text:
    A99A1202.
    WILLIAMS v. THE STATE.
    (521 SE2d 414)
   Eldridge, Judge.

A Peach County jury found Jermaine T. Williams guilty of armed robbery and possession of a firearm during the commission of a felony. On appeal, he challenges the sufficiency of the evidence introduced against him by contending that there was insufficient corroboration of an accomplice’s testimony to support conviction. We disagree and affirm his conviction.

At approximately 12:30 a.m., Kevin Whitaker and Mandy Forte were in the parking lot of Earl’s pool hall located at the comer of Highway 314 and Spruce Street in Fort Valley. The pool hall was closed, and the couple was sitting in Whitaker’s van, talking. They noticed a man walk by the van and then return a few moments later. Thereafter, Whitaker walked Forte to her car, which was parked nearby. On Whitaker’s return to the van, two men ran out from behind the pool hall building. One ran toward him, pulling out a rifle. The perpetrator with the rifle was dressed in black and had a hood that was rolled up on his forehead, so that his face was exposed. Whitaker recognized him as the man who had walked by the van earlier. The perpetrator with the rifle demanded Whitaker’s money, stating “give me your shit, mother fucker.” Whitaker removed his wallet and threw it to the ground. The perpetrator with the rifle retrieved the wallet, and both perpetrators fled. Whitaker’s wallet contained, inter alia, his library card, check cashing card, Office Depot credit card, three $50 bills, and between six and ten $20 bills.

Whitaker and Forte drove to the police station. A bulletin was posted via police radio, along with a description of the perpetrators. Approximately 30 minutes later, appellant Williams was found on Spruce Street near the incident location; he fit the general description put out in the bulletin. A police officer took Whitaker to view appellant Williams at a “show-up” identification. Whitaker stated that Williams looked like the perpetrator, but he could not be positive because Williams was dressed in white, while the perpetrator had been dressed in black. Accordingly, Williams was released; however, the police obtained a search warrant for Williams’ residence. Recovered during the search of Williams’ residence were a .22 rifle and the victim’s wallet, which included his library card, check cashing card, and Office Depot credit card. Subsequent police investigation led to the arrest of appellant Williams and two co-defendants, Clifton Dean and fifteen-year-old Jonathan Rumph.

At trial, Jonathan Rumph testified for the State. Rumph testified that appellant Williams and co-defendant Dean decided to “hit a lick,” i.e., rob a place. They planned to rob Earl’s pool hall. Williams and Dean asked Rumph to go with them. Rumph testified that, at approximately 12:30 a.m. on January 30,1998, he met the two others at appellant Williams and Dean’s house on Spruce Street. Williams armed himself with a .22 rifle, while Dean obtained a handgun. Williams was dressed in black and was wearing a hood which was rolled up on his forehead so that his face was visible.

Rumph testified that the trio walked to the pool hall, but it was closed; however, a man and a woman were sitting in a van in the parking lot. Rumph testified that appellant Williams walked by the van and then returned, stating he was “going to get the dude’s wallet.” Rumph testified that, shortly thereafter, the man walked the woman to her car. As the man returned to the van, appellant Williams ran up to him, drew his rifle, and stated “give me the money, mother fucker.” Rumph testified that the man threw his wallet on the ground and Williams retrieved it. Thereafter, at approximately 1:00 a.m., Williams, Dean, and Rumph ran back to Williams and Dean’s house where Williams changed clothes. Rumph testified that Williams dressed all in white.

The State also presented testimony from Lashonda Dean, who lives in the same house as Williams and Clifton Dean. She testified that, on the night the armed robbery took place, Rumph and appellant Williams returned to the house just before 1:00 a.m. Ms. Dean testified that the .22 rifle recovered by the State belonged to appellant Williams.

In addition, Fort Valley State College student Crystal Lawrence testified at trial. She stated that appellant Williams came to see her after 1:00 a.m. on the same date as the incident. “He had a black hood on. . . . [H]e asked me did it look like he had money inside the hat and I said no and then he pulled out some money from under the hat.” From under the hood Williams removed what appeared to be over $100 in bills. Williams gave Lawrence two $20 bills from the cache. Held:

In Georgia, the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty. Slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. The necessary corroboration may be by circumstantial evidence.

Decided July 29, 1999.

Jones & Oliver, Charles E. Jones, for appellant.

Charles H. Weston, District Attorney, Wayne G. Tillis, Howard Z. Simms, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Bennett v. State, 202 Ga. App. 699 (415 SE2d 310) (1992). Further, “[t]he sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient.” (Citations and punctuation omitted.) Orr v. State, 189 Ga. App. 378, 381 (375 SE2d 669) (1988) (Sognier, J., concurring specially).

In this case, the testimony of accomplice Rumph is amply corroborated by the testimony of Kevin Whitaker, as well as Mandy Forte, in that Rumph’s description of the way in which the armed robbery transpired mirrors that of both eyewitnesses. Further, Rumph’s testimony regarding appellant Williams’ participation in the armed robbery is corroborated by (1) the victim’s pre-trial identification of Williams as looking like the perpetrator; (2) the officers’ discovery of the victim’s wallet in Williams’ house; (3) Williams’ ownership of the .22 rifle used in the armed robbery; and (4) his appearance at Fort Valley State College shortly after the armed robbery wearing the same type of hood used in the armed robbery and in possession of cash that he was obviously trying to hide.

As such, we find the evidence provides sufficient corroboration of the accomplice’s testimony so that a rational trier of fact could find Williams guilty beyond a reasonable doubt of the offenses for which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Scott v. State, 225 Ga. App. 729, 732 (3) (484 SE2d 780) (1997).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A1218.
    THOMAS v. THE STATE.
    (521 SE2d 397)
   Eldridge, Judge.

A Richmond County jury found Rudolph Lamar Thomas guilty of two counts of burglary, one count of rape, and one count of aggravated sodomy for acts he perpetrated against a female victim after twice breaking into her home. He appeals his conviction, and we affirm it.

1. Thomas first challenges the sufficiency of the evidence introduced against him. In so doing, he does not assert that the essential elements of the crimes were not present in the testimony of the State’s witnesses. Instead, Thomas claims that “the State’s witnesses were entirely impeached and the alleged victim [’]s delay in reporting the crime establishes that her allegations are not worthy of belief.”

However, “[t]he success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses.” (Citation and punctuation omitted.) Stephens v. Adkins, 226 Ga. App. 648, 649 (487 SE2d 440) (1997). Moreover, a delay in reporting an alleged rape goes to the credibility of the victim, which is solely a jury question. “The delay may be explained [and] the decision on credibility left to the jury.” (Citations and punctuation omitted.) Barnes v. State, 171 Ga. App. 478, 480 (320 SE2d 597) (1984).

Here, Thomas claimed that his sexual relations with the victim were consensual, while the victim testified in detail regarding his perpetration of criminal acts upon her. The jury chose to believe the victim, including her explanation that she did not go to the police immediately because of “shame. Shame, embarrassed, shocked. Basically just very shamed. I didn’t want anybody to know. Embarrassed.”

The decision to believe the victim was the jury’s prerogative. Since this Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence, assess the credibility of the witnesses, or otherwise invade the province of the jury, Thomas’ challenge to the sufficiency of the evidence presents no basis for reversal. Kapua v. State, 228 Ga. App. 193,196 (2) (491 SE2d 387) (1997).

2. Next, Thomas claims a Brady violation. The State stipulated pre-trial to the fact that — prior to the incident in question — the victim was not under psychiatric care and had no psychiatric history. However, the victim testified at trial that she was taking antidepressant medication prior to the incident. Thomas asserts that such testimony demonstrates a “psychiatric history” that the State was aware of and deliberately suppressed. In that regard, Thomas claims that “[h]ad the Defense had this information a reasonable probability exists that the outcome of this trial would have been different.” We do not agree.

Fundamental to any error based upon a violation of Brady is that appellant must prove that: (1) the state possessed evidence favorable to the defense, i.e., true Brady material; (2) the defense did not possess the evidence, nor could she obtain it herself with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; (4) she was denied access to such evidence during trial; (5) the disclosure would have benefitted the defense by providing evidence for the defense or impeaching prior inconsistent statements; and (6) the denial deprived her of a fair trial, i.e., a reasonable probability exists that the outcome of the proceedings would have been different had disclosure been made.

(Emphasis omitted.) Bailey v. State, 229 Ga. App. 869, 874 (3) (494 SE2d 672) (1997).

With these criteria in mind, we find that Thomas’ claim of a Brady violation fails for the following reasons:

(a) The victim’s employment of anti-depressant medication does not, by itself, indicate a “psychiatric history” as alleged by the defense. A general practitioner may prescribe such medication on a temporary basis. Accordingly, the testimony about which Thomas complains does not establish that the evidence sought by Thomas even exists.

(b) There is no evidence that the State knew of the victim’s psychiatric history, if any, and deliberately suppressed it. In fact, the State maintained that the victim adamantly denied any psychiatric history and that such was the source of the State’s information and the basis for the State’s stipulation.

(c) The evidence about which Thomas complains came out during trial, thereby rendering his Brady challenge meritless. “A Brady violation does not exist where the information sought by the defendant becomes available at trial.” Jenkins v. State, 269 Ga. 282, 292 (18) (498 SE2d 502) (1998).

