author: Eldridge, Judge.

text:
    A02A1320.
    SOUTHCOM GROUP, INC. v. PLATH et al.
    (570 SE2d 341)
   Eldridge, Judge.

The record shows that on September 13, 1993, appellant-plaintiff Southcom Group, Inc. and Prolific Plastics, a manufacturer of injection molded plastics then representing itself as an Alabama corporation, entered into an exclusive marketing agreement. Under the agreement, Southcom was to be compensated by commission for marketing services provided to Prolific Plastics. Pertinently, claims and disputes arising under the contract were made subject to arbitration upon the demand of either party.

Exercising this authority, Southcom filed a demand for arbitration on April 1, 1997, averring a breach of contract against Prolific Plastics for nonpayment of commissions due and owing for sales in the period 1993-1997. Based upon its discovery, on July 31, 1997, Southcom amended its demand for arbitration to identify Prolific Plastics as a partnership and to add appellees-defendants Jerry V. Plath, George Breland, and John Martin as the partners of the partnership. After a hearing, an arbitration award was entered on January 8, 1999, in favor of Southcom and against Prolific Plastics as a partnership. Southcom sought judgment confirming the arbitration award, filing on July 28, 1999, its application for confirmation of arbitration award in the Superior Court of Fayette County, naming the appellees as party-defendants in the caption thereof. The appel-lees thereafter filed their verified objection to the award, contending that Southcom’s application “must be dismissed for failure to join a party under [OCGA §] 9-ll-19[, explaining] that the award at issue was . . . against a business entity and not the individual named defendants.” In light of the appellees’ objection, on September 18, 2001, Southcom amended its application, adding a complaint for damages against them individually for breach of contract, quantum meruit, and conversion. Contemporaneously, Southcom moved for summary judgment thereon, in the event its application for confirmation of arbitration award was denied. The appellees timely filed their response and a cross-motion for . summary judgment, arguing the arbitration award as res judicata, foreclosing the confirmation of an award upon parties against whom no award was entered, as well as summary judgment upon Southcom’s complaint for damages in the alternative.

Southcom appeals from the superior court’s order (1) denying it summary judgment for the arbitrator’s award as finding liability in Prolific Plastics but omitting a finding as to joint and several liability in the appellees as partners, and, on the same rationale (2) dismissing its application for confirmation of arbitration award, as amended, for failure to state a claim upon which relief may be granted against the appellees. Southcom contends, among other things, that the superior court’s order was error in that its application for confirmation of arbitration award, as amended, was sufficient to state a cause of action against the appellees in their capacity as partners in Prolific Plastics. We agree and reverse. Held-.

1. In Georgia, “|j]udgments may be entered and executed against partnerships, and service of process on one or more of the partners will authorize a judgment against the partnership binding all firm assets, and individually binding the property of the partners who are served." Atlanta Warehouses v. Housing Auth. &c., 143 Ga. App. 588, 594 (5) (b) (239 SE2d 387) (1977); Newton, Inc. v. Alex, 162 Ga. App. 664 (292 SE2d 121) (1982); Higdon v. Williamson, 10 Ga. App. 376 (1) (73 SE 528) (1912). “Except [as inapplicable here], all partners are jointly and severally liable for all debts, obligations, and liabilities of the partnership.” OCGA § 14-8-15 (a). In this regard, we have explained that a partnership is not an entirely separate legal entity. Rather it is but “ ‘somewhat so; the partners, as to partnership debts, are joint contractors; and each is the agent of the other to a limited extent. When suit is brought for a debt due by the partnership, the plaintiff may hold the individual partners liable by serving them.’ [Cits.]” Atlanta Warehouses v. Housing Auth., supra.

It is undisputed in the record that the arbitrator’s award was for Southcom and against Prolific Plastics as a partnership upon an amended demand for arbitration, served upon counsel for Prolific Plastics, identifying Prolific Plastics as such and further identifying the appellees as the partners thereof. The appellees have not in any way challenged the authority of counsel to acknowledge service on their behalf, see OCGA § 9-11-4 (e) (7) (Service may be made “by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.”); see also OCGA § 9-10-73 (Defendants may acknowledge service of process “by a writing signed by . . . someone authorized by [them].”). And their counsel for the arbitration is estopped from doing so. See generally Newell v. Brown, 187 Ga. App. 9 (369 SE2d 499) (1988). Neither is there any dispute in the record that Southcom served each of the appellees as partners by their application for confirmation of arbitration award specifically pleading therein and again by their amendment to the application that the appellees constituted the partnership Prolific Plastics. “ ‘Service of a partner is always good service of the firm, and notice to a partner is always notice to the firm.’ Ferry & Co. v. Mattox & Turner, 2 Ga. App. 104, 106 (58 SE 291) (1907).” Newton, Inc. v. Alex, supra.

Further, although Southcom did not name Prolific Plastics as a defendant in its application for confirmation of arbitration award, dismissal on this account was unwarranted. The caption of a case or the style thereof is generally not considered to be part of the petition. Anderson v. Bruce, 248 Ga. App. 733, 735 (2) (548 SE2d 638) (2001). While “a plaintiff may make a caption or title of a petition a part thereof by an appropriate allegation to that effect in the body of the petition [,] the names of the parties to an action must appear either in the caption of the petition or in the body.” (Punctuation omitted; emphasis supplied.) Id., citing Shaef Chem. Co. v. Cook, 106 Ga. App. 223 (126 SE2d 806) (1962). Southcom brought its demand for arbitration naming Prolific Plastics as the defendant in the caption thereof. In seeking the judgment of the superior court confirming the arbitrator’s award, Southcom named the appellees individually as defendants. However, by the body of their pleadings, the appellees clearly identified Prolific Plastics and its individual partners as party-defendants. Viewing the entirety of the pleadings, we are satisfied that the appellees were properly named as parties. See id. at 225 (complaint as whole looked to for determining whether party-defendant properly named); accord Anderson v. Bruce, supra at 735-736 (2); Rowland v. Rowland, 204 Ga. 603, 606 (3) (50 SE2d 343) (1948).

Decided July 23, 2002

Reconsideration denied August 15, 2002

Mark D. Oldenburg, Jeffery D. Moulds, for appellant.

R. Keith Prater, for appellees.

The parties having subjected themselves to arbitration, the arbitrator’s award as entered against Prolific Plastics as a partnership upon notice to the appellees through counsel, the arbitrator was not required to find joint and several liability in the appellees as partners in addition to finding liability in Prolific Plastics as the partnership. Atlanta Warehouses v. Housing Auth., supra; Newton, Inc. v. Alex, supra; Higdon v. Williamson, supra. Apart from the claim that confirmation of the arbitration award was improper absent a finding of joint and several liability in them by the arbitrator, the appellees do not otherwise object to the arbitration award. See OCGA § 9-9-14 (grounds warranting modification of arbitration award). It follows that judgment confirming the award of the arbitrator against Prolific Plastics as well as the appellees as its partners was not foreclosed as a matter of law. Inasmuch as the superior court ruled to the contrary, we must reverse.

2. In light of our disposition of Division 1, we need not address Southcom’s remaining claims of error.

Judgment reversed.

