author: Mikell, Judge.

text:
    A01A1389.
    SATURNA et al. v. BICKLEY CONSTRUCTION COMPANY.
    (555 SE2d 825)
   Mikell, Judge.

Joseph and Denise Saturna entered into a contract with Bickley Construction Company (“Bickley”) for the construction of a home on their property. During construction, the Saturnas expressed dissatisfaction with different costs associated with the project and refused to make scheduled payments to Bickley. After the parties failed to resolve their disagreement, Bickley attempted to schedule arbitration, pursuant to the contract. When the Saturnas refused, Bickley filed a petition to compel arbitration in the Superior Court of Bibb County. The trial court heard the petition and ordered that the matter proceed to arbitration. We granted the Saturnas’ application for interlocutory appeal and now affirm the trial court’s order.

The Saturnas argue that the trial court erred in finding that the arbitration clause was enforceable. The construction of a contract is a question of law for the court, and we apply a de novo standard of review on appeal. OCGA § 13-2-1; Deep Six v. Abernathy, 246 Ga. App. 71, 73 (2) (538 SE2d 886) (2000).

Paragraph 8 of the contract, entitled “Arbitration,” provides:

All claims or disputes arising out of this agreement shall be decided in accordance with rules of the American Arbitration Association, unless the parties mutually agree otherwise. The parties agree to abide by the decision of said Arbitrator and the party which loses said arbitration shall be responsible for all costs associated with said disagreement that are fair and usual, including but not limited to additional interest, expenses, and lost time.

Next, paragraph 9, “Termination of the Contract,” states:

If the Owner [the Saturnas] (a) fails to comply with the provisions of this contract; (b) terminates the contract for any reason other than the builder’s [Bickley’s] failure to perform; or (c) orders the builder or the builder’s agents, employees, or sub-contractors to stop work to be performed by this contract, then builder may (a) terminate this contract and retain any down payments and/or deposits as liquidated damages; (b) recover all unpaid costs, expenses, and fees earned to the time of default or termination . . . ; and (c) institute judicial proceedings for specific performance and/or any other legal and equitable remedies.

(Emphasis supplied.)

The Saturnas do not contend that the arbitration clause itself is invalid; rather, they argue that because paragraph 9 offers an alternative avenue of redress to Bickley in the event that the contract has been terminated, the arbitration clause in paragraph 8 is unenforceable. They assert that the court erred by enforcing the arbitration clause and ordering that, to the extent there was a conflict between paragraphs 8 and 9, the arbitration clause governed their particular dispute.

We conclude that the trial court properly enforced the arbitration clause. It was the court’s duty to determine whether the parties intended to arbitrate the dispute. Primerica Financial Svcs. v. Wise, 217 Ga. App. 36, 40 (5) (456 SE2d 631) (1995), citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U. S. 614, 626 (II) (105 SC 3346, 87 LE2d 444) (1985) (“the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate the dispute”). See also OCGA § 13-2-3; Oglethorpe Power Corp. v. Hartwell Energy Ltd. Partnership, 244 Ga. App. 859, 863 (537 SE2d 372) (2000). Our review of the contract confirms that the parties agreed to submit disputes arising out of the contract to arbitration. The language of paragraph 8 unambiguously expresses the parties’ intent.

The language contained in paragraph 9 regarding termination of the contract does not affect our analysis of whether paragraph 8 is enforceable. Contrary to the Saturnas’ argument, the two paragraphs are not contradictory. Paragraph 9 provides methods for seeking redress to Bickley in the event that the contract has been terminated. In this case, Bickley has not sought to employ the remedies provided in paragraph 9 and has not alleged that the contract has been terminated; rather, each party contends the other has breached the contract.

Decided October 24, 2001.

James, Bates, Pope & Spivey, David A. Pope, for appellants.

Sell & Melton, Edward S. Sell III, Kevin T. Brown, for appellee.

Furthermore, we do not find that the contract is unconscionable because it provides additional methods of redress to Bickley. The record shows that the parties bargained for the contract and signed it, demonstrating their intention to be bound by its terms. In Crawford v. Results Oriented, 273 Ga. 884, 885 (548 SE2d 342) (2001), the Supreme Court affirmed our holding that a contract containing an arbitration clause was not unconscionable. The Supreme Court cited an Alabama case, Green Tree Financial Corp. &c. v. Vintson, 753 S2d 497 (Ala. 1999), for the proposition that an arbitration provision was not unconscionable because it lacked mutuality of remedy. Crawford, supra. Additionally, in the underlying case affirmed by the Supreme Court, we stated that “[a]s we have held, the mere existence of an arbitration clause does not amount to unconscionability. Further, lack of sophistication or economic disadvantage of one attacking arbitration will not amount to unconscionability.” Results Oriented v. Crawford, 245 Ga. App. 432, 441 (1) (c) (538 SE2d 73) (2000), aff’d, supra. Thus, the fact that Bickley had additional means of redress available did not render the contract unenforceable due to unconscionability.

“Georgia courts are required to uphold valid arbitration provisions in contracts.” Bishop Contracting Co. v. Center Bros., Inc., 213 Ga. App. 804, 805 (1) (445 SE2d 780) (1994). Therefore, we affirm the trial court’s order compelling the parties to submit their dispute to arbitration.

Judgment affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1465.
    A01A1588.
    CARROLL v. THE STATE. ADGER v. THE STATE.
    (555 SE2d 807)
   Ruffin, Judge.

A jury found co-defendants Eddie Lee Carroll and Herman Adger guilty of selling cocaine and possessing cocaine with intent to distribute. Both defendants moved for a new trial, which the trial court denied, and these appeals followed. In Case No. A01A1465, Carroll challenges the sufficiency of the evidence, claims that the trial court made a charging error, and argues that he was denied effective assistance of counsel. Adger appeals in Case No. A01A1588, alleging the same charging error and also ineffective assistance of trial counsel. Because both appeals involve the same operative facts, we have consolidated them for review, and for reasons that follow, we affirm.

“On appeal, the appellant[s] no longer enjoy[ ] the presumption of innocence, and we view the evidence in a light most favorable to the verdict.” Viewed in this manner, the evidence shows that on August 28, 1998, the Chatham County Counter Narcotics Team conducted a “buy-bust” drug operation in Savannah. During that operation, Adger approached undercover agent Gerald Dillard on the street. According to Dillard, Adger asked him if he was “straight,” which — in “street language” — referred to whether Dillard had any drugs. Dillard responded, “no, I’m looking for something.” Adger inquired what Dillard was looking for, and Dillard replied, “a 15 piece, I don’t have but $15.” Adger stated, “my boy’s got some over here,” and he led Dillard to a wooden fence at the end of a nearby street.

Adger knocked on the fence, and Carroll appeared from behind the enclosure. At Adger’s request, Dillard gave Adger the $15, which consisted of a $10 and a $5 bill bearing serial numbers that Dillard had recorded before the undercover operation began. Adger handed the money to Carroll and said, “let me get something for 15.” Carroll then went back inside the fence. Dillard asked Adger why Carroll left. Adger replied, “he’s good, he’s gonna bring it to me.”

Sometime later, the fence gate opened, and Carroll reappeared with a woman named Virgie Robinson. As Dillard and Adger walked toward the fence, Dillard saw Carroll hand Robinson a substance, then retreat back inside the fence. Robinson gave Dillard the substance, which the crime lab identified as cocaine.

Police arrested Adger shortly thereafter. Carroll, however, left the area before arresting officers arrived on the scene. Dillard and another officer later saw Carroll walking out of a nearby liquor store with a bag of potato chips and arrested him. Dillard searched Carroll for the money used in the buy-bust operation, but found no money. Officers then took Carroll back into the liquor store, where the manager verified that Carroll had purchased potato chips. Among the currency in the liquor store cash register, officers found the $5 bill used by Dillard in the buy-bust operation.

Both Carroll and Adger testified at trial. According to Adger, Agent Dillard approached him on the street and asked whether he was “straight.” Adger responded that he did not have any drugs. At that point, an individual identified only as “Bubba” pulled up in a car. Adger spoke with Bubba and told Dillard that Bubba might be able to obtain some drugs. Dillard, Adger, and Bubba then walked toward Carroll’s fence. Adger testified that he accompanied the two men only because Dillard was scared to follow Bubba by himself. Adger further testified that Dillard gave the money to Bubba, who called for Robinson as they approached Carroll’s yard. Bubba left with the money, and Robinson gave Dillard a piece of cocaine. In Adger’s view, only Dillard, Bubba, and Robinson participated in the actual drug transaction.

Carroll’s testimony also included a reference to Bubba. Carroll testified that Dillard, Adger, and Bubba appeared outside his fence, but he told them to leave, never took any money from Adger, and did not give any drugs to Robinson.

Case No. A01A1465

1. In his first enumeration of error, Carroll argues that the evidence did not support his convictions. We disagree. The State presented evidence that Carroll took Agent Dillard’s money from Adger, left the scene, then returned with Robinson. He handed a substance later identified as cocaine to Robinson, who gave the cocaine to Agent Dillard. Furthermore, Carroll was arrested after making a purchase at a liquor store, where officers recovered a $5 bill used in the drug transaction. Based on this evidence, a rational trier of fact could find Carroll guilty beyond a reasonable doubt of selling cocaine and possessing cocaine with the intent to distribute. Although Carroll denied involvement in the drug transaction, “[t]he jury was authorized to resolve the conflicts in the evidence and reject [Carroll’s] testimony.”