(d) Thomas has failed to demonstrate how evidence of the victim’s alleged psychiatric history would have been admissible on the trial of this case. See Bobo v. State, 256 Ga. 357, 360 (4) (349 SE2d 690) (1986); see also Tiller v. State, 159 Ga. App. 557, 558 (284 SE2d 63) (1981).

(e) Thomas states that “the outcome of this trial would have been different” had the defense been made aware of the victim’s alleged psychiatric history. However, this conclusory statement in no way meets Thomas’ burden to prove that a reasonable probability exists that the outcome would have been different had the information about which he complains been available.

3. Thomas contends that the trial court erred in qualifying as an expert Beverly Lindsey, Director of the Augusta Rape Crisis Center. Specifically, Thomas contends that Lindsey did not have the experience, education, or training to testify regarding the number of women who delay in reporting a rape or fail to report it at all. We do not agree.

To qualify an expert witness, nothing more is generally required than a showing that the witness has been educated in a particular trade or profession; such special knowledge may be derived from experience as well as study. It lies in the trial court’s sound discretion to decide whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert; the exercise of this discretion will not be disturbed unless manifestly abused.

(Citations and punctuation omitted.) Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993).

Here, the record shows that Beverly Lindsey has a master’s degree in clinical counseling and, at the time of trial, had over five years experience in counseling victims of sexual assault, which victims numbered in the hundreds. She had been the Director of the Augusta Rape Crisis Center for a year and a half at the time of trial. In addition to her advanced degree and experience with hundreds of victims, Lindsey testified that she had read “different books, various journal articles” on the subject of rape victims, the most recent of which was The Rape Victim by Mary Haas and Mary Harvey. The specific testimony about which Thomas complains was derived from information Lindsey obtained from an article called “Rape Report to the Nation,” which stated that only 16 percent of women who had been raped reported the incident. In addition, Lindsey testified that, from her own experience counseling rape victims, “very few of the people that come in for counseling report to the police.”

Based on the above, we find no abuse of discretion in the trial court’s qualification of Lindsey as an expert on victims of sexual abuse, including rape. Further, our review of the record shows that the specific testimony about which Thomas complains was clearly related to knowledge within Lindsey’s area of expertise. Thus, there was no error in the admission of such testimony. Compare Prickett v. State, 220 Ga. App. 244, 246 (3) (469 SE2d 371) (1996), overruled on other grounds, State v. Belt, 269 Ga. 763, 764, n. 1 (505 SE2d 1) (1998).

Decided July 29, 1999.

Jeffrey S. Bowman, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Because Thomas does not challenge the presence of the essential elements of the crimes, a recitation of the facts is rendered unnecessary herein. Notwithstanding, we find that the State’s evidence was sufficient for a rational trier of fact to have found Thomas guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).


text:
    A99A1246.
    THE STATE v. LONG.
    (521 SE2d 401)
   Eldridge, Judge.

The State appeals from a Houston County State Court order granting Nathan Baxter Long’s motion to suppress the results of his urine test which showed positive for the presence of marijuana.

On June 20, 1997, Houston County Deputy J. Sendek and his partner, Deputy Quinones, were stationed at the intersections of Kersey and Hodge Roads in Houston County. Drug sales had been reported in this rural area, and Sendek was a trained narcotics officer. At approximately 8:00 p.m., Sendek stopped Nathan Long for weaving down Hodge Road. The stop was captured on videotape.

Initially, Deputy Sendek asked Long to exit the car and walk to the back of the vehicle in view of the video camera. At the hearing on the motion to suppress, Sendek testified that Long smelled strongly of marijuana; that his eyes were red and glassy; and that Long was nervous, perspiring, and trembling. After determining that Long and his passenger, Clinton Payne, were “just out riding,” Deputy Sendek went to the passenger window to interview Payne. At the motion hearing, Sendek testified that when Payne rolled down the window, “I could smell a strong odor of burnt marijuana almost smelling like it was smoldering and burning inside the vehicle.”

The evidence shows that Deputy Sendek then returned to the back of the vehicle to continue his interview with Long. He obtained Long’s driver’s license and insurance card and informed Long that if a driver’s license check showed no violations, he would issue Long a warning for failure to maintain a lane. Long waited in his car while Sendek performed the driver’s license check.

During the course of the license check, Deputy Quinones approached Long’s vehicle and, through the driver’s window, engaged both Long and Payne in conversation which was not picked up by the audio feature of the video camera. However, when Quinones returned to the police vehicle, his subsequent conversation with Sendek showed that both deputies recognized that Long’s passenger, Clinton Payne, had been arrested several days earlier for marijuana; that Long’s eyes were extremely red and “all washed out”; that both Long and Payne “were scared to death”; and that the officers were “fixin to ask them if [they could] search the vehicle.” No mention was made of the odor of marijuana about which Deputy Sendek testified at the motion hearing.

Long’s driver’s license check showed no violations. Sendek exited his police vehicle and asked Long to re-join him at the back of Long’s car. He issued Long a warning and a short lecture on the dangers of failing to maintain a lane. At the conclusion thereof, Sendek stated, “Let me ask you something before you go on. . . .” Sendek then informed Long that, as a part of his job, he investigates and searches for contraband. Sendek explained that he considered contraband items like weapons and drugs. Sendek asked Long for permission to search the vehicle. As specific reasons for the search, Sendek told Long that Long’s eyes were red, his face was red, and he was present in a high drug crime area. No mention was made of the odor of marijuana about which Deputy Sendek testified at the motion hearing.

In response to Sendek’s request to search, Long stated “I don’t really want you to, but there’s nothing in there.” Deputy Sendek interpreted this answer as a qualified acquiescence to the search. At the motion hearing, Sendek testified that if Long had refused, and “[i]f he had turned around and walked away, I probably would have stopped him and talked to him about the marijuana.” Deputies Sendek and Quinones then proceeded to search Long’s car. Under the passenger seat, the deputies located a marijuana pipe with the remains of marijuana in the bowl; the pipe was still warm. The remains of a marijuana cigarette were found in the car’s ashtray. Long was charged with failure to maintain a lane; possession of marijuana; and driving under the influence of drugs. Long’s subsequent urine test came back positive for the presence of marijuana.

At the motion to suppress hearing, Long contended that the urine test was the result of an illegal arrest based upon a warrant-less search of his car without consent and without probable cause to search. The trial court granted the motion, holding:

After the Defendant had been advised that he would only be given a warning for weaving, the probable cause for the stop in this case had ended. After the Defendant refused to permit a search of his vehicle by Officer Sendek, Officer Sendek did not have the right to search the vehicle without a warrant.

Held:

The trial court’s findings were erroneous as a matter of law. The court erroneously equated “probable cause” to stop a vehicle with probable cause to search. The court then further compounded its error by determining that, absent consent, the deputy could not search Long’s car without a warrant. Not present in the trial court’s legal analysis is the recognition that probable cause to search may develop during the course of a legitimate investigative stop. The development of such probable cause is not contingent upon the rationale for instigating the stop in the first place. See, e.g., Temples v. State, 228 Ga. App. 228, 230-231 (491 SE2d 444) (1997). The failure to issue a citation on an underlying traffic offense — or even an acquittal thereon — is of no consequence in determining the existence of probable cause. Hicks v. State, 221 Ga. App. 735, 739 (472 SE2d 474) (1996). Moreover, the existence of probable cause is an inquiry independent of the issue of “consent.”

Thus, the question is whether, during the course of the legitimate stop for a traffic offense, the evidence shows that probable cause developed so as to provide a basis for Deputy Sendek’s search of Long’s car.

We have held that the odor of marijuana emanating from a car and driver, along with physical characteristics such as those manifested by Long, may provide probable cause to search a vehicle. O’Keefe v. State, 189 Ga. App. 519, 526-527 (376 SE2d 406) (1988); Williams v. State, 187 Ga. App. 409 (370 SE2d 497) (1988). Thus, factually, probable cause to search may be present in this case. However, such is a determination for the trial court to make under a totality of the circumstances analysis, including a determination of the credibility of the witnesses. Pattman v. State, 208 Ga. App. 770, 771-772 (431 SE2d 706) (1993).

In that regard and without expression of opinion, we note that on the videotape, when telling Long his specific reasons for searching Long’s car, Deputy Sendek did not include the smell of marijuana as a basis for the search. Nor did Sendek and his partner mention such odor when privately discussing a potential search of Long’s car. Apparently, the odor of marijuana as a basis for the warrantless search was first mentioned in a police report Deputy Sendek wrote after the search and Long’s arrest. In the court below, Long argued that the deputy’s testimony regarding the smell of marijuana “raises an issue of credibility as to whether or not that was merely used as a pretext to justify the search.” Before this Court, while conceding that the odor of marijuana would provide probable cause to search, Long again asserts that such odor was not present.

Decided July 29, 1999.

A. Robert Tawse, Jr., Solicitor, for appellant.

Robert E. Turner, for appellee.