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

       Otherwise Southcom challenges the superior court’s order (1) as entered in the absence of a motion to dismiss for failure to state a claim for want of the proper party; (2) as entered notwithstanding the undisputed allegations of its direct complaint for damages against the appellees; and, if construed to be the grant of appellees’ motion ,for summary judgment, (3) as entered in the absence of 30 days to respond in violation of OCGA § 9-11-56 and Uniform Superior Court Rule 6.2.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A1202.
    EMILIO v. THE STATE.
    (570 SE2d 372)
   Phipps, Judge.

Ricardo C. Emilio appeals his conviction for trafficking in amphetamine. He alleges that there was insufficient evidence of the quantity of amphetamine, that the trial court’s jury charge on trafficking was erroneous, that the State improperly placed his character in evidence, and that he received ineffective assistance of counsel. We reject Emilio’s first three arguments and affirm his conviction, but we remand for a hearing on the ineffective assistance claim.

Taken in the light most favorable to the verdict, the record shows that Lieutenant Robbie Johnston and Detective Jason Bolton of the Henry County Police Department were on patrol when they saw a car speeding and veering into the oncoming lane. Johnston initiated a traffic stop. While Bolton spoke with the female driver, Johnston questioned the male passenger, who identified himself as Emilio and said he was the driver’s boyfriend.

Johnston then talked to the driver, Kimberly Mayo, who said that she owned the car. Mayo consented to a search of her purse and car. Johnston found $12,315 in cash in Mayo’s purse. At first, Mayo said the money belonged to Emilio; later, she claimed it was hers. Inside the center console of the car, Johnston found a purple cloth bag which held a small set of electronic scales and two “plastic ziploc [sic] type” bags containing a substance he believed was methamphetamine. (The substance in one of the bags later tested positive for amphetamine.) Mayo and Emilio were arrested and charged with trafficking in amphetamine.

At trial, Mayo — who had pled guilty to the lesser offense of possession of amphetamine — testified that the purple bag and its contents belonged to Emilio, as did most of the money found in her purse. She also testified that she “partially” participated in drug trafficking with Emilio. Emilio, on the other hand, testified that the bag and the money in Mayo’s purse were hers. He claimed that he did not know she was distributing drugs.

1. Emilio argues that the State failed to prove beyond a reasonable doubt that he committed the offense of trafficking in amphetamine because the evidence did not show that the purple bag contained 200 or more grams of amphetamine.

Under OCGA § 16-13-31 (e), a person who knowingly possesses 28 or more grams of amphetamine is guilty of the offense of trafficking. The applicable punishment depends on the quantity of drugs involved. Under OCGA § 16-13-31 (e) (2), if the quantity is at least 200 grams but less than 400 grams, then the person shall be sentenced to a mandatory minimum of 15 years in prison and fined $300,000. Emilio was sentenced according to that provision.

A chemist with the State Crime Laboratory testified that the substance in one of the two plastic bags found in Mayo’s car tested positive for amphetamine. She testified that i£[t]he weight of that bag was 251.1 grams” and that the “weight of the total contents” was 323.6 grams. She did not test the other bag.

Based on this testimony, Emilio claims that the evidence showed that the weight of the bag plus its contents was 323.6 grams, but the weight of the bag itself was 251.1 grams. Thus, he argues, the weight of the drugs inside the bag was 323.6 grams minus 251.1 grams — far less than the minimum of 200 grams required by OCGA § 16-13-31 (e) (2).

Although it is true that the chemist testified that “the bag” weighed 251.1 grams, it strains credulity to assume that she meant that the “plastic ziploc type” bag, alone, weighed 251.1 grams — an amount equal to approximately one-half pound. The only reasonable interpretation of her testimony is that the substance inside the bag weighed 251.1 grams, which is within the limits specified in the statute under which Emilio was sentenced. Thus, the evidence was sufficient under the standard of Jackson v. Virginia for the jury to find Emilio guilty of trafficking in 200 or more grams of amphetamine.

2. Emilio argues that the trial court erroneously instructed the jury that anyone who knowingly possesses 200 grams or more of “amphetamine or any mixture of amphetamine” commits the offense of trafficking. This language tracks OCGA § 16-13-31 (e) (2), which criminalizes the knowing possession of 200 or more grams of “methamphetamine, amphetamine, or a mixture containing either substance.” According to Emilio, the court’s charge allowed the jury to find him guilty either of trafficking in pure amphetamine or of trafficking in a mixture of amphetamine, yet the indictment charged him only with the first method of trafficking. Thus, Emilio contends that the charge ran afoul of the following principle: ££[W]hen the indictment specifies the commission of a crime by only one of several methods possible under the statute, if a reasonable [probability] exists that the jury may convict the defendant of committing the crime in a way not alleged in the indictment, it is reversible error to charge the entire Code section.”

Emilio’s argument turns on the assumption that OCGA § 16-13-31 (e) (2) specifies two different methods of committing the crime of trafficking in amphetamine — knowingly possessing 100 percent pure amphetamine or knowingly possessing a substance containing some percentage of amphetamine that is less than 100 percent. But as we pointed out in Bellamy v. State, the statute treats pure amphetamine and a mixture containing amphetamine equally; it does not establish two different methods of trafficking based on the purity of the drug.

Here, the State charged Emilio with “trafficking in amphetamine.” The evidence at trial showed that, as a result of forensic testing, the substance in question “was positive for amphetamine.” The court’s instruction to the jury that trafficking in amphetamine may be accomplished by possessing “amphetamine or any mixture of amphetamine” did not create the possibility that Emilio was convicted of an offense not charged.

3. Emilio asserts that the State unfairly placed his character into issue through Lieutenant Johnston’s testimony that Emilio told him that he had entered the country illegally from Mexico approximately two months before and was carrying false identification. But Emilio did not object to the admission of this testimony at trial, so he has waived the right to challenge it on appeal.

Emilio concedes that he has not preserved the issue for review, but contends that the error was so plain that no contemporaneous objection was necessary. Plain error is “that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” Our Supreme Court has limited consideration of plain error to death penalty cases and cases in which a judge allegedly has opined on the guilt of the accused. Although this court’s application of the plain error doctrine has been less restrictive, we have generally reserved its use for cases presenting “exceptional circumstances.”

No exceptional circumstances are present here. The alleged error is simply the improper admission of testimony implicating Emilio’s character. Emilio’s failure to make a contemporaneous objection precludes our review, and plain error analysis does not apply.

4. Finally, Emilio argues that his trial counsel was ineffective in a number of respects. The State contends that Emilio waived his ineffectiveness claim by not raising it in the trial court, but we disagree.

Decided August 16, 2002.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Alicia C. Gant, Assistant District Attorney, for appellee.

A claim of ineffective assistance of counsel must be raised at the earliest practicable moment. The claim is waived if appellate counsel had the opportunity to raise it before appeal in a motion for new trial, but did not do so. Waiver does not occur, however, “where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is properly raised for the first time on appeal.”

Emilio’s trial counsel filed a timely notice of appeal and motion for new trial. Eight months later, trial counsel withdrew the motion for new trial. Approximately one year later — and less than two months before Emilio’s appellate brief was due — appellate counsel first entered an appearance. Under these circumstances, appellate counsel did not have an adequate opportunity to raise Emilio’s ineffectiveness claim in the trial court and has properly made it for the first time in this court.

Nevertheless, because no evidentiary hearing has been held on the claim and the record is insufficient to allow us to consider it, we remand to the trial court solely for a determination of the ineffectiveness claim. If the trial court finds that Emilio did not receive effective assistance of counsel, a new trial is required. If the court finds that Emilio did receive effective assistance, he shall have 30 days to appeal that ruling.