2. Carroll also argues that the trial court improperly charged the jury on conduits and procuring agents. The trial court instructed jurors on parties to a crime, stating: “[E]very party to a crime may be charged with and convicted of commission of the crime. A person is a party to the crime only if that person directly commits the crime or intentionally helps in the commission of the crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime.” It further charged “that under Georgia law, one may not act as a conduit or procuring agent and thus escape culpability or blame as a seller.”

When reviewed for error, “the charge to the jury is to be taken as a whole and not out of context.” The charge must be sufficiently clear to be understood by jurors of ordinary intelligence. On appeal, Carroll does not claim that the court’s conduit/procuring agent charge misstated the law. Instead, he argues that the charge unnecessarily particularized the general charge on parties to a crime and could have been “interpreted by the jury as an intimation of opinion by the court.” He likens this charge to the jury instruction on “flight,” which the Supreme Court disapproved in Renner v. State, in part because a jury might interpret a flight charge as an expression of opinion that “there is evidence of flight and that the circumstances of flight imply the guilt of the defendant.”

Carroll has made no effort to explain how the conduit/procuring agent charge could be viewed as expressing the trial court’s “opinion.” In Renner, the Supreme Court determined that jurors could interpret a flight charge as expressing the trial court’s opinion that flight implies guilt because “the trial court does not give specific charges on other circumstances from which guilt or innocence may be inferred.” Carroll has not suggested a similar way in which the conduit/procuring agent charge intimates the trial court’s opinion, and we find none.

Read as a whole, the court’s instructions properly charged jurors on parties to a crime. The trial court gave the general definition of parties, then added a statement about conduits and procuring agents. This additional statement could be viewed as unnecessary or repetitive. Considering the entire charge, however, we cannot conclude that any unnecessary or superfluous language in the conduit/ procuring agent instruction harmed Carroll. Accordingly, this enumeration of error presents no basis for reversal.

3. Finally, Carroll argues that he did not receive effective assistance of trial counsel. Following the hearing on Carroll’s motion for new trial, the trial court rejected this claim. On appeal, we will affirm this ruling unless it is clearly erroneous.

Carroll argues that his trial counsel rendered ineffective assistance by failing to move for a mistrial after a potential juror stated during voir dire that Carroll had been incarcerated. To succeed on this claim, Carroll must show that his trial counsel’s performance was deficient and that the deficiency prejudiced his defense. The prejudice prong requires Carroll to establish “a reasonable likelihood that, but for counsel’s error [ ], the outcome of the trial would have been different.”

The record shows that, during voir dire, the prosecutor asked the panel whether anyone knew Carroll. A venire member employed by the sheriff’s department responded, “[w]hile he was incarcerated, while he was incarcerated.” At the request of Carroll’s counsel, the trial court excused the potential juror for cause. Carroll contends, however, that counsel also should have moved for a mistrial. According to Carroll, the prospective juror’s reference to his incarceration tainted the jury panel, presumably by placing his character at issue.

At the new trial hearing, trial counsel testified that he did not move for a mistrial because he thought such a motion would be frivolous. Given the circumstances of this case, we agree. In Taylor v. State, our Supreme Court indicated that “mere mention that a defendant has been in jail falls short of placing his character at issue.” The prospective juror in this case simply stated that he knew Carroll while Carroll was incarcerated. Under Taylor, that statement did not place Carroll’s character at issue or taint the proceedings. Any motion for mistrial or to disqualify the jury on this basis, therefore, likely would have been frivolous. Failure to make a frivolous motion does not constitute deficient performance.

Furthermore, even if counsel’s performance could be viewed as deficient, we find no prejudice. In light of the significant evidence against Carroll, including Agent Dillard’s eyewitness testimony and the $5 bill recovered from the liquor store, there is no reasonable likelihood that the potential juror’s comment contributed to the guilty verdict. Accordingly, we find no clear error in the trial court’s determination that Carroll received effective assistance of counsel.

Case No. A01A1588

4. Adger also claims that he was denied effective assistance of counsel. His argument focuses on three errors allegedly made by trial counsel. As discussed below, none of these claimed errors supports reversal.

(a) Adger first argues that trial counsel failed to adequately explain to him the concept of parties to a crime. Adger testified at the new trial hearing that had he known even his version of events involving “Bubba” could sustain a conviction as a party to the crime, he would have accepted the State’s pre-trial plea offer. Trial counsel appeared at the hearing and disputed Adger’s claim. According to counsel, he explained to Adger that regardless of whether Adger took Dillard directly to Carroll or told Dillard to talk to Bubba about purchasing drugs, he could be found guilty as a party to the crime. Trial counsel further testified that he encouraged Adger to take the State’s plea offer, but Adger refused.

The parties presented conflicting testimony at the new trial hearing. As the factfinder at that hearing, the trial court was authorized to believe trial counsel over Adger. The trial court did not clearly err, therefore, in refusing to find ineffective assistance of counsel on this ground.

(b) Adger next asserts that trial counsel, in essence, forced him to testify at trial, even though he did not want to take the stand. According to Adger, trial counsel told him that he needed to testify so that the jurors would understand his side of the story. In Adger’s words: “I told [counsel] I didn’t want to take the stand. He said that would be the only way is [sic] for me to get up here and testify.” Again, trial counsel offered conflicting testimony. Counsel stated that he advised Adger against testifying because he did not want Adger to admit any involvement in the drug transaction. Adger, however, was adamant about telling the jury “ £the truth.’ ”

“Whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel.” Given trial counsel’s testimony that, although he advised Adger not to testify, Adger insisted on taking the stand, we find no clear error in the trial court’s decision to reject Adger’s claim on this ground.

(c) At the new trial hearing, Adger’s mother and ex-wife asserted that they would have testified about Adger’s efforts to support his family if trial counsel had called them as witnesses at the sentencing hearing. Specifically, his ex-wife would have testified that Adger provided for his children. Adger’s mother, with whom he lived, would have stated that Adger did not “freeload” and that he helped take care of his grandmother, who also lived in the house. Adger argues that trial counsel’s failure to present this mitigating evidence constituted deficient performance.

According to trial counsel, however, Adger specifically told him not to contact his ex-wife. In light of this testimony, the trial court committed no error in refusing to find a deficiency in counsel’s failure to call Adger’s ex-wife as a mitigating witness. Trial counsel further testified that when he discussed possible mitigating evidence with his client, Adger never mentioned that he aided his mother or grandmother in any way. Once again, the trial court could have reasonably found no deficiency here.

Furthermore, even if trial counsel’s failure to call these witnesses could be viewed as deficient performance, Adger has not shown prejudice. Although the trial court sentenced Adger to a mandatory 30-year term, the court probated 18 years of that sentence, leaving him with 12 to serve. Adger insists that the trial court would have probated a greater portion of that sentence if his mother and ex-wife had testified at the sentencing hearing. He has pointed to no evidence, however, that the proffered mitigating testimony would have altered the trial court’s sentence. Accordingly, Adger has not shown that trial counsel’s failure to present this evidence in mitigation prejudiced him.

(d) Adger alleges that trial counsel committed a litany of other errors. He makes no effort, however, to show how these claimed errors prejudiced his defense. In fact, he admits on appeal that “[d]ue to the extremely strong evidence supporting the jury’s verdicts of guilty . . . [these errors] may fall short of establishing the prejudice prong.” Because Adger has not met his burden of showing prejudice, these alleged errors by trial counsel present no basis for reversal.

5. Like Carroll, Adger enumerates as error the trial court’s conduit/procuring agent charge. We have already found that the trial court did not err in giving this charge. Accordingly, this enumeration of error lacks merit.

Decided October 24, 2001

Thomas J. Gustinella, for appellant (case no. A01A1465).

Jackson & Schiavone, Steven L. Sparger, for appellant (case no. A01A1588).

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgments affirmed.

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

       At sentencing, the trial court merged the two counts.

        Strange v. State, 250 Ga. App. 735, 736 (552 SE2d 899) (2001).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Parker v. State, 248 Ga. App. 748, 749 (1) (548 SE2d 634) (2001).

       Id.

       (Punctuation omitted.) Roberson v. State, 236 Ga. App. 654, 655 (1) (a) (512 SE2d 919) (1999).

       Id.

       See Diana v. State, 164 Ga. App. 779, 780 (1) (298 SE2d 281) (1982) (“The theory that one may act as a conduit or procuring agent of the purchaser and thus escape culpability as a seller has been considered and rejected by this court”).

       260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990).

       Id.

       See Salahuddin v. State, 241 Ga. App. 168, 169-170 (1) (525 SE2d 422) (1999) (physical precedent only); Roberson, supra at 656; see also Murray v. State, 253 Ga. 90, 93 (4) (317 SE2d 193) (1984) (“ ‘A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights.’ ”).

        Potter v. State, 273 Ga. 325, 326 (540 SE2d 184) (2001).