Accordingly, under the facts of this case, a legitimate credibility issue was raised with regard to Deputy Sendek’s testimony at the hearing on the motion to suppress, which issue must be addressed for the proper resolution of the instant motion. This Court cannot make such credibility determination on the record before us. Thus, we remand this case for the trial court to determine whether, after the traffic stop, probable cause developed so as to provide a basis for Deputy Sendek’s warrantless search of Long’s car.

Judgment vacated and remanded for proceedings not inconsistent with this opinion.

Pope, P. J., and Smith, J., concur.

       “Probable cause” is not the standard for an investigative stop of a vehicle.
      An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.
      (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 643 (484 SE2d 743) (1997).


text:
    A99A1272.
    DAUGHERTY et al. v. JARRETT.
    (521 SE2d 406)
   Eldridge, Judge.

On October 19, 1994, Jasper County authorities seized property of Wyman Jarrett, plaintiff-appellee, his son Larry Jarrett, and Ralph Jarrett incident to the arrest of Larry Jarrett for violation of the Georgia Controlled Substances Act (“GCSA”), i.e., possession with intent to sell methamphetamine, possession of illegal firearms, and possession of vehicles with altered vehicle identification numbers. Larry Jarrett hired John F. Daugherty and the law firm of Greer, Klosik & Daugherty (“Greer Klosik”) to represent himself and his father in the criminal charges and the civil forfeiture proceeding.

On December 8, 1994, the district attorney filed a civil forfeiture proceeding pursuant to OCGA § 16-13-49 for the property seized. On January 3, 1995, an answer was filed timely. The documentation of ownership, i.e., bill of sale, deed, closing statement, and survey, had been seized by the sheriff, and copies were not attached to the answer, so that some of the information required by OCGA § 16-13-49 (o) (3) was omitted. On January 24, 1995, the State moved for forfeiture, alleging that the answer was deficient and that it was entitled to judgment. On February 27, 1995, an amended answer was filed containing the previously omitted information and supporting documents. On March 23, 1995, the State filed a motion to dismiss the amended answer. On March 31, 1995, responses to the State’s motion were filed. On April 3, 1995, the trial court held a hearing on the motions. On April 26, 1995, the trial court granted the State’s motion, struck the amended answer, and entered a default forfeiture. An appeal was filed, and on March 11, 1996, this Court affirmed the trial court in Jarrett v. State of Ga., 220 Ga. App. 559 (472 SE2d 315) (1996). On March 29, 1996, a petition for certiorari was filed, which was denied.

On August 5, 1997, Wyman Jarrett sued Greer Klosik for legal malpractice in failing to file a proper answer to the civil forfeiture action under OCGA § 16-13-49 (o) (3). Greer Klosik filed its answer. On April 17, 1998, Greer Klosik filed its motion for summary judgment. Jarrett responded, stating “[i]n support of this response, the plaintiff relies on all the pleadings, briefs, and discovery on file with the Court.” On June 12, 1998, the trial court denied Greer Klosik’s motion for summary judgment.

On July 14, 1998, Greer Klosik’s application for discretionary appeal was granted. On July 16,1998, Greer Klosik’s notice of appeal was filed.

Greer Klosik contends that the trial court erred in failing to grant their motion for summary judgment. We agree.

Jarrett v. State of Ga., supra, was specifically overruled in Rojas v. State of Ga., 269 Ga. 121, 123 (498 SE2d 735) (1998). The Supreme Court held: “[w]e conclude that the Court of Appeals erred in Jarrett in holding that an amended answer cannot relate back to a timely-filed initial answer, and we therefore overrule that portion of the Jarrett decision.” Id.; see also Jackson v. State of Ga., 231 Ga. App. 320, 321 (1) (498 SE2d 159) (1998); Lee v. State of Ga., 225 Ga. App. 733, 734-735 (484 SE2d 777) (1997); Knodal v. State of Ga., 222 Ga. App. 514 (474 SE2d 700) (1996); State v. Gonzales, 213 Ga. App. 661, 662 (445 SE2d 808) (1994). Thus, it cannot be said that the law was settled and its application clearly demanded, and the failure to apply it apparent. See Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976). Where the Court of Appeals was equally divided in Rojas v. State of Ga., supra at 121, as pointed out by the Supreme Court, as to whether the relation back of an amendment should apply, this, as a matter of law, clearly manifested the uncertain state of the law that Greer Klosik faced. “[Ujnless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results. [Cits.]” Berman v. Rubin, supra at 853. See also Jones, Day, Reavis &c. v. American Envirecycle, 217 Ga. App. 80, 83-84 (456 SE2d 264) (1995). Where no less than the Supreme Court holds that not only the trial court, but also this Court, erred as a matter of law in not applying the amendment retroactively to a timely answer and overrules Jarrett v. State of Ga., supra, then, as a matter of law, the trial court should have granted the motion for summary judgment.

Decided July 29, 1999.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Gregory H. Wheeler, for appellants.

Zell & Zell, Glenn Zell, for appellee.

Upon examination of the amendment to the answer in Jarrett v. State of Ga., supra, it did supply the information and fully complied with OCGA § 16-13-49 (o) (3), so that the trial court erred in denying summary judgment. See Rojas v. State of Ga., supra at 123; Jackson v. State of Ga., supra at 321.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A1386.
    WARREN v. THE STATE.
    (521 SE2d 424)
   McMurray, Presiding Judge.

Defendant Warren pleaded guilty pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162), to two counts of sexual battery. After successfully completing consecutive 12-month sentences on probation, defendant filed this direct appeal from an order denying his motion to expunge his criminal record after being discharged under Georgia’s First Offender Act, OCGA § 42-8-60 et seq. Held:

Appeals from orders entered pursuant to the superior court’s de novo review authority under OCGA § 35-3-37 (c) must be made via OCGA § 5-6-35’s discretionary appeal procedures. Strohecker v. Gwinnett County Police Dept., 182 Ga. App. 853, 854 (2) (357 SE2d 305). Our jurisdiction is invoked only by following the appropriate procedure, and where that procedure is not followed, this Court has no jurisdiction to consider the merits of the appeal. See Summerset v. Dept. of Offender Rehabilitation, 167 Ga. App. 730, 731 (307 SE2d 678). Since defendant Warren failed to comply with the mandatory procedures for discretionary review of the superior court’s order denying his motion to expunge his criminal record, this direct appeal must be dismissed.

Decided July 29, 1999.

Smith, Ronick & Corbin, Howard R. Ronick, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Appeal dismissed.

Andrews, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A99A1415.
    AAA TRUCK SALES, INC. v. MERSHON TRACTOR COMPANY.
    (521 SE2d 403)
   Ruffin, Judge.

Third-party defendant AAA Truck Sales, Inc. (AAA) appeals the trial court’s denial of its motion for summary judgment on the third-party complaint of Mershon Tractor Company (Mershon). For reasons that follow, we reverse.

As our Supreme Court has held,

[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review the denial of a motion for summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant. Carter v. Moody, 236 Ga. App. 262, 263 (511 SE2d 520) (1999).

So viewed, the evidence shows that Mershon purchased a 1982 truck from AAA on February 15, 1988. Mershon sold the truck to Trans Power, Inc., on April 11, 1994. Trans Power later discovered that the truck had been stolen in Texas prior to its purchase and demanded a refund from Mershon. When Mershon refused, Trans Power sued it for breach of warranty of title. Mershon obtained leave of court to bring a third-party complaint against AAA for breach of warranty of title, alleging that AAA was liable to Mershon for the claim brought against it by Trans Power.

AAA sought summary judgment on the third-party complaint, arguing that Mershon’s claim was barred by the applicable statute of limitation. In support of its motion for summary judgment, AAA submitted the affidavit of its vice-president, J. Wayne Smith, who averred that AAA had no knowledge until after September 12, 1994, that the truck had previously been stolen or that there was any problem with the title. Mershon then filed an amendment to its third-party complaint adding a claim for fraud. The new claim alleged that AAA affirmatively represented to Mershon that it had good and merchantable title to the truck despite having actual knowledge that the truck was stolen. In response to AAA’s summary judgment motion, Mershon argued that the alleged fraud tolled the statute of limitation until Mershon first learned in 1994 that the truck was stolen. Mershon did not submit any evidence in response to the summary judgment motion. After Mershon added its fraud claim, AAA filed a supplemental summary judgment brief pointing out Mershon’s failure to present evidence of fraud. The trial court denied AAA’s motion, and we granted AAA’s application for interlocutory appeal.

1. The parties agree that the statute of limitation applicable to Mershon’s breach of warranty claim is contained in OCGA § 11-2-725, which provides, in pertinent part, that

[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. ... A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made.

OCGA § 11-2-725 (1) and (2); see also Embryo Progeny Assoc. v. Lovana Farms, 203 Ga. App. 447, 449 (1) (416 SE2d 833) (1992) (limitation period in § 11-2-725 governs claims for breach of contract for sale of goods). Although the parties do not address it, the limitation period applicable to Mershon’s fraud claim also is four years, pursuant to OCGA § 9-3-31. See Shapiro v. Southern Can Co., 185 Ga. App. 677 (365 SE2d 518) (1988). Mershon purchased the truck in 1988 and filed its third-party complaint in 1995, well beyond the limitation period. However, if AAA is guilty of “a fraud by which [Mershon] has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of [Mershon’s] discovery of the fraud.” OCGA § 9-3-96. Mershon bears the burden of establishing the existence of any facts which would toll the statute of limitation. Edmonds v. Bates, 178 Ga. App. 69, 72 (342 SE2d 476) (1986).