Judgment affirmed and case remanded with direction.

Andrews, P. J., and Mikell, J., concur.

       The indictment charged Emilio simply with “trafficking in amphetamine,” without indicating a specific quantity. Likewise, the verdict form indicated that the jury found him guilty of “trafficking in amphetamine,” but not in any particular amount. However, discussion on the record between the trial court and the attorneys shows that the court imposed sentence pursuant to OCGA § 16-13-31 (e) (2).

       We take judicial notice of the fact that one gram is equivalent to 0.0353 ounce. See OCGA § 24-1-4.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations omitted.) Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996).

       243 Ga. App. 575, 579 (2) (530 SE2d 243) (2000).

        Bellamy involved methamphetamine, but the statute also applies to amphetamine.

       See Boone v. State, 250 Ga. App. 133, 136 (3) (549 SE2d 713) (2001).

       (Citation and punctuation omitted.) Sanchez v. State, 234 Ga. App. 809, 811 (3) (508 SE2d 185) (1998).

        Pittman v. State, 273 Ga. 849, 850, n. 2 (546 SE2d 277) (2001); Paul v. State, 272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000).

       (Citation omitted.) Sanchez, 234 Ga. App. at 811 (3).

       See Abernathy v. State, 252 Ga. App. 635-636 (1) (556 SE2d 859) (2001) (plain error doctrine did not apply to trial court’s failure to grant sua sponte mistrial when State’s witness testified that defendant had been in prison).

        Howard v. State, 233 Ga. App. 724, 730 (7) (505 SE2d 768) (1998) (whole court).

       Id.

       (Citation and punctuation omitted.) Id.

       See Strong v. State, 263 Ga. 587, 590 (6) (436 SE2d 213) (1993); Motion v. State, 253 Ga. App. 51, 54 (5) (557 SE2d 409) (2001); Davitt v. State, 232 Ga. App. 427, 429 (4) (502 SE2d 300) (1998).

       See Mallon, 253 Ga. App. at 54 (5).


text:
    A02A1296.
    WILLIAMS v. THE STATE.
    (570 SE2d 362)
   Phipps, Judge.

A jury, found Antonio Williams guilty of two counts of rape and two counts of aggravated assault. Williams appeals, contending that the trial court (1) improperly excluded evidence of his previous consensual sex with the victims and (2) erroneously admitted DNA evidence derived from a blood sample taken after he had asked for a lawyer. As neither contention has merit, we affirm.

Taken in the light most favorable to the verdict, the evidence showed that, around 3:00 a.m. on March 4, 2000, Williams approached G. J. on a street in Thomasville and offered to pay her $10 to have sex. G. J. agreed and accompanied Williams to a vacant lot, where he hit her in the face, pushed her to the ground, had intercourse with her, and then ran away. G. J. testified that although initially she had agreed to have sex with Williams, she did not agree to do so after he hit her and pushed her down. She also testified that he never paid her any money.

Later that morning, Williams approached A. W. on a nearby street, told her that he had $20, and asked if she would “like to do something.” A. W. said “no.” Williams then hit her on the head, dragged her to an abandoned house, and had intercourse with her in the yard. While A. W. screamed for help, Williams punched her face at least 20 times. He eventually fled as police arrived.

Both G. J. and A. W. identified Williams as their attacker at a pre-trial photographic lineup, and G. J. also identified him in court. In addition, DNA testing revealed the presence of Williams’s semen in G. J.’s body shortly after the incident.

1. Williams sought to introduce evidence that he had previously had consensual sex with both G. J. and A. W, but the trial court excluded it. Williams contends that the exclusion was error.

Evidence of a rape victim’s past sexual behavior generally is not admissible. Under OCGA § 24-2-3 (b), however, such evidence may be introduced if the court finds that the victim’s past sexual behavior (1) directly involved the participation of the defendant and (2) supports an inference that the defendant could have reasonably believed that the victim consented to the conduct of which he is accused. We will not reverse a trial court’s decision to exclude evidence of a victim’s past sexual behavior unless the court abused its discretion. Moreover, we accept the factual findings and credibility determinations made by the court at pre-trial hearings on the admissibility of evidence unless they are clearly erroneous.

In this case, Williams testified that on two separate occasions in 1998, G. J. and A. W. agreed to have sex with him in exchange for money or drugs. Two other witnesses also testified that they had seen G. J. and A. W. have sex with other men in exchange for money or drugs. According to Williams, his past experiences with G. J. and A. W. led him to believe that they consented to have sex with him on March 4, 2000. Williams admitted hitting A. W. that morning, but insisted he did so after they had had sex. He denied hitting G. J.

Both G. J. and A. W. admitted that they had previously had sex with men in exchange for money or drugs. However, both denied having had sex with Williams before he attacked them on March 4, 2000. G. J. testified that she had never seen Williams before that morning, and A. W. testified that she had seen him once on the street but did not know him.

In addition, G. J. testified that Williams hit her and pushed her to the ground before having sex with her, that the sex was forcible and against her will, and that she suffered scratches on her legs from the incident. A. W. testified that when Williams had sex with her, he repeatedly told her to “shut up” and then “beat [her] up,” causing her to suffer bruises and a swollen eye. Photographs taken at the hospital shortly after the incidents were admitted to show the extent of both women’s injuries.

After hearing this evidence, the trial court found that the victims’ past sexual behavior neither directly involved Williams nor supported an inference that he reasonably believed that they consented to have sex with him on March 4, 2000. Thus, the court concluded that Williams failed to satisfy either prong of OCGA § 24-2-3 (b).

By finding that the victims’ past sexual behavior did not directly involve Williams, the court obviously believed the victims’ testimony that they had never had sex with him before the morning in question. We will not disturb that credibility determination.

Nor will we disturb the court’s conclusion that Williams did not reasonably believe that the victims consented to have sex with him. In Davis v. State, the defendant and two other men drove the victim to a back country road and raped and hit her for several hours, until she was able to escape by running naked through the woods. The defendant sought to introduce evidence that the victim had consented to have sex with him many times before in exchange for money or drugs. We ruled that the trial court did not abuse its discretion in excluding such evidence: “In light of the victim’s testimony, the trail of clothing left near the crime scene, and the evidence of her injuries, we cannot say that Davis’ claim to prior consensual sex with her substantially supports the conclusion that he reasonably believed she consented on the night of the offense.” As in Davis, the victims in this case were beaten. G. J. testified that she was pushed to the ground and hit in the face; A. W. testified that she was dragged to the yard of an abandoned house and told repeatedly to “shut up” while being punched in the face. This evidence of force and lack of consent supported the trial court’s conclusion that Williams could not reasonably have believed that the victims willingly had sex with him.

Because Williams failed to satisfy the requirements of OCGA § 24-2-3 (b), the court did not abuse its discretion in excluding evidence of the victims’ past sexual behavior.

2. Williams also argues that the trial court erred by admitting DNA evidence derived from a blood sample that was obtained after he had invoked his right to counsel. Detective Rochelle Denmark of the Thomasville Police Department testified that after Williams was arrested, she read him his Miranda rights and he asked for a lawyer. Denmark then requested a sample of Williams’s blood for DNA testing, and he consented. Williams claims that Denmark’s request violated the rule announced in Edwards v. Arizona and Michigan v. Jackson that after an accused in custody invokes his right to counsel, he cannot be further interrogated until counsel is present, unless the accused initiates further communication with the authorities.

