trial court has a broad discretion to require either that the plaintiff testify prior to presenting the testimony of his witnesses, [cits.], or that the plaintiff be excluded from the courtroom prior to the time he chooses to testify. [Cits.] We hold that under the circumstances of this case the trial court did not abuse its discretion in offering the appellants] the option of testifying first or remaining outside the courtroom until [they] chose to testify.” Barber v. Barber, 257 Ga. 488 (1) (360 SE2d 574) (1987). “ ‘The action of the court was proper to preserve the [appellees’] right to sequestration of the witnesses and [appellants’] right to be present during the whole trial of the case,’ [cit.].” Walden v. MARTA, 161 Ga. App. 725, 726 (288 SE2d 671) (1982).

2. The trial court’s purported refusal to sequester one of appellees’ witnesses is enumerated as error.

The record shows that this witness “remained in the courtroom while [appellants’] witnesses were examined . . .; however, he was used as the [appellees’] first witness. . . . These facts show no violation of [OCGA § 24-9-61] which requires only that witnesses of the other party be examined out of the hearing of each other. [Cits.] Therefore, argument of counsel that this witness had heard the testimony of [appellants’ witnesses] is entirely irrelevant and shows no violation of the statute. [Cits.]” (Emphasis in original.) Hall v. Hall, 220 Ga. 677, 679 (1) (141 SE2d 400) (1965). See also Hayes v. State, 182 Ga. App. 26, 29 (2) (354 SE2d 655) (1987); Hawkins v. State, 260 Ga. 138, 140 (8b) (390 SE2d 836) (1990). “The purpose of OCGA § 24-9-61 was served in that the excepted witness testified first. [Cit.]” Batten v. Batten, 182 Ga. App. 442, 444 (3) (356 SE2d 228) (1987).

Decided September 26, 1990

Rehearing denied October 16, 1990

Remler, Catts & Koski, Austin E. Catts, Middleton & Anderson, Robert H. Benfield, Jr., for appellants.

Neely & Player, John W. Winborne III, Mary F. O’Malley, Jones, Brown & Brennan, Rebecca A. Copeland, Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Rex D. Smith, Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Roger S. Sumrall, for appellees.

3. Appellants enumerate as error the trial court’s failure to give their written request to charge on the distraction theory. See generally Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1) (360 SE2d 415) (1987).

At the charge conference, appellees urged that this request was not adjusted to the evidence and appellants urged that it was. However, when the trial court stated it would not give the requested instruction, appellants made no objection. After the charge had been given, appellants objected to the trial court’s failure to give certain of their requested instructions, but they did not object to the failure to give their requested instruction on the distraction theory.

“We do not characterize [appellants’] initial comment [in] the charge [conference] as raising any objection. . . . Furthermore, once the court announced its determination that it would [not] give the instruction, the [appellants] remained mute.” Turner v. Taylor, 179 Ga. App. 574, 576 (4) (346 SE2d 920) (1986). In the absence of an objection, the failure to give appellants’ requested instruction “cannot be considered on appeal. [Cits.]” Nolen v. Murray Indus., 165 Ga. App. 785, 787 (5) (302 SE2d 689) (1983). Since the refusal to give the requested instruction does not come within the exception of OCGA § 5-5-24 (c), it follows that this enumeration is without merit.

4. The motion of appellee Ronco Irrigation, Inc., for the imposition of a $500 penalty for frivolous appeal is hereby denied.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1407.
    WILLIAMS v. THE STATE.
    (398 SE2d 381)
    Decided September 26, 1990
    Rehearing denied October 16, 1990.

      James D. Dunham, for appellant.

      W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of forcible rape. He appeals from the trial court’s failure to grant his motion for new trial on the ground of newly discovered evidence.

In support of his motion for new trial, appellant introduced affidavits wherein the victim’s mother and two others swore that, after the trial, the victim had recanted. These affidavits did not affirmatively show that the victim had no personal knowledge of the inculpatory facts to which she had testified at trial. Compare Fugitt v. State, 251 Ga. 451, 452 (1) (307 SE2d 471) (1983). Even if appellant had supported his motion by producing the post-trial recantation of the actual victim herself, a new trial would not be warranted. “That a material witness for the State, who at the trial gave direct evidence tending strongly to show [appellant’s] guilt, has since the trial made statements [even] under oath that his former testimony was false, is not cause for a new trial. [Cits.]” Fowler v. State, 187 Ga. 406, 407 (7) (1 SE2d 18) (1939). “Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. [Cit.]” Brown v. State, 60 Ga. 210, 212 (1) (1878). Appellant’s motion for new trial on the ground of newly discovered evidence was correctly denied.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.