Mershon argues that AAA’s alleged misrepresentation that it had good and merchantable title to the truck tolled the limitation period until 1994, when Mershon learned the truck had been stolen. We agree with AAA, however, that Mershon has failed to satisfy its summary judgment burden of coming forward with evidence to support its allegations of fraud. AAA submitted an affidavit stating that it had no knowledge until 1994 — five years after the sale to Mer-shon — that the truck had been stolen or that there was any problem with the title. To avoid summary judgment, Mershon could not merely rest on its pleadings but was required to present some evidence of actual fraud. Wilson v. Phillips, 230 Ga. App. 290, 291 (495 SE2d 904) (1998); Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980). Because Mershon failed to present any such evidence, the statute of limitation on Mershon’s claims is not tolled, and the trial court should have granted summary judgment to AAA on the third-party complaint. See Lau’s Corp., supra. We therefore reverse.

2. Mershon argues that it was not required to submit any evidence of fraud because it filed the amendment containing the fraud claim after AAA filed its motion for summary judgment. To the extent that Mershon argues that AAA never sought summary judgment on the fraud claim, as opposed to the warranty claim, the record indicates otherwise. AAA’s motion sought summary judgment “as to [Mershon’s] third-party complaint,” contending generally that “there are no genuine issues as to any material fact, and [AAA] is entitled to summary judgment as a matter of law.” In a clear attempt to avoid the limitation problem, Mershon amended its third-party complaint to allege fraud, but presented no evidence that AAA did, in fact, know at the time of the sale that the vehicle had been stolen. AAA then filed a supplemental brief in support of its motion for summary judgment, pointing out Mershon’s failure to contradict Smith’s affidavit or to present any other evidence of fraud. That this pleading was styled as a supplemental brief rather than an amendment to the motion for summary judgment is of no import. See Martin v. Williams, 263 Ga. 707, 708 (1) (438 SE2d 353) (1994) (“substance, rather than nomenclature, governs pleadings”). Mershon did not respond to the supplemental brief. Under these circumstances, we conclude that AAA did seek summary judgment on all claims raised in the third-party complaint, including the fraud claim. Because Mershon did not come forward with any evidence of fraud, the trial court should have granted AAA’s motion for summary judgment as to both claims asserted by Mershon.

Judgment reversed.

McMurray, P. J., and Andrews, P. J., concur.

Decided July 29, 1999.

Dillard & Bower, Bryant H. Bower, Jr., for appellant.

Charles D. Joyner, for appellee.

       Trans Power’s claims against Mershon have been resolved, leaving only the third-party claims in the case.

       Mershon does not argue, and the record does not indicate, that it was denied an opportunity to present evidence in support of its fraud claim or was not put on notice that AAA sought summary judgment on that claim.


text:
    A99A1494.
    MITCHELL v. SPEERING.
    (521 SE2d 419)
   Ruffin, Judge.

Sharon Mitchell sued Mabry Kathryn Speering in the Civil Court of Richmond County for causing a three-vehicle collision. After Speering failed to respond to Mitchell’s complaint, the trial court entered a $20,000 default judgment. More than three and a half months later, the court granted Speering’s motion to set aside the default judgment, finding a proper case for doing so under OCGA § 9-11-60. For reasons that follow, we reverse.

After settlement negotiations floundered, Mitchell filed suit against Speering. Mitchell’s counsel sent a copy of the complaint by certified mail to Allstate Insurance Company (“Allstate”), and the return receipt bears the date of June 8,1998. Allstate then forwarded the file to its counsel, who received it the next day. Service, however, was not perfected on Speering until August 15, 1998, when Speering personally accepted service. The process server’s affidavit was file stamped by the clerk’s office on August 24. After no response was forthcoming from Speering, Mitchell obtained judgment by default on October 5. The order recited that the court tried the issue of damages without a jury and it awarded $20,000 to Mitchell.

Nearly two months later, on December 2, Speering moved to set aside the judgment. In support of this motion, Speering offered no evidence of fraud or accident but instead relied solely on a single affidavit from the legal assistant of defense counsel, which blamed the clerk’s office for providing misinformation about service. The legal assistant averred that she had checked with the clerk’s office on seven different dates spanning from June 16 to October 22 and had been advised each time that service had not been perfected. Yet, for none of those dates did the legal assistant identify any employee of the clerk’s office by a complete name or provide any specific details. Instead, the affidavit simply recited, “[o]n [each of certain dates] Affi-ant telephoned the Clerk’s office and was informed that service had not been perfected on the Defendant.”

After accepting service of the complaint, Speering testified that she did absolutely nothing about the suit. When asked in her deposition, “[w]hat did you do with [the pleadings]?” she responded, “[a]ctually, they kind of got under my pile of things to do and I didn’t get back to them.” She admitted that she did not contact Allstate or an attorney or anyone else after being served with the complaint. Speering also affirmed that after June 1, 1998, Allstate never telephoned or corresponded with her concerning the automobile accident or about service of the complaint.

In an order filed January 27, 1999, the trial court set aside the October 5 default judgment. The court found that

defense counsel’s office justifiably relied upon verbal communications with personnel in the Clerk’s office regarding the status of service of process. During these communications, an error occurred which may have contributed to the failure to file a timely answer.

In her sole enumeration of error, Mitchell contends that the trial court erred in setting aside the judgment because Speering’s own negligence contributed to the entry of judgment. We agree.

After the expiration of the term of court in which a default judgment is entered, the discretion of the court in setting aside the judgment is limited to the criteria set forth in OCGA § 9-11-60.* See Lee v. Restaurant Mgmt. Sues., 232 Ga. App. 902, 903 (1) (503 SE2d 59) (1998). Thus, this default judgment could be set aside only if the provisions of OCGA § 9-11-60 were satisfied. See Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583) (1983). Under subsection (d) (2), a judgment may be set aside where that judgment was procured on the basis of “[flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” OCGA § 9-11-60 (d) (2). But where there is any negligence or fault on the part of the movant, this section is inapplicable. Richardson v. Indus. Welding &c., 238 Ga. 144, 145 (2) (231 SE2d 760) (1977); First Dixie Properties v. Chrysler Corp., 202 Ga. App. 145, 146-147 (413 SE2d 464) (1991). A mistake on the part of a movant does not afford a basis for relief under OCGA § 9-11-60 (d) (2). Smith v. Manns, 200 Ga. App. 701, 703 (1) (b) (409 SE2d 270) (1991).

Decided July 29, 1999.

Bell & Bell, David B. Bell, Sharon B. Enoch, for appellant.

Thompson & Smith, Larry I. Smith, for appellee.

Even assuming arguendo that the legal assistant’s affidavit constituted admissible evidence, such evidence would not negate Speer-ing’s admission on deposition that she did nothing after being served with the complaint. See Hassell v. First Nat. Bank of Newton County, 218 Ga. App. 231, 234 (2) (461 SE2d 245) (1995); Moore v. State, 154 Ga. App. 535 (268 SE2d 706) (1980). Even if the clerk’s office had misinformed the office of Speering’s counsel that service had not been perfected, this “mistake” would not justify setting aside the judgment because it was not unmixed with the negligence or fault of Speering, who failed to take any action in response to the complaint and whose counsel did not check with her to see whether she had been served. See Aycock v. Hughes, 189 Ga. App. 838 (1) (377 SE2d 689) (1989). Accordingly, the trial court abused its discretion in setting aside the judgment. Lee, supra.

Notwithstanding Speering’s claim to the contrary, Wright v. Archer, 210 Ga. App. 607, 608 (1) (436 SE2d 775) (1993) neither demands nor authorizes a different result. In Wright, we presumed that the trial court’s factual findings were correct because no evidence or transcript had been provided for appellate review. Id. Whereas here, Speering’s undisputed deposition testimony attests to fault on her part. Because the mistake asserted was not unmixed with the negligence or fault of Speering, we reverse. See Northeast Atlanta Surety Co. v. State of Ga., 197 Ga. App. 399, 401-402 (398 SE2d 435) (1990).

Judgment reversed.

McMurray, P. J., and Andrews, P. J., concur.

       To controvert the occurrence of any alleged mistake, Mitchell offered an affidavit from the Clerk of the Civil Court, Vera Butler. Butler testified that the affidavit showing service on Speering “was properly filed and an entry was made on the Bench Execution Docket.” Butler averred that had a call been placed, as claimed, “in which the captioned case was properly identified, then the caller would have been told of the entry of service on the Bench Execution Docket of the Clerk’s office.”

       Speering did not controvert Mitchell’s statement of fact that the term of court in which judgment was entered had expired. Thus, we accept this statement of fact as true. See Court of Appeals Rule 27 (b) (1).


author: Johnson, Chief Judge.

text:
    A99A1553.
    GOMEZ et al. v. CHAO.
    (521 SE2d 421)
   Johnson, Chief Judge.