This contention is without merit. In Schmerher v. California, the United States Supreme Court held that a blood sample, although potentially incriminating, is not testimonial or communicative in nature. Thus, the State does not violate an accused’s privilege against self-incrimination by requesting that he give a blood sample, or even by compelling him to do so. Because Denmark’s request that Williams give blood was not a form of interrogation, Edwards v. Arizona and Michigan v. Jackson do not apply.

Decided August 16, 2002.

Oliver R. Register, for appellant.

J. David Miller, District Attorney, James E. Hardy, James L. Prine, Assistant District Attorneys, for appellee.

Moreover, because the State could have drawn Williams’s blood even without his consent, the fact that Denmark sought Williams’s consent when he was unrepresented did not infringe upon his right to counsel. In Schmerber, the state drew Schmerber’s blood over his objection, which was made on the advice of counsel. Schmerber argued, among other things, that the state violated his right to counsel. The Court squarely rejected this claim:

Since [Schmerber] was not entitled to assert the privilege [against self-incrimination], he has no greater right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel’s advice, to be left inviolate. No issue of counsel’s ability to assist [Schmerber] in respect of any rights he did possess is presented.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See Sweeney v. State, 233 Ga. App. 862, 863 (1) (506 SE2d 150) (1998).

       A. W. testified that Williams did not ejaculate while raping her because he was preoccupied with hitting her.

       OCGA § 24-2-3 (a).

       Such evidence also may be admitted under OCGA § 24-2-3 (c) (2) if the trial court finds that it is “so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” Although Williams relied on this ground at trial, he does not do so on appeal. Therefore, we do not consider it.

        Davis v. State, 235 Ga. App. 362, 363 (1) (509 SE2d 655) (1998).

       See, e.g., Hicks v. State, 255 Ga. 503 (1) (340 SE2d 604) (1986); Yarbrough v. State, 241 Ga. App. 777, 779 (2) (527 SE2d 628) (2000).

       Supra.

       Id. at 363 (1).

       451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981).

       475 U. S. 625 (106 SC 1404, 89 LE2d 631) (1989).

       See Roper v. State, 258 Ga. 847, 849 (1) (375 SE2d 600) (1989).

       384 U. S. 757 (86 SC 1826, 16 LE2d 908) (1966).

       Id. at 765.

       See Scanlon v. State, 237 Ga. App. 362, 363-364 (1) (514 SE2d 876) (1999).

        Schmerber, supra at 765; see also Allen v. State, 254 Ga. 433, 434 (1) (a) (330 SE2d 588) (1985) (“In Georgia, the state may constitutionally take a blood sample from a defendant without his consent. [Cit.]”).

       Schmerber, supra at 766.


author: Barnes, Judge.

text:
    A02A1322.
    In the Interest of N. G. et al., children.
    (570 SE2d 367)
   Barnes, Judge.

Following a hearing, the DeKalb County Juvenile Court terminated the parental rights of the mother of N. G. and A. W. B. The mother appeals, arguing that the juvenile court lacked clear and convincing evidence that the children were without proper parental care and control. We disagree and affirm.

In reviewing a parent’s challenge to the sufficiency of the evidence, we determine whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found by clear and convincing evidence that a natural parent’s right to custody has been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine witness credibility, but defer to the juvenile court’s factfinding. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

Viewed in this light, the evidence shows that the two children came into custody of the Department of Family & Children Services (DFCS) on March 23,1998, after their mother left them with a friend and did not return. The record in this case is voluminous because DFCS took emergency custody of the mother’s other five children, then ages nine, six, three, one, and eight months, on December 4, 1991. We will review the evidence beginning with this first DFCS encounter.

On December 30,1991, the juvenile court found the five children to be deprived because their parents “suffer from chronic substance abuse problems which interfere with their ability to provide responsible care and supervision for the children. Further, both mother and father lead unstable lifestyles.” This order was not appealed.

On June 24, 1993, the juvenile court again concluded that the children were deprived, finding that the parents’ whereabouts were unknown and the mother had made no substantial progress toward completing the goals in her case plan. Temporary custody of the children was continued in DFCS every six months, until guardianship of the two oldest children, then ages fifteen and twelve, was transferred to a family member in February 1998. Within two months, custody of the oldest, a girl, was transferred back to DFCS.

After DFCS took custody of N. G. and A. W. B. in March 1998, the department developed a case plan in March 1998 for the mother’s reunification with these girls, who were born on December 7, 1993, and January 28, 1996. Her goals were to provide 24-hour supervision of the children, remain drug free, cooperate with DFCS, and pay child support. Steps involved in cooperating with DFCS included giving the case manager current addresses, telephone numbers, and other important information such as employment; attending panel reviews; and contacting the case manager regularly regarding progress toward these goals.

Three months later, in June 1998, a panel review recommended that the oldest girl be emancipated and the mother’s parental rights in the three boys who had been in DFCS custody for seven years be terminated. On December 3, 1998, regarding these boys, the juvenile court again concluded that the three boys were deprived, finding that when a deprivation petition was filed in October 1998, the mother was in jail and had been “unable to maintain sobriety and remain drug free.”

In January 1999, the court adopted DFCS’s case plan for the six children still in the department’s custody, which recommended that the oldest girl be emancipated, the three boys be adopted, and the two girls stay with their out-of-state relative. In February 1999, DFCS filed for a custody extension and a petition to end reunification services as to the two girls, alleging the mother had not maintained regular employment and had not kept in contact with DFCS. Meanwhile, in August 1999, the juvenile court issued an order finding that N. G. and A. W. B. were deprived. That order was not appealed.

In June 1999, DFCS petitioned for termination of the mother’s parental rights in the boys and in August 1999 petitioned for termination in the two youngest girls, N. G. and A. W. B. The mother’s whereabouts were unknown at the time; the caseworker filed an affidavit in which she stated that she contacted the mother by pager, and the mother said she did not have a permanent place of residence, was staying with different friends, and did not have a mailing address either.

The juvenile court terminated the mother’s parental rights in the boys on October 26,1999, noting in its order that the mother consented to the termination.

The juvenile court then held a hearing on January 19, 2000, to consider extending custody with DFCS, the nonreunification petition, and the termination petition as to N. G. and A. W. B. The mother was not present, although she had been present at court the month before when the hearing was reset. Her attorney moved for a continuance, explaining that the mother was in Virginia working on obtaining public housing and was unable to attend, but the court denied the motion.

The DFCS case manager testified that the mother had had a reunification plan with the department since 1991, but had never achieved the goal of establishing a safe and stable home. While N. G. and A. W. B. were residing in Georgia under DFCS custody from March 1998 to December 1998, the mother visited them five times. The children moved to Virginia in December 1998 to live with one of the girls’ paternal grandparents, who now regularly take them to visit their mother, who also moved to Virginia. The mother’s contact with the caseworker had been sporadic, calling two or three months in a row and then skipping the next two or three months. Further, she had never called and said she had a residence established for the children to live in. While the caseworker tried to maintain the mother’s address in her files, she was rarely successful. Although in 1998 the mother obtained Section Eight housing and received financial assistance to obtain furniture, she would not allow the caseworker inside the residence during home visits in October 1998 and again in November 1998. In February 1999, no one was home when the caseworker arrived for a home visit, and in March 1999, the mother said she no longer lived there, was staying with friends, and had no permanent address. When the mother called in December 1999 to say she was trying to obtain public housing in Virginia, she had to ask the caseworker for her children’s birth dates and Social Security numbers. Additionally, the mother had never met her goal of obtaining regular employment, having worked only three months out of the previous twelve, and had paid no child support in 1999. The juvenile court terminated the mother’s parental rights to N. G. and A. W. B. in an order filed February 17, 2000.