       Id. at 325.

       Id. at 325-326.

       272 Ga. 559 (532 SE2d 395) (2000).

       Id. at 561 (2) (c); see also Johnson v. State, 247 Ga. App. 157, 165-166 (14) (543 SE2d 439) (2000).

       The proper remedy for an error during jury selection is disqualification of the jury, not a mistrial. Nelson v. State, 199 Ga. App. 487, 488 (4) (405 SE2d 310) (1991).

        Lane v. State, 250 Ga. App. 160, 161 (1) (549 SE2d 468) (2001).

       See Moore v. State, 242 Ga. App. 249, 250-251 (1) (a) (529 SE2d 381) (2000); see also Sweeder v. State, 246 Ga. App. 557, 561-562 (5) (541 SE2d 414) (2000) (denial of mistrial not error because, given “overwhelming nature and sheer volume of the evidence against [the defendant], it [was] extremely doubtful that a single reference to [the defendant’s] incarceration would have materially influenced the jury’s decision whether to acquit or convict”) (punctuation omitted).

        Moore, supra.

        Conger v. State, 245 Ga. App. 399, 401 (3) (b) (537 SE2d 798) (2000).

       (Punctuation omitted.) Potter, supra at 327-328.

       See Thigpen v. State, 248 Ga. App. 301, 303 (c) (546 SE2d 60) (2001); Barber v. State, 236 Ga. App. 294, 299 (5) (512 SE2d 48) (1999).

       See Conger, supra at 401 (3) (a).


author: JOHNSON, Presiding Judge.

text:
    A01A1974.
    MILTON v. THE STATE.
    (555 SE2d 818)
   JOHNSON, Presiding Judge.

This is an appeal from the denial of a motion to suppress cocaine. Because the appellant has enumerated an error not raised in the trial court, we must affirm the denial of the motion.

Police officers arrived in an area known for illegal drug sales to arrest a suspected drug dealer. As the uniformed officers were arriving, an undercover detective saw Fredrick Milton, a convicted drug dealer, flee from the area in his car. The detective could not keep up with Milton’s car because it was traveling at a speed well over the speed limit of 35 mph. The detective called on his radio for assistance.

A nearby officer in a marked patrol car heard the call and then saw Milton’s car speed past him. The officer followed the car, which was traveling at speeds between 75 and 80 mph, in a 45-mph speed zone. The officer activated his police car’s blue lights and stopped Milton’s car.

Another police officer who had also heard the radio call for help arrived at the scene of the stop. He asked Milton to get out of his car and if he had any drugs or weapons. Milton said he did not have anything illegal, and the officer then asked if he could search him. Milton told the officer to go ahead and search him. As the officer patted down Milton’s outer clothing he felt something in his front left pants pocket. The officer reached into the pocket and removed a clear plastic bag containing both powder and hard substances that later proved to be cocaine. The officer arrested Milton, who was charged with possessing cocaine and speeding.

Milton moved to suppress the cocaine, and the trial court held a suppression hearing at which the three police officers involved in Milton’s arrest testified. After their testimony, Milton’s attorney made two arguments to the court in support of the suppression motion. The attorney first argued that the police stop of Milton’s car for speeding was pretextual because the real purpose for the stop was to search Milton for drugs. The attorney’s second argument was that the police arrested Milton without probable cause. The trial court denied the motion to suppress, finding that the police properly stopped Milton for speeding and that the stop was not pretextual.

Thereafter, Milton agreed to be tried before the judge sitting without a jury and stipulated that the trial judge should consider the evidence introduced at the suppression hearing. Based on the stipulated evidence, the judge found Milton guilty of possessing cocaine and speeding. Milton appeals from his convictions, challenging the denial of his motion to suppress.

In his sole enumeration of error, Milton does not assert either of the suppression arguments that he raised in the trial court, but instead argues that the trial court erred in denying the motion to suppress because the police investigation for drugs went beyond the permissible scope of a mere traffic stop for speeding. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” Because we are limited to reviewing only those grounds ruled upon by the trial court, Milton’s appeal on a ground entirely different from those raised below presents nothing for our consideration.

Moreover, it is apparent from our review of the record that the trial court correctly rejected the arguments made by Milton at the suppression hearing. Based on the uncontradicted testimony of the three police officers, the trial court was authorized to find that the police lawfully stopped Milton for speeding, and thereafter he consented to the search which led to the discovery of the cocaine in his pocket. Under these circumstances, the trial court did not err in denying Milton’s motion to suppress.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided October 24, 2001.

J. Alfred Johnson, for appellant.

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

       (Citation and punctuation omitted.) Goins v. State, 184 Ga. App. 452, 454 (361 SE2d 853) (1987).

       See Hill v. State, 224 Ga. App. 208, 209-210 (2) (480 SE2d 256) (1997) (argument on appeal not considered because it differed from the argument appellant raised before the trial court in support of his motion to suppress).

       See Cotton v. State, 237 Ga. App. 18, 19-20 (513 SE2d 763) (1999) (trial court correctly denied motion to suppress where officer was authorized to stop appellant’s vehicle for traffic offense and then obtained consent to search vehicle).


author: Eldridge, Judge.

text:
    A02A0060.
    WILLIAM L. BONNELL COMPANY, INC. v. COWETA COUNTY BOARD OF TAX ASSESSORS.
    (556 SE2d 159)
   Eldridge, Judge.

The Coweta County Board of Tax Assessors granted freeport ad valorem tax exemption for 1993, 1994, and 1995 to the William L. Bonnell Company, Inc., a manufacturer of aluminum extrusion. The Board subsequently reassessed the value of inventory and finished products held for sale returned in the Application for Inventory/Free-port Exemption of Bonnell by changing the method of accounting for inventory valuation from “last-in, first-out” (LIFO) used by Bonnell to “first-in, first-out” (FIFO) when the application failed to disclose the accounting method used. The use of such latter assumption forced up artificially the value of the raw materials, inventory, and partially finished goods above the freeport application. The Board refused to allow Bonnell to amend the freeport application in proportion to the resulting increase in value of the inventory. Bonnell appealed the reassessment to the Superior Court of Coweta County. On cross-motions for summary judgment based upon a joint stipulation of facts, the issues were submitted to the trial court, which denied Bonnell’s motion and granted the Board’s. We reverse, because the freeport exemption requires no particular accounting method to be utilized as to partially finished goods, finished goods, and raw material, but does mandate that manufactured finished goods stored in Georgia for shipment outside the state by someone other than a Georgia manufacturer use FIFO. See OCGA § 48-5-48.2 (b) (3).

1. (a) A freeport exemption for raw materials, partially finished goods, and inventory of finished goods held by the original manufacturer or producer does not mandate any particular accounting method to be used for valuation. OCGA § 48-5-48.2 (b) (1), (2). So long as the method employed by the taxpayer is consistent with its other accounting method and fairly and accurately reflects values, the taxpayer is free to select either the LIFO or FIFO assumption or any other method of inventory evaluation. However, as to finished goods stored in Georgia for shipment out of state to someone other than the Georgia manufacturer, the Act mandates that the exemption “shall be determined based on application of a first-in, first-out method of accounting for the inventory.” OCGA § 48-5-48.2 (b) (3).

The statute is plain and unambiguous that inventories of raw materials, finished goods, and partially finished goods require no particular method of inventory accounting. OCGA § 48-5-48.2 (b) (1), (2). Words used in a statute should be given their ordinary and common meaning where the statutory language is plain and unambiguous, as here. Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 523 (521 SE2d 456) (1999). All words of a statute should be given effect, and a statute should not be construed so as to render any language meaningless or mere surplusage. Cobb County Bd. of Tax Assessors v. Morrison, 249 Ga. App. 691, 693 (548 SE2d 624) (2001); Whirl v. Safeco Ins. Co., 241 Ga. App. 654, 655 (527 SE2d 262) (1999). Where in one part of the statute no accounting method is specified, but in a subsequent section an accounting method is specified, this indicates the intent of the General Assembly to allow the taxpayer to choose any generally accepted accounting method where not specified, because the General Assembly could have mandated that FIFO was to be used with all types of inventory as indicated by the specification in the later section. See generally Ray M. Wright, Inc. v. Jones, supra at 522-523. Flexibility in the taxpayer’s accounting methods, except as to finished goods held for shipment outside the state, was the intent of the General Assembly as to the accounting method for inventory evaluation. “Revenue statutes are to be construed strictly so as to resolve doubt in favor of the taxpayer, and their meaning is not to be extended by implication.” (Citations and punctuation omitted.) Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 724 (1) (368 SE2d 326) (1988). Accord Cobb County Bd. of Tax Assessors v. Morrison, supra at 694. “Neither the superior court nor this court is authorized to construe a revenue statute so as to confer an authority upon the Board by implication.” Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., supra at 726 (1). Accord Cobb County Bd. of Tax Assessors v. Morrison, supra at 693. Thus, the Board lacked the authority to require that a particular accounting method for inventory evaluation be used by the taxpayer on the personal property return or the application for freeport exemption through office procedure. Office procedure for the county board of tax assessors, where there exists underlying statutory authority to act, can define the statutory meaning of terms like “filed” when such term is contained in the statute without definition, because the Board is granted the general authority to implement the Act within certain statutory parameters. DeKalb County Bd. of Tax Assessors v. Lanier Worldwide, 208 Ga. App. 435, 436-437 (1) (430 SE2d 595) (1993). However, when the statute contains no provision for waiver of free-port exemptions to applications filed beyond a certain date, the Board lacked statutory authority to create a waiver through office procedure. See TEC America v. DeKalb County Bd. of Tax Assessors, 170 Ga. App. 533, 536-538 (2) (317 SE2d 637) (1984). Thus, the Board through-its office procedure lacked statutory authority to mandate that FIFO be utilized in an application for freeport exemption which would cause a waiver of a timely filed application for freeport exemption with a schedule of all inventory. Id. at 536-538 (2).