Kathy Gomez was driving, and David Gomez was a passenger in, a van that collided with a car driven by Don Chao. The Gomezes sued Yun Chao, Don Chao’s father, claiming he was the negligent driver of the car. Chao moved for summary judgment on the ground that he was not the driver of the car. In response to the motion, the Gomezes conceded that Yun Chao was not the driver of the car and that Don Chao was the actual driver whom they had intended to sue. However, they claimed that Yun Chao is nevertheless liable for his son’s negligence under the family purpose doctrine. The trial court granted Chao’s motion for summary judgment. The Gomezes appeal from the judgment.

1. The Gomezes contend the court erred in granting summary judgment to Chao because there are genuine issues of material fact as to whether he is liable under the family purpose doctrine. Even if such issues exist, they are irrelevant to this case because the Gomezes’ lawsuit does not seek to hold Chao liable under the family purpose doctrine.

It is apparent from the Gomezes’ complaint, and they have admitted both in the trial court and in their appellate brief, that they sued the wrong person. They meant to sue Don Chao for negligence, but mistakenly named his father as the defendant. Once the Gomezes realized their mistake, it does not appear, at least from the record before us, that they attempted to correct the error by moving to add Don Chao as the proper defendant or by amending their complaint to allege that Yun Chao is liable under the family purpose doctrine. Rather, they simply left their complaint in its original form. Thus, what appears in the record before us is a complaint alleging only that Yun Chao is liable for negligently driving his car.

Even under the most liberal construction of the complaint, we cannot find that the Gomezes sued to hold Yun Chao liable pursuant to the family purpose doctrine. Such a finding would require us to ignore the plain language of the complaint and to allow a theory of recovery entirely different from that which the Gomezes have claimed. A complaint must set forth the intended theory of recovery because there can be no recovery on a theory not alleged. See Runyan v. Economics Laboratory, 147 Ga. App. 53, 57 (248 SE2d 44) (1978); Carroll v. Johnson, 144 Ga. App. 750, 753 (4) (242 SE2d 296) (1978).

Because it is undisputed that Don Chao was driving the car in question, the Gomezes’ lawsuit for negligent driving against the wrong person, Yun Chao, cannot survive as a matter of fact or law. The trial court therefore correctly granted summary judgment to Chao. See generally Woods v. Belvedere Park Apts., 225 Ga. App. 613, 614 (484 SE2d 242) (1997) (complaint correctly dismissed where plaintiff never moved to add correct defendant); see also Mason v. Intl. Indem. Co., 178 Ga. App. 372 (343 SE2d 418) (1986) (summary judgment upheld where plaintiff sued wrong defendant).

2. The Gomezes argue that Chao’s motion for summary judgment was untimely because it was filed after the filing of a pretrial order. The argument is without merit because the only pretrial order we have found in the record is not a final consolidated order signed by both sides, but is simply the Gomezes’ proposed version of such an order. Moreover, the argument is without merit because a defendant may move for summary judgment at any time. See OCGA § 9-11-56 (b).

Decided July 29, 1999.

Douglas R. Daum, for appellants.

Cooper & Avery, Gary M. Cooper, Mike A. Aziz, for appellee.

Judgment affirmed.

Smith and Eldridge, JJ., concur.


text:
    A99A1702.
    SETTLE v. THE STATE.
    (521 SE2d 423)
   Eldridge, Judge.

A Cobb County jury found Robert K. Settle guilty of driving with a suspended license, no insurance, no proof of insurance, and driving with an expired tag. He appeals, challenging only the introduction of two similar transactions. Finding no error, we affirm.

At a pre-trial similar transaction hearing, the State put forward evidence that on May 7, 1991, Settle was stopped in Cobb County for running a stop sign. He had no proof of insurance and a computer check of his driver’s license, No. 288386777, showed that his license was suspended. Thereafter, the State put forward evidence that on May 4, 1994, Settle was stopped in Cobb County for driving in the rain without his headlights on. A computer check of his license, No. 288386777, showed that his license was suspended. In the case-in-chief, Settle was stopped in Cobb County on February 23, 1998, for driving with an expired tag. A computer check of his license, No. 288386777, showed that his license was suspended. The State offered the evidence “to show course of conduct and bent of mind of driving his vehicle with no insurance and while his license is suspended.” The trial court admitted the evidence. Held:

Unless clearly erroneous, appellate courts uphold a trial court’s decision to admit evidence. While it is error to allow similar transaction evidence solely to show a probability that the defendant committed the crime because he is a man of criminal character, a court may permit such evidence to show course of conduct. There must be sufficient similarity or connection between the independent crime and the offense charged so that proof of the former tends to prove the latter. Rehberger v. State, 235 Ga. App. 827, 829 (510 SE2d 594) (1998). In the case sub judice, the 1991 and 1994 incidents are similar enough to the case-in-chief so that the proof of one tends to prove the others. All three offenses demonstrate Settle’s course of conduct in driving on the roads of Cobb County with a suspended license. There was no error in admitting the similar transaction evidence.

Decided July 29, 1999.

Patrick G. Longhi, for appellant.

Barry E. Morgan, Solicitor, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Pope, Presiding Judge.

text:
    A99A0002.
    MANSELL 400 ASSOCIATES, L. P. v. ENTEX INFORMATION SERVICES, INC.
    (519 SE2d 46)
   Pope, Presiding Judge.

On October 14, 1993, Mansell 400 Associates, L. P. and Entex Information Services, Inc. entered into a written commercial lease agreement whereby Mansell leased to Entex approximately 6,492 square feet of office space in Building 20 of a complex of buildings known as the Mansell 400 Business Center. The lease term was five years and two months, running from November 1, 1993 through December 31, 1998.

Paragraph 40 of the lease provided:

If Tenant is not nor has been in Default hereunder, thirty-two (32) months or forty-four (44) months, respectively, after the Lease Commencement Date, Tenant may notify Landlord in writing that it desires to expand the Premises by at least thirty-five percent (35%) and Landlord and Tenant shall enter into negotiations to expand or relocate the Premises within the Mansell 400 Business Center owned by Landlord. If Landlord does not have space to expand or relocate Tenant, then within ten days after Landlord notifies Tenant that there is no available space for Tenant to expand or relocate, Tenant may give notice of its intent to cancel this Lease one-hundred eighty (180) days after such notice (hereinafter called the “Cancellation Date”). On the Cancellation Date, Tenant shall have complied with all terms and conditions of this Lease and shall pay to Landlord $60,220.32 if the Cancellation Date is during the thirty-eighth (38th) month of the Lease Term or $48,025.54 if the Cancellation Date is during the fiftieth (50th) month of the Lease Term. If the Premises are expanded or relocated as a result of the notice during the thirty-second month (32nd) of the Lease Term, then this paragraph shall be of no further force in effect during the Lease Term.

(Emphasis supplied.) On June 29, 1994, during the eighth month of the lease, the parties signed a written amendment of the lease (“First Amendment”) which provided in part that the leased premises would be expanded by 2,450 square feet.

On June 26, 1996, during the 32nd month, Entex notified Man-sell that in accordance with paragraph 40 it desired to expand the leased premises by at least 35 percent. On July 5, Mansell responded contending that the First Amendment rendered paragraph 40 of the original agreement inoperative. One month later Mansell conveyed a proposal for additional space (Suite 200 in Building 20) “conditioned on [an] existing tenant moving to other space they have identified.” The letter indicated Mansell was negotiating a lease termination with the existing tenant. On August 15, Entex notified Mansell in writing that it needed a firm commitment for additional space and that the terms offered by Mansell for the proposed expansion were not acceptable. Entex requested a reply no later than August 19 and stated, “If the issues set forth above cannot be resolved, we intend to exercise our termination option under paragraph 40 of the Lease.” Mansell’s reply four days later indicated the current tenant of Suite 200 had yet to cancel its lease. On August 21, Entex gave written notice of its intent to exercise its termination option. On September 23, Mansell gave formal notice that the tenant in Suite 200 agreed to move. Entex vacated the premises in early 1997.

Mansell filed suit for rent owing on the remainder of the original term of the lease or, in the alternative, for the cancellation fee, and moved for summary judgment on these grounds. Entex filed a cross motion on the grounds it properly canceled the lease and no further rent was due. Entex agreed it owed the cancellation fee; its earlier tender of the fee had been rejected by Mansell. The superior court granted in part and denied in part Mansell’s motion and granted summary judgment in favor of Entex finding the termination was valid and effective and Entex owed the cancellation fee. Mansell appeals. On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the moving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

1. Mansell contends paragraph 40 is not enforceable because it is nothing more than an agreement to negotiate in the future. There are at least four provisions in paragraph 40: an agreement the parties may negotiate at two specific points in the future about a possible expansion, a right for Entex to cancel if there is no available space, the terms of cancellation, and a limitation on future expansion if expansion results from notice in the 32nd month.

Whether the first provision is enforceable is not relevant to the issue presented; neither party is attempting to enforce the agreement to negotiate. Further, regardless of whether the first provision is enforceable, the cancellation provision of paragraph 40 is sufficiently separate and independent to be enforced on its own. Paragraph 28 of the agreement provides,

If any term or provision of this Lease shall be invalid or unenforceable, the remaining terms and provisions hereof shall not be affected thereby; if the application of any term or provisions of this Lease to any person or circumstance shall to any extent be invalid or unenforceable, such term or provision shall remain applicable as to those persons or circumstances to which it shall be valid and enforceable; and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.