Determining whether parental rights should be terminated involves a two-step analysis. In the first step, the court must find parental misconduct or inability, supported by clear and convincing evidence that: (a) the child is deprived; (b) lack of proper parental care or control caused the deprivation; (c) the cause of the deprivation is likely to continue; and (d) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A) (i)-(iv); In the Interest of L. H., supra, 236 Ga. App. at 132-133 (1). Further, “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” (Citations and punctuation omitted; emphasis in original.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); see also In the Interest of D. C. N. K, 232 Ga. App. 85, 90 (501 SE2d 268) (1998).

If these four factors exist, then the court must take the second step and determine whether terminating parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-94 (a).

We must review the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody has been lost. In the Interest of A. C., supra, 230 Ga. App. at 396. In this case, ample clear and convincing evidence of the four factors established parental misconduct or inability. First, the unap-pealed deprivation orders of the juvenile court are sufficient to establish that the children were deprived within the meaning of OCGA § 15-11-94 (b) (4) (A) (i). In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

Second, the juvenile court was authorized to determine that the mother’s failure to comply with the reunification plan established her lack of proper parental care and control. In the Interest of A. B., 251 Ga. App. 827, 830 (2) (555 SE2d 159) (2001). Here, the record amply supports the juvenile court’s conclusion that the mother failed to comply with the plan. The mother argues on appeal that clear and convincing evidence did not support the trial court’s finding that the children lacked proper parental care and control, as required by OCGA § 15-11-94 (b) (4) (A) (ii). She contends that she had made significant progress toward meeting her case goals when the court terminated her parental rights, citing two citizens review panel reports from January 1999 and July 1999. She further contends that DFCS failed to make a good-faith effort to reunify her with her children.

Citizens review panel reports contain hearsay that cannot be considered in determining whether clear and convincing evidence supports the termination of a parent’s rights. In the Interest of M. L. P., 231 Ga. App. 223, 224 (498 SE2d 786) (1998). “The citizen’s review panel’s findings of fact and recommendations are not legal evidence as the panel is not a court of record and its actions are not necessarily in compliance with regard to legal due process considerations.” Id. Therefore, the panel review conclusions do not constitute evidence that the mother substantially complied with her reunification goals. Additionally, the State presented evidence that the mother failed to maintain regular employment, establish a home, stay in contact with the caseworker, or pay child support. Clear and convincing evidence supports the trial court’s finding that the children lacked proper parental care and control.

Third, in determining whether the children’s deprivation is likely to continue, the juvenile court may consider the parent’s past conduct. In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998). In this regard, the court had an opportunity to consider evidence showing that, for nine years, the mother failed to meet the reunification goals regarding her older children. This clear and convincing evidence supports the juvenile court judge’s conclusion that the children’s deprivation was likely to continue.

Fourth, clear and convincing evidence showed that continued deprivation likely would harm the children. Based on the evidence presented, we find that a rational factfinder could have found by clear and convincing evidence that the children’s deprivation was likely to continue and have a detrimental effect on them. In the Interest of L. S. F., 217 Ga. App. 478, 481 (458 SE2d 370) (1995).

As to the second prong of the termination analysis, the evidence also was sufficient to show that termination of appellant’s parental rights was in the best interests of the two children. We have held that “the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” (Citations omitted.) In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998). Here, the evidence showed that the children had been in foster care for two years and need a stable home, and the foster parents, who are A. W. B.’s paternal grandparents, were ready to adopt both girls. Additionally, the same factors that show the mother’s instability support a finding that termination of parental rights would be in the children’s best interests. Id.

Decided August 16, 2002.

Ann N. Garner, for appellant.

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

Accordingly, we affirm the order of the juvenile court terminating appellant’s parental rights.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       The second oldest child remained in the custody of a relative.

       The record indicates that the juvenile court clerk encountered some difficulty-obtaining a transcript of the termination hearing, hence the lengthy delay in docketing this appeal.


text:
    A02A1415.
    HARDNEY v. THE STATE.
    (570 SE2d 379)
   Phipps, Judge.

At an unreported bench trial, Allen Hardney was convicted of the misdemeanor offense of drag racing. In this pro se appeal, he claims that the evidence was insufficient to support his conviction and that his trial counsel was constitutionally ineffective. Because the absence of a transcript or a substitute therefor precludes review of these claims, we affirm.

A person charged with a misdemeanor bears the burden of requesting a trial transcript or constructing a trial record. Hardney did neither. His challenge to the sufficiency of the evidence is based on material attached as an exhibit to his brief. “ ‘Exhibits contained in an appellate brief which do not appear in the record or transcript cannot be considered by this court and afford no basis for reversal.’ [Cit.]” Hardney claims that counsel was ineffective because he failed to conduct a proper investigation and prepare a necessary legal defense. This claim, too, cannot be reviewed on the basis of the record before us. Moreover, Hardney’s failure to avail himself of the opportunity to assert his claim of ineffective assistance by motion for new trial before appeal constitutes a procedural bar to raising it now.

Decided August 16, 2002.

Allen Hardney, pro se.

Richard H. Taylor, Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

       See OCGA § 40-6-186.

        Adams v. State, 234 Ga. App. 696, 697 (2) (507 SE2d 538) (1998).

        Stebbins v. Ga. Power Co., 252 Ga. App. 261, 262 (555 SE2d 906) (2001).

       See Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996); Threlkeld v. State, 250 Ga. App. 44, 45 (1) (550 SE2d 454) (2001).


text:
    A02A1423.
    HERSI v. THE STATE.
    (570 SE2d 365)
   Barnes, Judge.

A jury convicted Saeed Hersi of aggravated assault and aggravated battery, and the trial court sentenced him to serve five years of a twelve-year sentence. He appeals, contending that his trial counsel was ineffective for selecting Hersi’s brother “to act as an interpreter,” and that the lack of an adéquate interpreter violated his rights to due process and to confront the witnesses against him. For the reasons that follow, we affirm the conviction.

The evidence at trial established that Hersi, the victim, and several other men had gathered at Hersi’s apartment to watch soccer on April 6, 1998. Hersi’s roommate testified that everyone was drinking and having a good time, and then after the game, Hersi and the victim began to talk to each other in Somali, which the others could not understand. The victim testified that Hersi had been harassing the women who lived upstairs, calling them names and trying to get them to talk to him, so the victim asked Hersi several times to leave. Instead, Hersi stood at the doorway cursing and pushing the victim, and then struck him with a bottle.

The victim testified that he grabbed a broomstick for defense, and the two men went outside. His roommate testified that he saw the victim on his back on the ground, holding the broomstick in front of his face with both hands up. Hersi hit the broomstick and broke it in two and then began cutting the victim with a broken bottle, three times on his right arm, once on his left arm, the back of his head, his face, his upper back, his leg, and on his hands. The victim testified that he lost consciousness and woke in the hospital, where he had more than 100 stitches. His left hand is now totally disabled due to nerve damage from one of the cuts. The roommate saw no injuries on Hersi, who was two or three inches taller than the victim.