Fair market value of inventory is a question of fact and not a mere accounting assumption made by the assessors in lieu of actually making a factual determination of the value of each item of inventory; cost of the inventory based upon a FIFO assumption may be a short way to determine value but may not accurately reflect value, because of inflation, deflation, damage, deterioration, style change, or obsolescence. See generally J. C. Penney Co. v. Richmond County Bd. of Tax Assessors, 233 Ga. App. 399 (504 SE2d 201) (1998).

While we agree that property must be assessed at fair market value, OCGA § 48-5-6, “cost” is not a concept foreign to such valuation. What the taxpayer was willing to pay for the personalty, its cost to him, is one of the factors from which fair market value may be determined, if not the primary factor, because such figure is fixed, while other factors may deviate upward or downward from such figure based upon the fair market. . . . For ad valorem tax purposes, fair market value is not the retail value to the taxpayer, but the current wholesale value adjusted for the fair market; thus, the taxpayer’s cost may be adjusted upward, downward, or remain the same to reflect the “wholesale market” as it determines the fair market value of the tangible personalty in the taxpayer’s possession at that economic moment in time.

Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 103-104 (3) (491 SE2d 173) (1997). See also J. C. Penney Co. v. Richmond County Bd. of Tax Assessors, supra at 401.

(b) LIFO makes an accounting assumption for income purposes where it is applied to items of inventory that, as an item is sold from inventory, the purchaser buys the newest item, i.e., the last-in item of inventory; thus, the sale becomes the first-out. Where prices increase through inflation or for other reasons, the newest and most expensive items with the higher cost basis move into and out of inventory first.

Under any method of inventory, “costing” the closing inventory is a necessary step in the calculation of taxable income. FIFO and LIFO are alternative accounting methods for arriving at this cost. LIFO assumes that the last articles purchased during the year were the first ones sold, so that articles left in the inventory at the end of the year were the first ones purchased. FIFO (first-in, first-out) assumes the converse, that the earliest article purchased was the first one sold, so that articles left in the inventory at the end of the year were the last ones purchased. Obviously neither FIFO nor LIFO corresponds with actual fact, although the FIFO assumption seems more logical in the normal course of business operations. In a period of stable prices the application of either theory renders the same result. But during an inflationary period, LIFO is distinctly advantageous to the taxpayer, for, in effect, he is not required to include as profit increases in value of inventory. This illustrates the real purpose of the methods to reflect accurately what normally is considered as profit during inflationary and deflationary periods in the economy. . . . The argument is based on the fact that FIFO and LIFO deal in terms of specific articles of merchandise and thus appear to be inapposite to the retail method of inventory valuation, which deals in terms of dollar values. But this seeming inappropriateness is superficial when one considers the purpose of the theories — accurate reflection of profit.

(Emphasis supplied.) R. H. Macy & Co. v. United States, 255 F2d 884, 885-886 (2nd Cir. 1958). We have been in an inflationary economy, although inflation is now relatively small, for many years. “Neither FIFO nor LIFO corresponds with actual physical inventory.” (Emphasis supplied.) Commr. of Internal Revenue v. Joseph E. Seagram & Sons, Inc., 394 F2d 738, 741 (2nd Cir. 1968). Thus, inflation, though small, distorts inventory value under FIFO; therefore, taxpayers use LIFO for income accounting to avoid phantom income in sale of goods.

The inventory method of accounting, including the use of LIFO inventories, is subject to conditions prescribed by statute and the Treasury Regulations. According to Section 471, the basic requirements for taking inventories are that they must conform to the best accounting practice and must clearly reflect the taxpayer’s income. [Cit.] The Regulations provide that to clearly reflect income, the taxpayer’s inventory practice must be consistent from year to year and that consistency is given a greater right than any particular method or basis for inventory valuation (Treas. Reg. § 1.471-2 (b)).

Id. at 741. Thus, LIFO and FIFO are accounting methods to accurately determine income for tax purposes and not methods to accurately determine the inventory value at any moment in time, because even with slight inflation, FIFO will distort the value of existing inventory. Therefore, the older inventory with the lower cost basis remains in inventory and has an overall lower cost basis or value. When FIFO is used as an accounting assumption, it is assumed that the first item in inventory, the oldest item, is sold first, i.e., first-in and first-out, so that the existing inventory remaining will always be the most recently purchased replacement item, which will generally be more expensive than the item that it replaced. The net effect of using the FIFO assumption for ad valorem tax purposes is that existing inventory will have a higher value. To switch from LIFO to FIFO creates an artificial increase in the valuation, because it goes from the lowest cost basis for the inventory to the highest cost basis, assuming that the costlier inventory remains unsold. Likewise, to switch from FIFO to LIFO creates a decrease in value of inventory.

The Georgia income tax statute “adopts the Federal method of calculating net income under the Federal statute as the State’s method of accomplishing” the determination of taxable income for State taxation purposes; thus, Georgia income tax laws piggyback onto the federal income tax laws. Head v. McKenney, 61 Ga. App. 552, 555 (6 SE2d 405) (1939); see also OCGA § 48-7-27 (a). Thus, Georgia is guided by federal cases which deal with income determination. When income or profits are calculated based upon one of these inventory valuation methods, to shift from one to the other can create either an accounting profit or loss on paper. For this reason, the Internal Revenue Service and the Georgia Department of Revenue require a sound business reason for any change from one method to the other. See OCGA § 48-7-27 (a); 26 USCS §§ 471; 472.

The purpose for the IRS allowing taxpayers like Bonnell to use LIFO was to afford relief against inventory profits generated in a rising market where cheaper inventory must be replaced with more expensive inventory, but the inflationary increase is not consumed by income taxes on the artificial profit. Mohawk Liqueur Corp. v. United States, 324 F2d 241 (6th Cir. 1963). Thus, Georgia’s income tax laws follow the federal revenue laws, regulations, and procedures so that consistency of a taxpayer’s inventory valuation is mandated by Georgia law as well. A local tax assessor acts arbitrarily and capriciously to impose a different accounting method on the taxpayer for ad valorem tax purposes, causing inconsistency in the taxpayer’s method of accounting, which is inconsistent with Georgia income tax laws.

If LIFO is an inappropriate method of inventory evaluation for purposes of freeport exemption, because it tends to undervalue the inventory in an inflationary economy, then it is for the General Assembly and not the Board to prohibit such use.

2. In fairness and justice, if a county tax assessor requires a change in valuation of inventory by use of a different accounting method, then the application of the freeport exemption must be allowed to be amended in proportion to the increase in value of the eligible inventory. See OCGA § 48-5-48.1 (c) (2) (B). The General Assembly intended for the freeport exemption to provide certainty, predictability, and exemption in order to encourage manufacturing and trade in the State by exemption from ad valorem tax on certain inventory. To refuse to allow retroactive amendment to a timely filed and valid freeport exemption constitutes the type of arbitrary and capricious conduct of local tax assessors from which the General Assembly intended to protect the qualified applicants. See OCGA § 48-5-48.1 (c) (2) (B).

In Georgian Art Lighting Design v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510 (439 SE2d 687) (1993), we held that, where the taxpayer is qualified and timely files a freeport exemption application and where the value of its inventory was understated, the taxpayer should be granted a proportional freeport exemption on the increased inventory, because the law does not favor either forfeitures or penalties such as waiver of the exemption although a statutory penalty for failure to report the full value was upheld. In this case, there was no failure to report by Bonnell; thus, Bonnell should receive a proportional freeport exemption.

Under Ga. L. 1997, p. 963, § 3 (OCGA § 48-5-48.1 (c)), it treats the “difference between fair market value of the inventory as reported and the fair market value finally determined to be applicable to the inventory for which the exemption is sought” as waived. However, such waiver applies to the “failure to file properly the application and schedule.” The plain and unambiguous language states: “failure to report . . . inventory for which such exemption is sought in the schedule provided ... in the application.” In OCGA § 48-5-48.1 (c) (2) (B), the Act makes clear that an amended freeport application can be filed: “The failure to file timely such application and schedule shall constitute a waiver of the exemption until the first day of the month following the month such application and schedule are filed properly with the county tax assessor.” This subsection of the statute dealing with waiver applies to unreported inventory and not to undervalued inventory. See generally Georgian Art Lighting Design v. Gwinnett Bd. of Tax Assessors, supra at 511. However, in this case, Bonnell did not fail to report inventory but in fact reported all inventory in the schedule. The tax assessors took issue with the accounting method used to value inventory returned in the application but found no underreporting of inventory, only undervaluing of inventory. Therefore, such provisions of the Act must be strictly construed against a forfeiture or penalty where the inventory was fully reported, although a LIFO method of inventory evaluation was used instead of FIFO and produced a lower value. Id.; TEC America v. DeKalb County Bd. of Tax Assessors, supra at 536 (1). Thus, the waiver provision does not apply to Bonnell under the stipulated facts of this case.