By this paragraph the parties agreed the cancellation provision would remain enforceable even if the provision for future negotiations was held invalid.

2. Mansell contends Entex could not exercise its option under paragraph 40 because it was in default since it vacated the space on January 16,1997. Under a plain reading of paragraph 40 the parties’ intentions are clear; Entex was required not to be in default either prior to or at the time it exercised the option to request expansion. See OCGA § 13-2-3. There is no evidence Entex failed to meet this requirement. Any subsequent possible default by Entex is irrelevant. If Entex’s cancellation was effective, it was bound by the lease to vacate “[n]o later than the last day of the Term.” We find no provision prohibiting Entex from vacating earlier.

3. Mansell contends the First Amendment eliminated Entex’s option to request expansion in the 32nd month of the agreement. The last sentence of paragraph 40 makes clear the parties intended that Entex could request expansion only once, at either the 32nd or the 44th month. Pursuant to the First Amendment the parties agreed to an additional expansion in the eighth month. However, the amendment also provided, “Except as expressly modified by this First Amendment, the Lease shall remain in full force and effect.” The First Amendment is not ambiguous; Entex’s option to request expansion in either the 32nd or 44th month was not eliminated.

4. Mansell contends it never triggered the cancellation provision because it never gave notice that there was no available space; rather it gave notice that space was available in a reasonable time after Entex’s request. Entex argues Mansell failed to give notice there was space available until one month after Entex gave notice of cancellation and that Mansell’s first three written responses to the request constitute notice of no available space.

The plain terms of paragraph 40 provide that Entex could cancel the lease “within ten days after Landlord notifies Tenant that there is no available space. . . .” The paragraph does not provide a deadline for when Mansell was required to notify Entex that there was no available space. If no definite time is stated for the performance of a contract, the presumption is that the parties intended that performance would be had within a reasonable time. Parker v. Futures Unlimited, 157 Ga. App. 520, 521 (278 SE2d 99) (1981); Evans v. Brown, 196 Ga. 634, 638 (27 SE2d 300) (1943). Without a deadline, the provision in the lease that time is of the essence does not alter this conclusion. See generally Mangum v. Jones, 205 Ga. 661, 667 (54 SE2d 603) (1949) (for time to be treated as of the essence there must be some expression of a certain time to perform). See also State Hwy. Dept. v. Hall Paving Co., 127 Ga. App. 625, 630 (4) (194 SE2d 493) (1972) (definite number of days to complete is sufficiently certain for making time of the essence). What is a reasonable time is a question of fact to be decided by the jury. See, e.g., Taliafaro, Inc. v. Rose, 220 Ga. App. 249, 251 (2) (469 SE2d 246) (1996); Parker v. Futures Unlimited, 157 Ga. App. at 521. Similarly, whether Mansell’s correspondence prior to September 23 constitutes notice under the contract that no space was available is a question of fact.

Therefore we reverse and remand for a factual determination of whether Mansell gave notice of no available space or failed to give notice of available space in a reasonable time. If it did either, then Entex properly terminated the lease and Entex owes the cancellation fee. If Mansell gave reasonable notice of available space, cancellation was not triggered and Entex is liable for the full term of the original lease. Accordingly, issues of interest and attorney fees must be revisited.

5. During discovery, the trial court granted in part and denied in part Mansell’s motion to compel based on Entex’s failure to properly respond to Mansell’s discovery requests. Mansell sought an order regarding four interrogatories and eight document requests. The court granted relief on all but two of the document requests. The court also granted Mansell’s corresponding request for attorney fees but only awarded $600 of the $2,300 which Mansell’s counsel testified he incurred pursuing the motion. Mansell contends it was entitled to its entire fee.

Mansell relies on the trial court’s finding that most of Entex’s discovery objections were not substantially justified and on OCGA § 9-11-37 (a) (4) (A), which provides that if the court grants the motion it “shall” require the non-movant to pay the expenses incurred pursuing the motion, with certain exceptions.

But OCGA § 9-11-37 (a) (4) (C) provides: “If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” The court here determined that two of Mansell’s discovery requests were not made with sufficient particularity. Thus OCGA § 9-11-37 (a) (4) (C) applies.

It is the general policy that absent abuse of discretion, Georgia appellate courts do not interfere with a trial court’s broad discretion with regard to discovery matters. Freeman v. Ripley, 177 Ga. App. 522 (339 SE2d 795) (1986). Determination of the reasonable expenses is likewise a matter of discretion. Dept. of Transp. v. Hardaway Co., 216 Ga. App. 262, 265-266 (3) (454 SE2d 167) (1995) overruled on other grounds Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 82 (485 SE2d 525) (1997). But in this case the court indicated that it reduced the award because Mansell’s only attempt to resolve the discovery dispute was one letter it sent in reply to Entex’s discovery responses. Uniform Superior Court Rule 6.4 (b) provides, “Prior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved.” There is no requirement in this rule that counsel for the movant make more than one attempt to resolve the discovery matter. Here, Mansell’s counsel sent a letter one day after receiving the insufficient discovery responses explaining why the responses were inadequate, offering to speak by phone to resolve the issues, and asking for a response in nine days. Entex did not respond to the letter. At that point, Mansell was entitled to pursue a motion to compel and recover its fees for so doing. We therefore vacate the award of fees and remand for consideration of the amount in accordance with OCGA § 9-11-37 (a) (4) (C).

Judgment reversed and remanded.

Smith and Eldridge, JJ, concur.

On Motion for Reconsideration.

With regard to Division 2 of the opinion, Mansell claims we overlooked a material fact in the record: a solemn admission in judicio by Entex that it vacated the premises on January 16, 1997. Entex never moved to withdraw the admission. Mansell contends this conclusively establishes that Entex failed to meet one requirement of cancellation found in paragraph 40: that in order to cancel, Entex had to be in full compliance with the lease on the cancellation date, February 17, 1997, and that Entex was in default because it vacated on January 16.

Decided June 3, 1999

Reconsideration denied July 30, 1999

Schreeder, Wheeler & Flint, Timothy C. Batten, for appellant.

Saveli & Williams, John C. Parker, Lisa J. Bucko, for appellee.

Solemn admissions in judicio as made in the pleadings are conclusive against the party making them, unless formally withdrawn from the pleadings [cit.], and a party to a suit will not be allowed to disprove an admission made in his pleadings, unless it has been withdrawn from the record. [Cit.]

Nat. Advertising Co. v. North American Ins. &c. Co., 122 Ga. App. 481 (1) (177 SE2d 510) (1970). But, the rule “applies only to admissions of fact and does not apply to opinions or conclusions. [Cits.]” Ay cock v. Calk, 228 Ga. App. 172,174 (491 SE2d 383) (1997). In Sommerfield v. Blue Cross &c. of Ga., 235 Ga. App. 375, 378 (2) (509 SE2d 100) (1998), the defendant police officer’s admission in his answer that he was acting as an employee of a private employer was held to be a legal conclusion and not binding on him.

Here the term “vacate” is used but not defined in the lease, and therefore it could mean either that all personnel have left the premises, that all personnel have left and all equipment and other property have been removed, or that the tenant has departed and ceased paying rent. Where a term is ambiguous, its construction is for the court and is a matter of law. OCGA § 13-2-1; see, e.g., Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989) (use of “vacate” in certain contractual provision not ambiguous). It is the duty of the court to attempt to resolve the ambiguity by applying the rules of construction. OCGA § 13-2-2. Because the term “vacate” was ambiguous and had to be construed, the meaning of Entex’s admission was a question of law, and Entex was not bound by the admission.

       An agreement to negotiate in the future may be different than an agreement to agree in the future. Compare Southeastern Underwriters v. AFLAC, 210 Ga. App. 444, 446 (1) (436 SE2d 556) (1993) (an agreement to agree in the future is not enforceable).


author: Smith, Judge. Eldridge, Judge,

text:
    A99A0217.
    THE STATE v. WATSON et al.
    (520 SE2d 911)
   Smith, Judge.

In this case, we must decide what constitutes a “taking” of the victim’s property so as to support a charge of armed robbery under OCGA § 16-8-41 (a). The trial court found that the State could not prove armed robbery under the undisputed facts, because it could not show a “taking” of the victim’s property. Because we conclude that the facts shown could, if proved, support a finding of a taking within the meaning of the offense of armed robbery, we reverse.

The facts established at the preliminary hearing before a magistrate are essentially undisputed. Three juveniles, Christopher Watson, Rico Simon, and Antonio King, entered a barber shop together. Watson had a haircut and gave the barber a $20 bill. The barber “felt that something wasn’t right,” partly because he recognized Watson as one of the individuals who had acted in an unusual or furtive fashion outside the shop the day before, and he made change from his pocket instead of the cash register. As the barber reached into his pocket, Antonio King jumped up from his chair, put a gun to the barber’s head and ordered him to “drop the money on the floor.” The barber dropped both the $20 and his own money on the floor. But at the same time, he pushed King’s gun away, drew a .38 caliber revolver from a holster, and shot King four times, with fatal results. One of the bullets that struck King also hit appellant Simon in the left eye. The police took photographs of the scene, including the money that was still lying on the floor.