1. Hersi alleges that his trial counsel was ineffective for failing to obtain an adequate interpreter for him. “In order to establish a claim of ineffective assistance of counsel, the appellant must show both that counsel’s performance was deficient and that a reasonable probability exists that but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984).” Davis v. State, 221 Ga. App. 131, 133 (3) (470 SE2d 520) (1996).

Trial counsel testified at the motion for new trial hearing that he met with Hersi about ten times before trial, and that his brother and sister were always present. He could communicate directly with Hersi to some extent; while Hersi was not fluent in English, he had a working ability to communicate, and his brother helped explain anything that Hersi was not clear about. Hersi did not have extensive education, and trial counsel was concerned enough to request that the trial court allow Hersi’s brother to sit at counsel table to interpret anything Hersi did not understand. During “hours and hours” of conversation with Hersi on many occasions, there was never a single instance when Hersi’s brother could not comprehend everything, so trial counsel knew that the brother was competent to explain any questions Hersi had. It was trial counsel’s impression that Hersi understood everything that was said at trial; counsel used an official interpreter for Hersi’s testimony out of “an abundance of caution,” not because Hersi could not understand the proceedings. Trial counsel also testified that Hersi’s brother made a very good appearance, and for reasons of trial strategy, counsel wanted him seated at the defense table.

“The use of an interpreter, and the extent to which he may be used in the examination of a witness, must necessarily lie within the sound discretion of the trial judge.” (Citations and punctuation omitted.) Gonzales v. State, 182 Ga. App. 594 (356 SE2d 545) (1987). We have carefully examined the record in this case and conclude that defendant’s command of the English language, although not perfect, was such that the absence of an official interpreter other than his brother clearly did not result in a denial of his right to meaningfully participate in the proceedings against him. Additionally, Hersi has not pointed to any specific harm that befell him due to his alleged failure to understand the proceedings, or which part of the proceedings he did not understand. Therefore, the trial court did not err in concluding that trial counsel was not ineffective for failing to obtain an official interpreter for Hersi’s use at trial. See Choi v. State, 269 Ga. 376, 377 (3) (497 SE2d 563) (1998); Meja v. State, 232 Ga. App. 548, 549 (2) (502 SE2d 484) (1998).

Decided August 16, 2002

Laila A. Washington, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Robert E. Statham III, Assistant District Attorneys, for appellee.

2. Hersi also contends that the lack of an adequate interpreter violated his rights to due process and to confront the witnesses against him. While Hersi’s brother testified at the motion for new trial hearing that trial counsel never talked to Hersi about his right to testify or not, about using an interpreter, about his ability to understand English, or about a guilty plea, trial counsel testified to the contrary. He testified that he held numerous conversations with Hersi and his brother about the legal process, and talked a great deal about Hersi’s right to testify or not testify. He discussed plea negotiations extensively with Hersi and with the prosecution, but Hersi was convinced he would be deported upon any felony conviction and thus did not plead guilty. Further, Hersi and trial counsel had extensive discussions about having an interpreter during Hersi’s testimony and the importance of not lapsing into English while he was testifying.

The trial court obviously believed trial counsel’s testimony that Hersi understood a great deal of the proceedings and trial testimony, and that counsel held numerous conversations with Hersi regarding his rights during the trial. “[W]e cannot say that this credibility determination was clearly erroneous.” Young v. State, 254 Ga. App. 262, 264 (1) (562 SE2d 231) (2002). Therefore, the trial court did not err in denying Hersi’s motion for new trial.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Mikell, Judge.

text:
    A02A1487.
    GILES v. THE STATE.
    (570 SE2d 375)
   Mikell, Judge.

A jury convicted Oliver Carlson Giles of aggravated stalking, OCGA § 16-5-91, and the court sentenced him to ten years confinement. Acting pro se, Giles now appeals the trial court’s order denying his “motion to vacate void judgment of conviction and sentence,” arguing that the court erred in finding that the temporary protective orders issued against him were valid. We affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the record shows that on December 21, 1998, Giles attacked the victim, Miyoshi Hill, outside her home after he saw her with a male friend. According to Hill, Giles punched and kicked her in the face, dragged her down a hill, and smashed her head against a telephone pole. Hill reported the incident to the Atlanta Police Department, and a warrant was issued for Giles’ arrest.

Hill filed a petition for a temporary protective order against Giles on January 26, 1999. That same day, Judge Charles L. Carnes, a Fulton County Senior State Court judge sitting by designation as a superior court judge, issued a temporary protective order and signed a rule nisi setting the matter for a hearing on February 4, 1999. Both parties appeared at the hearing, where Judge R. Wayne Pressley, a magistrate judge sitting by designation as a superior court judge, issued a six-month protective order under the Georgia Family Violence Act. The order required that Giles not come within 200 yards of Hill or attempt to contact her.

Despite Judge Pressley’s protective order, there is evidence that Giles continued to write Hill numerous letters and made at least two visits to her home. On June 9, 1999, Giles went to Hill’s home and ran toward her. A neighbor intervened, preventing any physical contact, but it was clear that Giles came within 200 yards of Hill. On June 27, 1999, Giles again appeared at Hill’s residence. Because it was late at night, Hill had gone first to a police station, where she asked an officer to follow her home. Officer D. R. Terrell escorted Hill to her home. Hill noticed Giles walking down her street. When Giles saw Hill and the officer, he hid inside his car, which was parked near Hill’s residence. Officer Terrell arrested Giles.

Giles was indicted on one count of aggravated stalking on October 8, 1999. He filed a motion to quash the indictment, in which he argued, among other things, that the trial court did not have jurisdiction to enter the protective order against him, and, therefore, that the indictment alleging violation of the protective order was void. Judge William Daniel held a hearing on April 18, 2000, and denied Giles’ motion. The case proceeded to trial on June 5, 2000, and Giles was convicted on June 8. He filed a notice of appeal on June 19, 2000, but his appeal was dismissed by this Court on January 8, 2001. Giles filed a “motion to vacate void judgment of conviction and sentence” on April 9, 2001. Following a hearing, Judge Daniel denied the motion. It is from that order that Giles appeals.

1. First, Giles argues that the trial court erred in finding that the initial temporary protective order entered by Judge Carnes and the six-month protective order entered by Judge Pressley were valid. He contends that Judge Pressley’s February 4,1999 order is void for lack of subject matter jurisdiction, because “Judge Pressley was sitting in Courtroom G-33 of the Justice Center Building at 160 Pryor Street which is State Court,” and protective orders filed under the Georgia Family Violence Act fall within the jurisdiction of superior court. Giles further argues that Judge Carnes, a senior state court judge, did not have the authority to issue the January 26, 1999 temporary protective order. According to Giles, because the temporary protective orders were void, the superior court did not have jurisdiction to convict him of aggravated stalking. We find no error in the court’s denial of Giles’ motion to vacate his conviction.

The court properly concluded that the six-month protective order issued by Judge Pressley was valid. As the Supreme Court recognized in Massey v. State, 265 Ga. 632, 633-634 (3) (458 SE2d 818) (1995), OCGA § 15-1-9.1 (b) (2) authorizes superior courts to request the temporary assistance of an additional judge or judges from other Georgia courts whenever such assistance is necessary. The Supreme Court held that the designation of a magistrate to assist the requesting court “cloaked the magistrate with statutory and constitutional authority to exercise the judicial power of the superior court.” Massey, 265 Ga. at 634 (2). A designating order must provide the scope and length of an assisting judge’s service in order to be valid. Smith v. State, 250 Ga. App. 128, 129-130 (1) (550 SE2d 683) (2001).