Decided October 24, 2001.

Alston & Bird, Timothy J. Peaden, Mary T. Benton, for appellant.

Glover & Davis, Jerry A. Conner, Asa M. Powell, Jr., for appellee.

Judgment reversed.

Smith, P. J., and Ellington, J., concur.


text:
    A01A1111.
    JACKSON v. THE STATE.
    (555 SE2d 835)
   Ruffin, Judge.

On February 3, 1992, a jury found Willie Jackson guilty of possession of cocaine with intent to distribute and possession of marijuana. Over six years later, the trial court granted Jackson’s request for an out-of-time appeal. Jackson subsequently filed a motion for new trial, which the trial court denied. Proceeding pro se, Jackson now appeals, arguing that he was forced to trial without an attorney, denied effective assistance of counsel, excluded from a critical stage of the proceedings, and denied his rights to due process and a public hearing. For reasons that follow, we affirm.

1. Jackson argues that the trial court erred in forcing him to trial without counsel. The record shows that less than one week before trial began, Jackson moved to relieve his court-appointed counsel, public defender Terry Everett, from the case and requested a new attorney. At a January 30, 1992 hearing on the motion, Jackson stated that he did not want Everett as his attorney because, in bis words, she “conspired with [the assistant district attorney] the last time to put me in jail.” He further indicated that he would not participate in the upcoming trial.

Noting that Jackson “waited so long” to file the motion to relieve, the trial court told Jackson that trial would begin “with or without” him. The court then relieved Everett from the case, but explained to Jackson that he would not receive new counsel: “[Y]ou still understand that you’ve got two options: Either I can get Ms. Everett back, or you can travel on your own.” Jackson responded that he would “travel on [his] own.” The court further stated:

[B]y relieving Ms. Everett or not accepting her representation ... I know you don’t agree with this, and you’ve got this on the record, that you want another attorney, you do understand, though, that because I’m not going to appoint another attorney, other than Ms. Everett at this late date, that in doing so, you are going to be going to trial without an attorney there to counsel you and answer your questions and represent you.

Jackson responded that he understood. Although the trial court appointed an attorney to assist him, Jackson represented himself throughout the trial.

An indigent defendant is “entitled only to reasonably effective assistance of counsel, not counsel of his own choosing,” and whether to grant a request to replace one court-appointed counsel with another falls within the trial court’s sound discretion. As we have found, “[i]f the defendant does not have a good reason for discharging his court-appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se.” Furthermore, “the functional equivalent of a knowing and voluntary waiver of appointed counsel” results when a defendant uses trial counsel’s removal and the request for new counsel “as a dilatory tactic.” In that situation, the trial court may conduct the trial with the defendant representing himself.

We find no error in the trial court’s decision to proceed at trial with Jackson representing himself. To justify Everett’s removal, Jackson asserted that she had “conspired” with the assistant district attorney when she represented Jackson on prior charges. Jackson admitted, however, that he prevailed on one of those charges at trial, and he presented no evidence to support his conspiracy theory. Moreover, given the timing of Jackson’s request for new counsel, the trial court could reasonably conclude that Jackson “was [trying] to use the discharge and employment of. . . counsel as a dilatory tactic,” which constituted a knowing and voluntary waiver of appointed counsel.

The record further shows that Jackson received ample warning about the consequences of removing Everett from the case. The trial court informed Jackson that if he refused to proceed with Everett, he would go to trial without an attorney to advise him, answer his questions, and represent him. At the hearing on Jackson’s motion for new trial, Everett testified that she also explained the dangers of self-representation to Jackson:

I . . . told him that this was a fairly complex case, there were issues that I thought a non-lawyer would have some problems with. And at that point in time talked him into letting me stay on the case because I indicated to him that I was sure probably what the Judge was going to do was indicate that he doesn’t get to pick and choose his attorney, that he could either represent himself or get whatever counsel that the Court had appointed.

Jackson understood that by refusing to continue with Everett, he was choosing to proceed without representation. Under these circumstances, Jackson “knowingly and intelligently waived his right to counsel after he was made aware of the dangers of self-representation.”

2. In three enumerations of error, Jackson asserts that he received ineffective assistance of counsel during the pretrial proceedings, when Everett and another public defender represented him. To succeed on this claim, Jackson must show that counsels’ performance during the preliminary proceedings was deficient and that the deficiency prejudiced his defense.

In violation of Court of Appeals Rule 27 (c) (2), Jackson has presented no argument or citation of authority to support these enumerations of error. Nevertheless, we will exercise our discretion to address Jackson’s claims, to the extent we are able to discern them. From the statement of facts in his brief, it appears that the allegedly deficient performance concerns the affidavit investigating officers used to obtain a search warrant in this case. According to Jackson, the affidavit was “void of both date and signature,” and thus procedurally defective. In Jackson’s view, pretrial counsel should have objected to the affidavit at his probable cause hearing and the hearing on his motion to suppress evidence seized during the search.

The record does not support Jackson’s challenge to the search warrant affidavit. At the suppression hearing, the State entered into evidence a copy of the original affidavit, which, as shown on its face, was signed and dated in the presence of a magistrate. Defense counsel noted at the hearing that, up to that point, she had seen only unsigned copies of the affidavit. In response to counsel’s comment, the executing officer explained that he made those copies for his file before he spoke with the magistrate and signed the affidavit. He further testified that the original affidavit submitted to the magistrate included the date and his signature.

Jackson has pointed to no evidence that police procured a search warrant in this case with an unsigned affidavit. To the contrary, the record contains a copy of the signed and dated affidavit, as well as the executing officer’s testimony acknowledging his signature. Given this evidence, we cannot find counsel deficient in failing to object to the affidavit. Furthermore, the record shows that defense counsel actually raised the affidavit issue at the suppression hearing. At that hearing, counsel challenged the search warrant’s overall validity and questioned the officer about the unsigned copies of the affidavit. Jackson may disagree with the trial court’s ultimate conclusion that the affidavit and the search warrant were valid. Nevertheless, he has not shown any deficiency in his attorneys’ performance during the pretrial proceedings.

3. In a separate enumeration of error, Jackson asserts that the State violated his due process rights when it “knowingly and intentionally entered the alleged original search warrant and supporting affidavit into evidence.” Although Jackson’s brief includes no argument or citation of authority supporting this enumeration of error, it apparently involves the “unsigned” search warrant affidavit. As discussed above, however, the record shows that the executing officer properly signed and dated the affidavit. Accordingly, we discern no constitutional violation in the State’s use of the original affidavit or search warrant as evidence.

4. In two enumerations of error, Jackson argues that the trial court violated his constitutional right to a public hearing. He asserts that the trial court improperly held the January 30, 1992 hearing on his motion to relieve counsel in chambers. He further claims that the court erred in conducting the hearing on his motion for new trial in a “makeshift courtroom” at the Houston County jail, because “[t]he public cannot walk freely off the streets into the jail.”

Even if the location of these hearings could be viewed as improper, we find no error. Jackson has not cited any record references showing that he objected to the location of either hearing, and our review of the hearing transcripts reveals no objection. “As a result, there is no basis to support his claim that the trial court violated his constitutional right to a public trial. Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.”

5. Next, Jackson claims that “[t]he trial court erred by excluding [him] from the January 30, 1992 hearing when the court held a conversation with counsel who represent [ed] one of the defendants who [was] arrested and charged along with [him].” The record shows that, following the hearing on his motion to relieve counsel, Jackson was removed from the court’s chambers. At that point, the trial court apparently considered appointing attorney William Jerles either to defend Jackson or help him during the trial. As Jerles began discussing the situation with the court and Everett, he realized that he represented one of Jackson’s co-defendants and thus could not participate in Jackson’s defense.

A criminal defendant has a right to be present “at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.” As defined by our Supreme Court, “a critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.”

Pretermitting whether such a conference could ever be a “critical stage,” we cannot conclude on this record that the colloquy between the trial court and an attorney the court considered appointing to aid Jackson qualified as a critical stage in the proceedings. The discussion did not implicate Jackson’s rights, defenses, or privileges, and it had no effect on the outcome of the case. Instead, the conversation simply established that Jerles could not participate in Jackson’s defense. Given the limited scope of this conference, we find no constitutional error.

6. Finally, Jackson asserts that Elizabeth Lane, the attorney who represented him at his motion for new trial hearing, was ineffective. Yet again, Jackson has provided no clear argument or citation of authority to support this enumeration of error. From the statement of facts in his brief, however, it appears that Jackson claims Lane failed to establish that several transcripts were incorrect or had been altered, failed to subpoena Jerles to testify at the motion for new trial hearing, “negated” or removed the ineffective assistance of pretrial counsel claim from his motion for new trial, and “conspired” with the State to hold the new trial hearing at the Houston County jail.