Watson and Simon were indicted on one count of armed robbery by the use of a firearm and for other offenses not relevant here. The armed robbery count alleged that appellees “did unlawfully, with intent to commit theft, take control of money of value, from the immediate presence of [the victim] by the use of a firearm.” Watson and Simon moved to dismiss the indictment for lack of jurisdiction or, alternatively, to transfer their cases to juvenile court, on the ground that the undisputed facts showed an attempted rather than completed armed robbery. The trial court agreed that armed robbery could not be proved by the State and dismissed the armed robbery count of the indictment. This divested the trial court of jurisdiction over the remaining charges. From this ruling, the State appeals.

1. The State incorrectly contends the trial court was not authorized to test the sufficiency of the evidence and could only consider the sufficiency of the language of the indictment. See generally State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977); Kirkland v. State, 206 Ga. App. 27 (1) (424 SE2d 638) (1992). In the special case of juvenile offenders indicted under OCGA § 15-11-5 (b) (2) (A), evidence sufficient to support the allegations of the indictment is necessary to establish the superior court’s authority to exercise original subject matter jurisdiction over a matter ordinarily within the jurisdiction of the juvenile court. The judgment of a court having no jurisdiction of the person or subject matter is void and a nullity, OCGA § 17-9-4, and “it is always the duty of a court to inquire into its jurisdiction.” Williams v. State, 217 Ga. 312, 313 (122 SE2d 229) (1961); First United Church v. Udofia, 223 Ga. App. 849, 850.(1) (479 SE2d 146) (1996). In this case, the superior court correctly inquired into its jurisdiction to try juveniles Watson and Simon after they raised the issue by motion.

2. Accordingly, we reach the merits of the issue considered by the trial court, and find that the facts here are sufficient to support a finding of a “taking” within the meaning of the offense of armed robbery.

Under OCGA § 16-8-41 the slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation to meet the statutory criterion. It is not required that the property taken be permanently appropriated.

(Citations and punctuation omitted.) Miller v. State, 223 Ga. App. 453, 454 (1) (477 SE2d 878) (1996). Nor, we conclude, is it required that the defendant physically touch the property.

The incident at issue here does present a very close question of whether an armed robbery was completed. When King placed the pistol to the victim’s head and ordered him to “drop the money on the floor,” at least two other alternatives were possible. Had the victim obeyed, dropped the money, and allowed King to pick it up from the floor without resistance, the armed robbery clearly would have been completed. On the other hand, it is equally clear that had the victim responded simply by opening fire without obeying any command from King, the offense would constitute merely an attempted armed robbery. But if we focus on when “the complete dominion of the property is transferred from the true owner to the trespasser,” id., it is clear that the armed robbery was completed, though only for a short time.

This view is consistent with our earlier decision in Bramblett v. State, 191 Ga. App. 238 (381 SE2d 530) (1989). In Bramblett, the defendant kidnapped the victim and told her to drive her car to an automatic teller machine and “withdraw $300 for him.” Id. Nothing in the opinion suggests that Bramblett ever actually touched the money; indeed the facts as recited indicate otherwise, because the robbery was foiled when Bramblett left the vehicle for a short time and the victim drove away with the money still inside. Id. at 239. We held that, even though the victim escaped with the $300 still in her car, Bramblett had forced her to give him the money withdrawn from the automatic teller, and this constituted a “taking.” Id. at 239 (1). In essence, Bramblett exercised “dominion” or control over not only the victim but her car and its contents.

It is also a common sense conclusion that when a robber threatens his victim with a firearm, issues a direct order to the victim to place property in a particular location, and the victim complies with the order, the victim has relinquished and the robber has exercised control over the property. To hold the opposite would cause truly anomalous results in other close decisions. For example, a bank guard could be accosted on the street by an armed robber and ordered to place his deposit bag into an unoccupied getaway car or a suitcase on the sidewalk. If the guard obeyed the order of the robber and placed the money as commanded, but the police arrived before the robber could pick up the suitcase or enter the car, the robber would not yet have physically touched the money or carried it away. Yet it should be readily apparent that dominion over the property was transferred from the victim to the armed robber.

The dissent’s objections that this will change the,definition of a “taking” for the purpose of the lesser included offense of theft by taking are without merit. The courts in Georgia have already addressed this supposed anomaly by holding that, if a weapon is undisputedly involved, there is no lesser included offense of theft by taking. The actual holding of Jones v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998), is subtly different from the dissent’s paraphrase:

Where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation. [Cit.]

The same is true of Shepherd v. State, 234 Ga. 75, 77-78 (3) (214 SE2d 535) (1975), where no evidence contradicted the fact that an armed robbery occurred. In Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), involving charges of burglary and armed robbery, an instruction on the lesser included offense of theft by taking should have been given because there was evidence that the firearms found were not used to commit the offense but instead were merely the spoils of the burglary. No such facts are presented here, no question of a lesser included offense arises, and the dissent’s expressed concerns about the potential effect of this case on the law of theft by taking are consequently unfounded.

Moreover, the dissent has confused the mere presence of a weapon with its effect on the actions that constitute armed robbery. The use of a weapon to deprive another of property not only creates the offense of armed robbery, it enables the robber to exercise the “complete dominion” over the property described in Miller, supra. Although guns may be the subject of “politically and emotionally charged” debate, King could have used any “offensive weapon” within the meaning of OCGA § 16-8-41 (a) to exercise the complete dominion over the victim and his property required to show a completed armed robbery. The only significance of the firearm here is that the legislature has decreed that its use transfers jurisdiction over the defendants to superior court.

While the dissent also expresses concern that the facts are not yet conclusively established because the case has not yet gone to trial, we are not addressing and cannot address post-trial issues such as the sufficiency of the evidence. It would be both unjust and wasteful of judicial resources to force the defendants and the State to trial before making a determination on the threshold question of jurisdiction. The parties agree that the facts for purposes of this appeal are undisputed. Moreover, counsel for Simon stated at the motion hearing that the facts were undisputed, and counsel for Watson joined his motion. Under these circumstances, the dissent’s concerns are without foundation.

At the time the barber obeyed King’s order at gunpoint to drop the money, King exercised complete control over not only the barber but all items within the barber’s control, including the money dropped at King’s direction. The barber did not abandon his property or relinquish control over it to no one in particular; he acted at King’s order and gave the money over to King at gunpoint. That King’s exercise of control was brief and ultimately unsuccessful is immaterial. The trial court erred in dismissing the indictment.

Judgment reversed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Ruffin, Barnes, Miller, Ellington and Phipps, JJ, concur. McMurray, P. J., and Eldridge, J, concur in part and dissent in part.

Eldridge, Judge,

concurring in part and dissenting in part.

I dissent from Division 2.

Make no mistake: this case is, as they say in the vernacular, HUGE. The majority’s holding equates a “taking” with “control” and has instituted a truly radical departure in criminal law. Want an example? The offense of armed robbery may now be proved with evidence that fails to establish the lesser offenses which are included as a matter of law. Here’s how:

1. (a) Every robbery includes the elements of a theft by taking. Every armed robbery includes the elements of a robbery. OCGA §§ 16-8-40; 16-8-41 (a). Thus, the offenses of theft by taking and robbery are lesser included offenses of armed robbery as a matter of law. OCGA § 16-1-6 (2).

(b) Theft by taking, robbery, and armed robbery share the common essential element of a “taking.” OCGA §§ 16-8-2; 16-8-40; 16-8-41 (a). Since proof of the greater offense of armed robbery necessarily proves the legally included offenses of theft by taking and robbery ON THE SAME SET OF FACTS, BUT ABSENT THE WEAPON, as a matter of law, the same act must demonstrate a “taking” — with or without a gun: “Because a lesser-included offense by its very nature embodies at least one essential element of a greater offense, it is axiomatic that the defendant must necessarily be guilty of the lesser offense in order to be found guilty of the greater.” Cantrell v. State, 266 Ga. 700, 704-705 (469 SE2d 660) (1996) (Hunstein, J., dissenting); Carter v. State, 269 Ga. 420, 423 (5) (499 SE2d 63) (1998).

(c) Whenever the evidence is factually in dispute as to whether a weapon was involved in the taking, a trial judge is required to give a requested jury instruction on the legally included lesser offenses of theft by taking and robbery.

(d) On the same set of facts in this case — with no weapon — the evidence of a “taking” to prove a theft by taking is (1) King’s order to “drop the money on the floor,” and (2) the barber’s dropping of the money on the floor. This evidence does not establish a “taking” to prove theft by taking. If I tell you to drop your pen on the floor and you drop it, I have not taken your pen. I have not committed theft by taking, even if I want your pen.

(e) Thus — on the facts of this case — if King had been unarmed, he would not have, in the majority’s words, “exercised complete control over not only the barber but all items within the barber’s control, including the money dropped at his direction”; if King had been unarmed, the barber’s dropping of the money at King’s command would not demonstrate, as the majority states, that “complete dominion of the property [was] transferred from the true owner to the trespasser.”