In the case sub judice, the order designating Judge Pressley to assist the Superior Court of Fulton County was valid. The order explicitly provided the length of Judge Pressley’s service as February 2, 3, and 4, 1999, and the scope of his duties as assisting with “the routine matters that would normally appear before Judge Constance C. Russell, the Presiding Judge, and such other matters that may arise therefrom.” Finally, the order cloaked Judge Pressley with “all the same authority and powers exercised by the Fulton County Superior Court Judges regularly presiding in the Atlanta Judicial Circuit.” Regardless of his location, it is clear from the record that Judge Pressley had the authority to enter the six-month protective order Giles was charged with violating. The trial court properly denied Giles’ motion to vacate his conviction on this ground.

We need not consider the validity of the order designating Judge Carnes to assist the superior court. His temporary protective order against Giles was effective only from January 26 until February 4, 1999, and the evidence shows that Giles repeatedly attempted to contact Hill after Judge Pressley’s February 4 order was entered. Thus, the conduct on which Giles’ aggravated stalking charge was based was in violation of Judge Pressley’s valid six-month protective order. Therefore, we need not decide whether the designation order regarding Judge Carnes was proper. See Hicks v. State, 231 Ga. App. 552, 556-557 (2) (499 SE2d 341) (1998) (this Court found that it was not necessary to determine whether requests for assistance were truly temporary in order to decide the case).

2. In two related errors, Giles argues that the trial court did not have jurisdiction to issue the six-month protective order under the Georgia Family Violence Act, OCGA §§ 19-13-1 through 19-13-6, because he and the victim had never been married to each other, did not reside in the same house, and did not have children together. We disagree and affirm.

When Hill filled out the pre-printed petition seeking relief from family violence, she selected the option which described her relationship to Giles as “stalking victim and stalker.” On its face, we find this to be an accurate description of the relationship. Giles seems to argue that because he and Hill were not members of the same family, Hill’s petition did not authorize the superior court to enter a protective order against him under the Georgia Family Violence Act, OCGA §§ 19-13-1 through 19-13-6. We disagree and conclude that the superior court had subject matter jurisdiction to enter the protective order against Giles.

OCGA § 16-5-94 (a) of the stalking statute provides that “[a] person who is not a minor who alleges stalking by another person may seek a restraining order by filing a petition alleging conduct constituting stalking as defined in Code Section 16-5-90.” OCGA § 16-5-90 (a) (1) provides, in pertinent part:

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. For the purpose of this article, . . . the term “contact” shall mean any communication including without being limited to communication in person . . . [or] by mail. . . .

Significantly, OCGA § 16-5-94 (b) expressly states that jurisdiction over a petition for a restraining order under this Code section “shall be the same as for family violence petitions as set out in Code Section 19-13-2.” That section of the Georgia Family Violence Act gives jurisdiction to the superior court of the county in which the respondent resides. OCGA § 19-13-2 (a). Under OCGA § 15-6-9 (3), superior court judges have the inherent authority to enjoin a person from engaging in certain behavior. Thus, a superior court judge has the authority to issue a protective order under the stalking statute, OCGA § 16-5-94, or the family violence act, OCGA § 19-13-2. Consequently, the fact that the protective order was issued under the Georgia Family Violence Act does not affect the court’s jurisdiction.

Further, in Ganny v. Ganny, 238 Ga. App. 123 (518 SE2d 148) (1999), we held that

it is well established that “there is no magic in nomenclature. A document is to be construed by its substance or function, rather than by its name. [Cits.]” Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 SE2d 252) (1998). Regardless of whether the order was denominated a family violence order, it was surely within the power and authority of the superior court, after hearing the evidence of [a party’s] conduct, to enjoin [him] from approaching or harassing [the victim]. See generally OCGA § 15-6-9.

Id. at 126 (5). In the case sub judice, the substance and function of the six-month protective order issued by Judge Pressley were to protect Hill and to enjoin Giles from having contact with her. Additionally, the order expressly provided that “any violation of this Order will be considered a violation of OCGA § 16-5-90 and will subject the Respondent to prosecution of Aggravated Stalking, a violation of OCGA § 16-5-91, a felony.” Accordingly, the trial court did not err in denying Giles’ motion to vacate his conviction on this ground.

3. Giles has filed a motion asking this Court to order the superior court to return him to the Fulton County Jail during the pendency of his appeal. The record shows that on June 21, 2000, Judge Daniel ordered that Giles remain at the Fulton County Jail until he. exhausted his appeal or until further order of the court. In his motion, Giles refers to a subsequent order by Judge Constance Russell that he be transferred to the Georgia Department of Corrections. This order has not been included in the voluminous record.

In Helmeci v. State, 230 Ga. App. 866, 870-871 (5) (498 SE2d 326) (1998), we recognized that, in certain circumstances, a defendant has a right to remain in the county jail pending the disposition of all appeals in his case. In that case, we cited OCGA § 42-5-50 (c), which provides:

Decided August 16, 2002

Oliver Giles, pro se. .

Paul L. Howard, Jr., District Attorney, Amira S. AbuBakr, Assistant District Attorney, for appellee.

In the event that the attorney for the convicted person shall file a written request with the court setting forth that the presence of the convicted person is required within the county of the conviction, or incarceration, in order to prepare and prosecute properly the appeal of the conviction, the convicted person shall not be transferred to the correctional institution as provided in subsection (b) of this Code section. In such event the convicted person shall remain in the custody of the local jail or lockup until all appeals of the conviction shall be disposed of or until the attorney of record for the convicted person shall file with the trial court an affidavit setting forth that the presence of the convicted person is no longer required within the county in which the conviction occurred, or in which the convicted person is incarcerated, whichever event shall first occur.

The record in the case sub judice does not contain a written request setting forth that Giles’ presence is required in Fulton County in order to pursue the appeal, as required by the statute. Accordingly, the motion to order the trial court to return Giles to the Fulton County Jail is hereby denied.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


text:
    A02A0899.
    McCLAM v. THE STATE.
    (570 SE2d 380)
   Barnes, Judge.

A jury convicted Rollin McClam of three counts of armed robbery, one count of kidnapping, and three counts of possession of a firearm by a convicted felon. He appeals, contending that insufficient evidence supports the convictions. Based on this contention, he alleges that the trial court erred in dismissing his motion for a new trial. For the reasons that follow, we affirm.

We view the evidence in the light most favorable to the verdict, no longer presuming the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence at trial established that on February 16, 1996, two men robbed Grandpa’s Store, a small grocery store in Gwinnett County, while holding an employee at gunpoint. The employee testified that he knew McClam as a regular customer but did not see or hear him during the robbery. On March 8, 1996, two men followed a manager of the Piccadilly Cafeteria in Gwinnett County to his home in Cobb County, kidnapped him at gunpoint, and, after driving the victim back to the restaurant, robbed the Piccadilly. After the robbery, the victim’s keys were given back to him and the robbers left the restaurant.

On July 1, 1996, two men kidnapped the manager of a Ryan’s Steakhouse from his home, forcing him into his own car at gunpoint. The men attempted to use the victim’s ATM card to withdraw funds from his bank account, but were unsuccessful. Afterward, they took the victim to Ryan’s and robbed the restaurant. The men drove the victim to a nearby parking lot, left him in his car, and informed him where he could locate his keys once they were gone.