This appeal is Jackson’s first opportunity to assert that Lane, who initially represented him on appeal, was ineffective at the motion for new trial stage. We generally remand such claims to the trial court for an evidentiary hearing. Remand is not necessary, however, if “ ‘it appears as a matter of law that [Jackson] cannot satisfy the two-prong test to establish ineffectiveness of counsel.’ ” As discussed below, none of the errors allegedly committed by Lane materially affected the outcome of the proceedings in this case. These alleged errors, therefore, do not support reversal.

(a) At trial, an investigating officer testified that police seized a significant amount of money from Jackson. The officer further testified that drug dealers often carry large amounts of cash on them and have no legitimate employment. According to Jackson, the officer then improperly placed Jackson’s character into issue by testifying that Jackson told police that he was not employed. On appeal, Jackson claims that this improper testimony was deleted from the trial transcript, and he contends that Lane should have proven that someone altered the transcript.

A reasonable reading of the trial testimony shows that the transcript actually contains the allegedly deleted testimony. Asked why he considered the money seized from Jackson significant in this case, the officer testified:

[M]ost people want to [know] when I go to get their money off of them, why are you taking my money. And I tell them, you know, because drugs have been seized and you have the money on you. Usually I let them go ahead and offer an excuse. I ask, where are you employed at and typically I get the same response which is the same response [sic] which is he was not employed.

On cross-examination, Jackson asked the officer: “[W]hen you asked me a question when did I tell you that I wasn’t employed?” The officer responded: “During the time that I had contact with you there in the hallway, sir.” The officer thus testified that Jackson made a statement about being unemployed. That testimony has not been removed from the transcript, as Jackson claims.

Furthermore, even if the testimony was transcribed incorrectly, the trial judge clearly recognized that the officer testified about Jackson’s statement. After the officer’s testimony, the trial court expressed concern about “the alleged statement that [Jackson] made to [the officer] ... to the effect that [Jackson was] not employed.” As shown by the transcript, Jackson moved for a mistrial based upon the officer’s testimony. The trial court did not grant a mistrial, but gave a curative charge instructing the jury “to disregard in its entirety any testimony that [the officer] made concerning any alleged statements made by Mr. Jackson.”

Jackson has made no effort to show — or even articulate — how any errors in the transcript prejudiced his defense. The trial judge took action to cure any impropriety in the officer’s testimony, and Jackson has not enumerated the trial court’s action, or its refusal to grant a mistrial, as error. As a matter of law, Lane’s failure to determine whether the transcript was “altered” did not materially affect the outcome of this case.

(b) Jackson also claims that Lane should have established that the January 30, 1992 hearing transcript erroneously indicates that he had not yet been arraigned. According to Jackson, he was arraigned on January 17, 1992. Regardless of Jackson’s arraignment date, we find no ineffective assistance of counsel here. Once again, Jackson has provided absolutely no basis for concluding that this alleged error in the hearing transcript affected the outcome of the proceedings.

(c) Jackson contends that, although the January 30, 1992 hearing transcript states that he was absent during part of the hearing, he actually attended the entire proceeding. In Jackson’s view, Lane should have raised this discrepancy with the trial court.

According to the transcript, Jackson was removed from the hearing after the court discussed the motion to relieve with Jackson and counsel. The trial court then had a brief conversation with Jerles about possibly participating in Jackson’s defense. Elsewhere in his appeal, Jackson argues that the trial court erred in excluding him from this discussion with Jerles. By his own admission, therefore, Jackson was not present during the entire proceeding, as the transcript correctly shows. Furthermore, even if the transcript erroneously reported his absence, Jackson has made no effort to explain how that alleged error prejudiced his defense.

Decided October 25, 2001.

Willie B. Jackson, pro se.

Kelly R. Burke, District Attorney, for appellee.

(d) Similarly, no prejudice resulted from Lane’s failure to subpoena Jerles to testify at the motion for new trial hearing. As discussed in Division 5, the trial court’s conversation with Jerles did not violate Jackson’s constitutional rights. Accordingly, Jerles’ absence from the hearing did not affect the outcome of the proceedings.

(e) We find no merit in Jackson’s assertion that Lane “negated” his ineffective assistance of pretrial counsel claim from his motion for new trial. The trial court held a full hearing on Jackson’s new trial motion, including his claim that Everett and another public defender provided him ineffective assistance during the pretrial proceedings. At that hearing, both Lane and Jackson questioned Everett and the other public defender. The record completely undermines Jackson’s claim that Lane “negated” part of his motion for new trial.

(f) Finally, Jackson alleges that Lane “conspired” with the State to hold the hearing on his motion for new trial at the Houston County jail. He has not even tried to explain, however, how the location of this hearing possibly affected the outcome of the proceedings. Like Jackson’s other allegations, this claim presents no basis for reversal.

Judgment affirmed.

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

       The trial court appointed two different attorneys to represent Jackson on appeal. Dissatisfied with both attorneys, Jackson requested that he be allowed to proceed pro se. The trial court granted Jackson’s request.

       In criminal appeals, the State is required, as appellee, to file an appellate brief. See Court of Appeals Rule 13. Despite this requirement, the State failed to file a brief in this case. This practice is so frequent that perhaps the Court should begin to enforce its contempt authority for violation of this rule. The filing of a brief is required to assist the Court in reaching the correct decision.

       (Punctuation omitted.) Oliver v. State, 246 Ga. App. 32, 36 (2) (538 SE2d 837) (2000).

        Jefferson v. State, 209 Ga. App. 859, 861 (1) (434 SE2d 814) (1993). See also Bryant v. State, 268 Ga. 616, 617 (2) (491 SE2d 320) (1997) (citing Jefferson).

       (Punctuation omitted.) Id.

       Id.

       Id. See also Jones v. State, 272 Ga. 884, 886 (2) (536 SE2d 511) (2000).

       Id.

        Potter v. State, 273 Ga. 325-326 (540 SE2d 184) (2001).

       See Johnson v. State, 236 Ga. App. 61, 65 (3) (b) (510 SE2d 918) (1999) (“It is not deficient to fail to assert a frivolous objection.”).

       From the evidence presented at the suppression hearing, the trial court, as factfinder, was authorized to find the affidavit valid. See Dodgen v. State, 247 Ga. App. 453 (1) (543 SE2d 814) (2001) (trial court sits as trier of fact at hearing on motion to suppress).

       (Punctuation omitted.) Garren v. State, 220 Ga. App. 66, 67 (3) (467 SE2d 365) (1996).

       (Punctuation omitted.) Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001).

       (Punctuation omitted.) Id.

       Id. See also Ferrell v. State, 261 Ga. 115, 122 (12) (401 SE2d 741) (1991) (pretrial conference at which trial court questioned an attorney about “whether he could be retained and could represent the defendant” was not a critical stage).

        Setser v. State, 233 Ga. App. 822, 824 (2) (505 SE2d 798) (1998).

       Id.

       See id. at 825.

       (Emphasis supplied.)

       See id.

       See id.

       See id.

       See id.


text:
    A01A1401.
    MADDEN v. THE STATE.
    (555 SE2d 832)
   Ruffin, Judge.

Following a bench trial, John Madden was found guilty of driving under the influence with a blood alcohol concentration of 0.08 or more and violating the restrictions of his limited driving permit. On appeal, Madden asserts that the evidence was insufficient to support his DUI conviction because the State failed to properly authenticate the inspection certificate for the breath-testing device used to determine his blood alcohol concentration. In two enumerations of error, Madden also contends that his convictions should be reversed because the conduct occurred on a private drive rather than a public thoroughfare. For reasons that follow, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that on April 8, 2000, deputies from the Elbert County Sheriff’s Department received word that a driver was trying to run over a pedestrian at Country Manor Mobile Home Park. The deputies arrived at the mobile home park where residents identified Madden, who was still behind the wheel of a truck, as the driver. Deputy Brandon Dye stopped the truck and asked to see Madden’s driver’s license and insurance card. Madden produced a limited driving permit, which showed he was permitted to drive only to and from work and school.

Dye noticed a strong odor of alcohol coming from Madden, and Dye asked him to take a field breath test. When Madden tested positive for the presence of alcohol, he was arrested, read his implied consent rights, and taken to the police department to have his blood alcohol level tested using the Intoxilyzer 5000. The machine indicated that Madden had a blood alcohol level of 0.119, which is above the legal limit.

1. In his first enumeration of error, Madden contends that the trial court erred in considering the results of the breath test. According to Madden, the introduction of the Intoxilyzer 5000 inspection certificate in lieu of live testimony violated his constitutional right to confront witnesses against him. Madden also asserts that the inspection certificate was inadmissible because the State failed to lay a proper foundation for its admission.

Pursuant to OCGA § 40-6-392 (f), a certificate of inspection for approved breath-testing instruments, “[w]hen properly prepared and executed, . . . shall, notwithstanding any other provision of law, be self-authenticating, [and] shall be admissible in any court of law.” Madden argues that this statutory provision violates his constitutional right of confrontation. We note, however, that the Supreme Court addressed this exact issue in Brown v. State and decided otherwise. Accordingly, this alleged error presents no basis for reversal.