(f) Under the majority’s analysis, it is King’s control over the barber because of the weapon that creates the “taking.” No weapon: no “taking.” Appellant Watson could admit all of the State’s facts as outlined on page 483 of the majority opinion, except the presence of a weapon, and he would be guilty of nothing. A jury charge on theft by taking could not be given as a matter of law, because with no weapon, there was no “taking” of the money. Thus, under the majority’s analysis, the greater offense of armed robbery may be proved by evidence that fails to establish the elements of theft by taking. A defendant may he guilty of the greater offense without ever having committed the lesser included offense. Now. This is an “anomalous result.”

(g) But the majority asserts that the above argument is “without merit.” The majority declares it as such because: “The courts in Georgia have already addressed this supposed anomaly by holding that, if a weapon is undisputedly involved, there is no lesser included offense of theft by taking.” (Emphasis in majority.)

With due respect, this statement captures how ill-considered the majority’s position really is.

Yes. When evidence of a weapon is undisputed, “there is no lesser included offense of theft by taking” — as a matter of FACT, for jury instruction purposes. But theft by taking remains included in armed robbery as a matter of LAW, even if the facts of a particular case do not warrant a jury instruction thereon. No court in Georgia — until now — has held that the legally included offense of theft by taking “disappears” when evidence of a weapon is undisputed, as the majority implies. The essential elements of a legally included lesser offense must always be present upon proof, undisputed or not, of the greater offense. That is the point. “A finding of [the] commission of the greater offense necessarily encompasse[s] a finding of [the] commission of the lesser included offense[s].” Carter v. State, supra at 423 (5). Thus, regardless of whether evidence of a weapon is factually disputed or not, as a matter of law the same act must show a “taking” — with or without a weapon. In this case, it does not.

Further, although irrelevant with regard to the instant issues of law, the majority also asserts that, factually, “no question of a lesser included offense arises” in this case. In my view, this statement, too, demonstrates the majority’s lack of consideration. This case has not gone to trial. The defense has not put up any evidence yet. The majority cannot know what the evidence ultimately will be based only upon the State’s bind-over evidence, even if such evidence is currently undisputed for the sole purpose of determining the superior court’s jurisdiction.

2. In point of fact, the majority has changed the essential element of a “taking” especially for the offense of armed robbery because of the presence of a gun — a politically and emotionally charged issue. The majority now finds that a “taking” is the equivalent of the exercise of control over the victim by virtue of the presence of a weapon; the majority states, as a matter of “common sense”: “when a robber threatens his victim with a firearm . . . and the victim complies with the order [to drop the money], the victim has relinquished and the robber has exercised control over the property.”

But, “control” is not the same as a “taking” for purposes of theft by taking, or robbery, or, necessarily, armed robbery. The majority creates a new form of “taking” for the commission of an armed robbery. However, in my view, only the Legislature can do what the majority has done. The proper resolution is the enactment of an armed robbery statute that makes it a crime “to take or attempt to take [property] from the person or presence of another” with an offensive weapon.

3. The fact is that under Georgia’s robbery laws, which come to us from the common law larceny, a “taking” requires the attainment of physical possession of the property by the robber, or one acting on his behalf. The majority will not, or simply cannot, address the fact that every single case in Georgia wherein the evidence was sufficient to support a charge of robbery or armed robbery — EVERY SINGLE CASE IN GEORGIA — includes the defendant, or one acting on his behalf, gaining physical possession of the victim’s property. The elemental language cited by the majority from Miller v. State, 233 Ga. App. 453, 454 (477 SE2d 878) (1996), i.e., “the slightest change of location whereby complete dominion of the property is transferred,” went only to the aspect of asportation, slight movement, AFTER Miller had already gained physical possession of the cash drawer. The only other case cited by the majority in support of such radical change in the law, Bramblett v. State, 191 Ga. App. 238 (381 SE2d 530) (1989), had nothing to do with whether a physical “taking” had occurred. It had. The issue in Bramblett was whether a “taking” had to be permanent, since the victim got her money back. A cursory reading of the facts in Bramblett, footnoted below, demonstrates that the case is ill-suited for the use the majority makes of it. Even the State was aware that, in this case, the facts did not prove a “taking.” That is why the Fulton County District Attorney indicted the defendants for “taking control” of the barber’s money, not for “taking” it as required by statute. OCGA § 16-8-41 (a).

4. To highlight the radical nature of the majority’s holding, consider these questions raised thereby:

Did Kang exercise “dominion and control” over the barber and his money, if the barber dropped the money for the purpose of freeing his shooting hand? Does a “taking” then depend on the subjective intent of the victim in complying with a robber’s orders? Did King exercise “complete dominion and control” over the barber and his money, when King ended up dead on the floor? Who had control of whom? And when? What if a victim drops money at an armed robber’s command and then retrieves it, refusing to part with it? Or takes off running with it? Is the property “taken” by the robber? When? Can a robber take “from the person or immediate presence” of a victim as required by statute, if the victim is the one who satisfies the element of asportation of the property?

How much control is enough control to equal a “taking?” If, as the majority states, King could have used “any ‘offensive weapon’ within the meaning of OCGA § 16-8-41 (a) to exercise the complete dominion over the victim and his property,” when is such “complete dominion” assumed if a victim is threatened with a stick, or a broken bottle, or a knife, or a brick? With “offensive weapons” that generally require bodily contact, how close must a robber get in order to assume “complete dominion and control” over a victim and thus his property? Is a “taking” dependent upon a victim’s subjective fear of the type of weapon being used? Or the one who is using it? These are just some of the questions raised by the majority’s new approach. I feel confident that many, many more will arise.

For what appear to me to be obvious reasons, I dissent from the majority of this Court. To me, the majority’s creation of a new category of “taking” especially for armed robbery creates an Alice in Wonderland world of trouble: a taking, is a taking, is a taking . . . except when it is not. In my view, because of the egregious nature of the facts and the climate in which it comes to us, this “bad case” is in danger of creating truly “bad law” and exemplifies perfectly why this Court should not usurp the function of the Legislature by judicially enlarging an existing criminal statute, despite our desire to address the societal ills created by the use of handguns in the commission of criminal acts. The facts of this case demonstrate an attempted armed robbery that was foiled by the barber’s use of a handgun. The trial court correctly found that the evidence failed to show a “taking.” The judgment of the court below should be affirmed.

Decided July 16, 1999

Reconsideration denied July 30, 1999

Paul L. Howard, Jr., District Attorney, Joseph F. Burford, David E. Langford, Assistant District Attorneys, for appellant.

Janet S. Willy, for Watson.

J. Robert Joiner, for Simon.

I am authorized to state that Presiding Judge McMurray joins in this opinion.

       Under OCGA § 15-11-5 (b) (2) (A) (vii), “armed robbery if committed with a firearm” is classified as one of the offenses over which the superior court has exclusive jurisdiction concerning any child 13 to 17 years of age.

        Cantrell v. State, 266 Ga. 700, 704-705 (469 SE2d 660) (1996) (cocaine possession and possession with intent to distribute), and Carter v. State, 269 Ga. 420, 423 (5) (499 SE2d 63) (1998) (misdemeanor involuntary manslaughter and felony murder), simply state the general rule on lesser included offenses and do not involve armed robbery or theft as a lesser included offense.

        Hensley v. State, 228 Ga. 501 (186 SE2d 729) (1972); King v. State, 214 Ga. App. 311, 313 (447 SE2d 645) (1994).

        Jones v. State, 233 Ga. App. 362, 363-364 (504 SE2d 259) (1998); Shepherd v. State, 234 Ga. 75, 77-78 (214 SE2d 535) (1975). See also Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994).

        Jones v. State, supra at 363-364; Shepherd v. State, supra at 77-78.

       See, e.g., 18 USCA § 2113; Miss. Code Ann. § 97-3-79; Lindsey v. State, 720 S2d 182 (Miss. 1998).

       Bramblett:
      approached the victim . . . displayed a pistol, forced his way into her car . . . [e]mptied her purse. . . had the victim drive to an automatic bank teller machine and withdraw $300 for him . . . instructed her to drive to Murray County . . . had her stop at a convenience store and cadi her husband [to get $10,000] . . . had the victim drive to another road and stop the car so he could exit and relieve himself. As he got out of the car, Bramblett slipped and dropped the gun, and the victim drove away. We reject Bramblett’s contention that because the victim escaped with the $300 still in her car, the State had failed to prove the requisite element of a “taking” for the offense of armed robbery. The victim was forced to give Bramblett the $300 withdrawn from the automatic teller machine; this was a sufficient showing of a “taking.”
      (Emphasis supplied.) Id. at 238-239.


text:
    A98A1702, A98A1703.
    FORD v. STATE OF GEORGIA (two cases).
    (521 SE2d 433)
    Decided July 30, 1999.

      J. Alfred Johnson, for appellant.

      Patrick H. Head, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
   Pope, Presiding Judge.

In Ford v. State of Ga., 271 Ga. 162 (516 SE2d 778) (1999) the Supreme Court reversed our decision in Ford v. State of Ga., 235 Ga. App. 755 (509 SE2d 734) (1998), in which we affirmed the judgment of the trial court. Accordingly, our opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Ruffin and Ellington, JJ, concur.