Madden also contends that the trial court erred in admitting the inspection certificate because the State failed to lay a foundation for its admission as a business record. We note, however, that Madden did not object to the admission of the certificate on this basis at the time it was admitted, and “[t]he failure to make a timely and specific objection is treated as a waiver.” It follows that this alleged error presents no basis for reversal.

2. In two enumerations of error, Madden asserts that he was improperly convicted because the driving infractions occurred on private rather than public property.

With respect to Madden’s DUI conviction, his assertion is merit-less. OCGA § 40-6-391 (a) (5) provides that it is unlawful for any person to “drive or be in actual physical control of any moving vehicle” with a blood alcohol level of 0.08 or more. The statute draws no distinction between driving on public roads versus private thoroughfares. Moreover, in Cook v. State, our Supreme Court concluded that “there is no immunity from prosecution for [this] crime because the act was committed on private property.” It follows that the trial court did not err in finding Madden guilty of DUI notwithstanding the fact that he was driving on private property.

Madden also argues that we should reverse his conviction for violating the restrictions of his limited license because the conduct occurred on a private thoroughfare. We find this argument equally unavailing.

Initially, we note that Madden bases his argument on OCGA § 40-6-3 (a) (2), which provides that

[t]he provisions of this chapter relating to the operation of vehicles refer to the operation of vehicles upon highways except [that] [t]he provisions of this chapter shall apply to a vehicle operated at shopping centers or parking lots or similar areas which although privately owned are customarily used by the public as through streets or connector streets.

According to Madden, under the “plain language” of this statute, he cannot be convicted of conduct that occurred on a private thoroughfare. What Madden fails to acknowledge, however, is that the statute’s plain language reveals that it applies only to “this chapter,” which is Chapter 6. Madden was charged with violating Chapter 5, which governs the licensing of drivers. Thus, Madden’s argument must fail.

Decided October 25, 2001.

Leverett & Daughtry, Billy I. Daughtry, for appellant.

Gary L. Aston, Solicitor-General, for appellee.

Moreover, we note that the Supreme Court’s reasoning in Cook extends beyond DUI cases. As that Court noted, given the “widespread use of motor vehicles! ] and the use of extensive private property for shopping centers and other purposes [,]” the State has a vested interest in protecting its citizens from those who abuse the privilege of driving. The law requiring that operators of motor vehicles be properly licensed was enacted for public safety. And those who drive without a license, or who violate the restrictions of a limited license, constitute a threat to public safety. Such danger is especially evident here, where Madden not only was driving in violation of his restricted license, but also was driving while under the influence of alcohol. It follows that the State was not barred from prosecuting Madden simply because his driving infractions occurred on private property.

Judgment affirmed.

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

       See OCGA § 40-6-391 (a) (5), which provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [tjhe person’s alcohol concentration is 0.08 grams or more.”

       268 Ga. 76, 77 (485 SE2d 486) (1997).

       See id.

       (Punctuation omitted.) Geoffrion v. State, 224 Ga. App. 775, 777 (1) (482 SE2d 450) (1997), overruled on other grounds, Mullins v. State, 270 Ga. 450 (511 SE2d 165) (1999).

       See Reynolds v. State, 230 Ga. App. 458 (1) (496 SE2d 474) (1998). See also Hall v. State, 241 Ga. App. 454, 462-463 (3) (525 SE2d 759) (1999); Turner v. State, 236 Ga. App. 592, 594 (1) (512 SE2d 699) (1999).

       220 Ga. 463 (139 SE2d 383) (1964).

       Id. at 464 (1).

       See Jarrard v. State, 195 Ga. App. 704-705 (1) (394 SE2d 555) (1990) (State permitted to prosecute habitual violator who was arrested while driving on private road).

       (Punctuation omitted.) Id.

       See Nelson v. State, 87 Ga. App. 644, 647 (75 SE2d 39) (1953) (“[t]o operate an automobile without first obtaining [a] license is . . .an infraction of our laws which are enacted for the public safety”).

       See Cook, supra; Jarrard, supra.


author: Pope, Presiding Judge.

text:
    A01A1422, A01A1423.
    In the Interest of A. A. et al., children (two cases).
    (555 SE2d 827)
   Pope, Presiding Judge.

In separate appeals, the mother and father of A. A. and C. O. A. appeal the termination of their parental rights to two of their children. Their cases will be consolidated for consideration on appeal. A. A. was bom on January 2, 1997, and C. O. A. was born on February 2, 1998.

1. As an initial matter, both parents contend the trial court improperly considered hearsay evidence. The State’s principal witness was Catherine Riggle, a caseworker assigned to the case one week prior to the hearing. According to the State, Lisa Futch, the prior caseworker who had been assigned to the case for 22 months, had recently been terminated. The State did not call Futch to testify nor introduce her case file. Instead, Riggle reviewed Futch’s casé file and prepared a 13- or 14-page summary. During the hearing, when Riggle began reading the summary, the parents objected on the grounds that it contained “hearsay, conclusions, [and] opinions,” and on the ground that it was not a business record. The court overruled the objection. In its final order terminating the parents’ rights, the court relied on a significant amount of information contained in the summary of Futch’s case file.

Introduction of this testimony was error because the summary was hearsay. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). The summary purported to represent the contents of the file, which purported to represent the opinions and observations of Futch and earlier caseworkers. Thus, the value of the evidence did not rest mainly on Riggle’s veracity. See E. H. Crump Co. &c. v. Millar, 200 Ga. App. 598, 601 (3) (409 SE2d 235) (1991) (summaries of business records specifically created for use in litigation are not admissible business records); Foster v. Nat. Ideal Co., 119 Ga. App. 773, 775 (3) (168 SE2d 872) (1969) (testimony summarizing business records that were not introduced is inadmissible). Accordingly, the inadmissible evidence cannot constitute clear and convincing evidence of present unfitness in a termination hearing. See In the Interest of M. L. P., 231 Ga. App. 223, 224-225 (498 SE2d 786) (1998) (inadmissible findings of citizens review panel which contained hearsay are not clear and convincing evidence of present parental unfitness). Compare In the Interest of A.T.H., 248 Ga. App. 570, 573-574 (2) (547 SE2d 299) (2001) (records of citizens review panel meetings admissible under OCGA § 15-11-56 (c)).

However, the Georgia Supreme Court has held that a trial court’s consideration of hearsay contained in such records will not constitute reversible error where “the evidence introduced at the hearing, not considering the report, was sufficient to support the findings and conclusions of the juvenile court judge.” In the Interest of M. A. C., 244 Ga. 645, 655 (261 SE2d 590) (1979).

In the Interest of J. T. S., 185 Ga. App. 772, 774 (2) (365 SE2d 550) (1988).

2. That brings us to the question of the sufficiency of the evidence. On appeal, we must determine

whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134 (1) (501 SE2d 296) (1998).

Excluding the testimony of Riggle from the summary of Futch’s case file, the evidence shows the following:

In August 1998, the children were found living in the most deplorable of conditions. The home contained leftover food, trash all over the floor, roaches, the smell of urine, dirty clothes everywhere, and even maggots in the kitchen sink. The children had insect bites, were very dirty, and had soiled diapers that had not been changed. Further, the couple had moved six times in eight months and had again been evicted. In response to these conditions, the children were placed in foster care with Futch assigned as the caseworker.

Another Department of Family & Children Services (DFCS) worker, assigned to monitoring T., an older sibling to the children, testified. Although she offered some testimony regarding the family, very little of the testimony reflected on how A. A. and C. O. A. were being treated. And the only such information offered was in the form of allegations that had not been confirmed or substantiated. She also testified that T, who still lives with the parents, was not up to date on recommended immunizations and that he had missed three scheduled appointments with the pediatrician in June 1998, July 1998, and March 2000.

Riggle testified that she had only one home visit with the parents and that occurred on the Monday prior to the hearing. On her one visit with the family, the house was clean, the power was on, there was enough living space for the family, including places to sleep. The children played, the parents hugged them, and Riggle saw no signs of abuse. The most recent case plan for the children had been issued on January 28, 2000. It provided that the parents must (1) maintain stable, clean, and comfortable housing with all utilities for three months; (2) pay child support; (3) maintain contact with their children; (4) cooperate with the agency; and (5) provide a permanent home for the children. Riggle had no admissible evidence that these goals had not been met during that period or at any time thereafter prior to the hearing. Riggle explained that the decision to seek termination had been made approximately one year before the hearing based on the facts available at the time. But she conceded that in the most recent six months, the parents had complied with everything the Department required, except for some of their support payments. Indeed, Riggle testified, “There has been compliance with [this most recent case plan], yes.”

Fredenal Millsap, a child support worker in the State child support office, also testified. He testified that the parents had voluntarily paid very little of the required support payments. At the time of the hearing, the mother owed $2,144.34 out of $3,052.80 assessed since December 1998. Millsap has twice filed for contempt, but each time, the mother registers for welfare to avoid the contempt action. The father owed only $804.04, but his employer had essentially bailed him out of jail by paying $2,200 of his child support debt after the father had been jailed for contempt.

The parents’ landlord testified that the parents were sometimes slow to pay their rent and that he has had to threaten dispossession, but eventually, they always paid. He also testified that the parents always kept the outside of the property clean and that on the four or five occasions that he went inside the home, the inside was clean as well. He never observed anything abnormal about the family.

The deposition of Dr. Wallace Kennedy was admitted into evidence. Kennedy, a psychologist, testified that he saw the parents twice, in October 1998 and October 1999, and the children once, in October 1999. He evaluated the parents to determine whether they had a treatable mental disorder that prevented them from being fit parents.

Kennedy found that the father is illiterate but that he understands math sufficiently to maintain a household and to administer medications properly. He has an IQ of 70, which Kennedy classified as almost retarded or somewhat limited. The father is extremely dependent and immature. Although Kennedy found no treatable mental disorder, he concluded that the father is “absolutely clueless with regard to parenting; how much kids eat, what do they eat, [and] what happens if you don’t change diapers,” although he could learn these things. The father’s condition did not change from 1998 to 1999.

On the other hand, he found the mother' to be “bright and capable, competent.” He concluded that “there is not a flicker of doubt that she could parent these two children even though these are somewhat difficult children.” She has no treatable mental disorder, although she has a character disorder in that she is self-absorbed and believes that she is entitled to things.

Kennedy testified that each child was difficult to manage. But he thought the parents should have one more chance, for six months, to show that they could care for the children. If they failed, he would recommend termination. The plan should include “increased visitation, longer periods of trial parenting, intrusive visits into the home to make sure that it is going okay.” Further, the children should have medical supervision and periodic psychological assessment. They were in danger of developing “impermanency syndrome.”

Although it appears that the parents have had marital problems, we find nothing in the record to indicate that the two were not married and living together at the time of the hearing.

OCGA § 15-11-94 (formerly § 15-11-81) establishes a two-step process for considering parental rights cases. The court is first required to determine whether there is clear and convincing evidence of parental misconduct or inability. If there is, the court considers whether termination of parental rights is in the best interest of the child.

Under the first step of the test,

[a] finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. [Cit.] Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981). Past unfitness alone is insufficient; clear and convincing evidence of present unfitness is required. In re A. J. M., 169 Ga. App. 477, 478 (313 SE2d 495) (1984).

Here, based on the facts in the record, we cannot conclude that there is clear and convincing evidence of present unfitness.

(a) The court must first determine that the child is deprived. OCGA § 15-11-94 (b) (4) (A) (i). When the juvenile court awarded temporary custody to DFCS, it found that the children were deprived and entered an order to that effect, which the parents did not appeal. Accordingly, the parents are bound by that finding. In the Interest of C J. V., 236 Ga. App. 770, 774 (513 SE2d 513) (1999).

(b) The court must next find that a lack of proper parental care or control is the cause of the deprivation. OCGA § 15-11-94 (b) (4) (A) (ii). Clearly that is so here. The children were found in the most deplorable conditions in August 1998, and there was no one to blame but the parents.

(c) The court must next find that there is a likelihood that the cause of deprivation will continue. OCGA § 15-11-94 (b) (4) (A) (iii). Evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their parents. In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998). But, again, clear and convincing evidence of present unfitness is required. This is where the evidence falls short of the standard.

The admissible testimony of Riggle showed that for the six months prior to the hearing, the parents had met the goals of the plan except for child support payments. There was no admissible evidence that this was not so. There was no admissible evidence that the parents were so inconsistent in their attempts to comply with the reunification plan that they could not be trusted to do so. The parents hugged their children, had room for them to live, and had lived in the same home for at least a year. The parents had taken care of the primary problem that brought the intervention in the first place; they have apparently learned how to clean and keep the children clean.

The rest of the evidence that reflects negatively on the parents does not amount to clear and convincing evidence that the cause of the original deprivation will continue.

For instance, as part of the justification for the decision to terminate, the trial court found that both parents have a medically verifiable deficiency of their physical, mental, or emotional health of such duration or nature as to render the parent unable to provide for the needs of the children. See OCGA § 15-11-94 (b) (4) (B) (i). Indeed, Dr. Kennedy testified that the father is almost retarded and “clueless” about being a parent. But, the court’s finding with regard to the mother is not supported by the record. Dr. Kennedy opined she had a character disorder but that “there is not a flicker of doubt that she could parent these two children even though these are somewhat difficult children.” He also said, “I can’t see any reason why these two parents can’t parent their own children even though these are high-demand children. [The mother] is bright enough and educated enough, and [the father] is compliant enough. That is, if somebody has a switch after him, as at work, he does pretty fair.” Accordingly, this finding with regard to the mother has no support in the record and is therefore clearly erroneous. Cf. In the Interest of A. G. I., 246 Ga. App. 85, 87-88 (2) (a) (539 SE2d 584) (2000) (diagnosis without evidence that the disorder renders the parent unable to provide for the needs of the child is insufficient).

Also, although the parents were behind on their support payments, see OCGA § 15-11-94 (b) (4) (C) (ii), delayed compliance with just one case plan goal is not always sufficient, standing alone, to justify termination. In the Interest of T.B., 242 Ga. App. 564, 569 (6) (b) (529 SE2d 620) (2000). In this case, at the time of the hearing the mother had had a job for six months, which suggests that the parents could make ends meet.

Decided October 25, 2001.

Gregory A. Voyles, for appellant (case no. A01A1422).

Vernita L. Lee, for appellant (case no. A01A1423).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Charles R. Reddick, for appellee.

Finally, one caseworker testified that the parents had missed several pediatrician appointments for T., the older sibling. Further, he was behind on his inoculations at one point. This type of evidence can be relevant to how the parents would treat A. A. and C. O. A. See OCGA § 15-11-94 (b) (4) (B) (v).

But, absent the inadmissible summary of Futch’s case file, there is simply not sufficient clear and convincing evidence upon which to base a termination order. See, e.g., In the Interest of K. J., 226 Ga. App. 303, 304-306 (1) (486 SE2d 899) (1997). See generally In the Interest of D. S., 217 Ga. App. 29, 30-31 (1) (456 SE2d 715) (1995) (physical precedent only). The guardian ad litem for the children came to the same conclusion. The guardian stated,

To the contrary, it appears that the parents have substantially complied with the Department’s most recent case plans and goals, including that the parents are currently maintaining a sanitary home, have bonded with the children, have cooperated with the agency, and have provided a permanent home for the children. The only exception appears to be being up to date on child support.

“While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” In the Interest of K. M., 240 Ga. App. 677, 680-681 (523 SE2d 640) (1999).

Judgments reversed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A1181.
    WILSON v. CARVER.
    (555 SE2d 848)
   Pope, Presiding Judge.

Robert F. Wilson sent an application for discretionary appeal by certified mail to this court on October 5, 2000. The order Wilson sought to appeal, which concerned child support and modification of visitation rights, was entered on September 5, 2000. The application Wilson presented to this court did not include a pauper’s affidavit or the prescribed filing fee. Wilson’s completed application containing the filing fee was filed on October 10, 2000.

This court dismissed Wilson’s application on October 31, 2000. Wilson filed a motion for reconsideration of that dismissal, arguing that extenuating circumstances precluded the timely filing of the application. This court granted the motion for reconsideration of the dismissal and granted the application.

Because this court has no jurisdiction over this matter, we must dismiss the appeal. OCGA § 5-6-4 provides that the costs for applications for appeals filed in the Court of Appeals shall be paid “at the time of the filing of the application.” The statute then provides: “Thé clerk is prohibited from receiving the application for appeal or the brief of the appellant unless the costs have been paid or a sufficient affidavit of indigence is filed or contained in the record.” See generally Sorrentino v. Boston Mut. Life Ins. Co., 206 Ga. App. 771, 772 (2) (426 SE2d 594) (1992).

The mandate of OCGA § 5-6-4 is reiterated in our Court of Appeals Rule 5 which states that the clerk “shall not file any matter unless the costs have been paid or a sufficient pauper’s affidavit has been filed.” Consistently, Court of Appeals Rule 4 states that “[a] document shall be deemed filed when it is physically delivered to the Clerk’s office, with sufficient costs, if applicable. . . .” The second sentence of Court of Appeals Rule 4 elaborates upon the provisions for the filing by registered or certified mail.

Wilson argues that the failure to file the filing fee does not warrant dismissal because this is not one of the three instances enumerated in OCGA § 5-6-48 (b). This argument lacks merit. Here, the completed application was not filed within 30 days of the entry of the order, as required under OCGA § 5-6-35 (d), and this court has no jurisdiction of an untimely application. Moreover, this court lacks the authority to grant an extension of time for the filing of an application for discretionary appeal. Rosenstein v. Jenkins, 166 Ga. App. 385 (304 SE2d 740) (1983); Court of Appeals Rule 16 (c).

Decided October 26, 2001

Gary C. Harris, for appellant.

Griner & Mírate, Galen A. Mírate, Ellisa Garrett, for appellee.

Appeal dismissed.

Blackburn, C. J., and Mikell, J., concur.

       Contrary to Wilson’s arguments, we find no inconsistency between the first and second sentences of Court of Appeals Rule 4. The first sentence of the rule describes the requirements for completing; the second sentence allows for filing by mail.