Demetrius Shelby and Octavian Brown both pled guilty to the armed robbery charges. Shelby and Brown were sentenced and agreed to testify against their co-defendant, McClam. Shelby testified that he and Brown rode in defendant’s car to all three restaurants, the victims’ homes, and back to the restaurants for each of the kidnappings and robberies. He also testified that McClam’s car was used as the getaway car in every instance. He further testified that defendant was aware of his participation in the crimes, helped in the planning, and shared in the proceeds. Shelby informed the court that the suggestion to rob the Piccadilly came from McClam, who knew how much money would be on the premises since he was an employee of the restaurant. He also testified that McClam had a contact who helped provide information on the Ryan’s Steakhouse as well.

Brown testified that McClam was present at all three robberies and provided inside information on the Piccadilly they robbed because he was an employee of the restaurant, thus corroborating Shelby’s testimony. Brown further testified that McClam’s car was used in all the robberies, including that of a DeKalb County Piccadilly in May 1996.

The first victim testified that he knew defendant as an employee of his and that he noticed a white Grand Prix following him home from the restaurant on the night of the robbery. He later informed the police that McClain owned a similar car. Another witness also testified he heard McClam boast about committing the armed robberies.

Decided August 19, 2002.

Xavier C. Dicks, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

On cross-examination, the defendant had ample opportunity to discredit the witnesses’ testimony. He offered evidence describing the criminal background of the co-defendants and raised issues concerning the accuracy of the first victim’s identification of the defendant’s car.

McClam argues that his conviction is based upon circumstantial evidence and that none of the evidence places him at the scene of the crimes.

OCGA § 24-4-6 provides that “[t]o warrant a conviction on circumstantial evidence [alone], the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” When an alternative hypothesis is offered, it is for the jury to decide whether that hypothesis is reasonable. Green v. State, 244 Ga. App. 565, 566 (1) (536 SE2d 240) (2000). Two co-defendants testified to McClam’s involvement, a witness heard McClam make an incriminating statement, and a victim positively identified McClam’s car. Even if the evidence is circumstantial, the defendant’s argument that the crimes were committed by his co-defendants only was clearly rejected by the jury. The trial court charged the jury on every applicable theory including the credibility of witnesses and direct and circumstantial evidence. The rejection of an alternative hypothesis in favor of the State’s evidence of guilt by a jury does not give this court the authority to reweigh the evidence and reverse unless the verdict is unsupportable as a matter of law. Green v. State, supra, 244 Ga. App. at 565.

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find McClam guilty beyond a reasonable doubt of armed robbery, kidnapping, and possession of a firearm by a convicted felon. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the enumeration of error is without merit.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A02A1392.
    ROADERICK v. THE STATE.
    (570 SE2d 382)
   Barnes, Judge.

A jury convicted Robert Lee Roaderick of rape, aggravated ássault, and battery. The trial court merged the rape and aggravated assault convictions and sentenced him to serve 20 years without parole under the recidivist statute, OCGA § 17-10-7 (c). Roaderick appeals, contending that the trial court erred in denying his motion for mistrial after a State’s witness testified that he knew Roaderick from jail. For the reasons that follow, we affirm the convictions.

Generally, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter . . .” (OCGA § 24-2-2), and “no evidence of [a criminal defendant’s] general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” OCGA § 24-9-20 (b).

When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. It is up to the trial court to decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.

(Citation and punctuation omitted.) Scruggs v. State, 273 Ga. 752, 753-754 (2) (545 SE2d 888) (2001). Whether to grant a motion for mistrial lies largely within the trial court’s discretion, especially if the motion is triggered by a witness’s remark that was not invited by the court or opposing counsel. Holcomb v. State, 130 Ga. App. 154, 155 (1) (202 SE2d 529) (1973), disapproved on other grounds, Stevens v. State, 242 Ga. 34, 39 (5) (247 SE2d 838) (1978). If the trial court properly instructs the jury and the remark is not so prejudicial that it violates the defendant’s right to a fair trial, we will not reverse the court’s decision. Holcomb v. State, supra, 130 Ga. App. at 155. Additionally, “mere mention that a defendant has been in jail falls short of placing his character at issue. [Cit.]” Taylor v. State, 272 Ga. 559, 561 (2) (c) (532 SE2d 395) (2000).

In this case, the State asked its witness how he knew Roaderick. The witness answered, “Him and my brother was friends when they was growing up and from the jail.” The jurors were excused, and Roaderick moved for a mistrial. The trial court then questioned the witness further about having known Roaderick from jail, and the State requested curative instructions. When the jurors returned to the courtroom, the trial court issued the following instructions:

You know, sometimes I have a hard time hearing what’s going on, and — and I’m closer to the people than you are. The last question that the district attorney asked this witness is how do you know — where do you know Robert from. How many of you heard his complete answer? [Whereupon, the jurors nodded affirmatively.] If you can, raise your right hand. [Whereupon, all 13 jurors indicated to the Court that they heard the witness’s complete answer.] All right. Let me explain what went on. He said that he knew him from growing up, and did all of y’all hear anything else that was said? What he said was, “And from jail.” And I asked him about what he meant. He said several years ago that he was in jail — this witness was in jail on a probation violation, and Robert was there as a runaround. Now then, what happened four years ago or what happened any time ago before this event is not to have any significance in the trial of this case, and I — I really seriously question in my own mind that that kind of statement under these — this context is doing anything that will prejudice the juror’s mind, either against this witness or against the defendant, but I’ve got to ask you a question, and I’ll ask all thirteen of you this. By — by asking you about this, I’m not meaning to emphasize it, but I’ve got to address the issue. Can you decide the facts of this case on the basis of the evidence concerning this case and — and not on what this witness said about having known the defendant as a runaround on the jail — in the jail four or five years ago? Can you put that out of your mind completely? [Whereupon, all 13 jurors raised their hands.] All right. Let the record reflect that all the jurors raised their right hand. Now then, please don’t mention this again during the — the trial that this came out, and the fact that I’m saying something to you now is not meant to emphasize it or cause any attention to it, but the matter came up, and I need — and I will trust what your decision is, and you’ve told me that it will have no factor in this case.

The trial court then called the lawyers to the bench. Roaderick renewed his motion for a mistrial, which the court denied. After the bench conference concluded, the judge again addressed the jury.

All right. All right. We’re going to go with what we’ve got. Sometimes, I have to try cases as a judge and I don’t have the benefit of a jury to try things, and, normally, almost anything that wants to be said is let in when you’re a judge because the judge is supposed to determine what’s admissible and what’s not admissible, and the way I do this, if I hear a case, and a whole lot of stuff comes in and it’s not admissible, I realize from a practical standpoint, there is no way in the world I can get an eraser and erase it off my mind because it’s there, but what I do, when I come down to start making the decision, I put these things that I have determined are not admissible over to the side there. I know they are back there, but I don’t use those in making up my mind as to what decision I have to make, and that’s what I’m asking you to do, and you have said you could do it. Thank you.

Roaderick argues that the trial court erred in failing to order that the inadmissible testimony be stricken and that the jury disregard it in its deliberation. He also characterizes the instructions as “excessively deferential to the jury.”

While the trial court did not use the words “stricken” and “disregard,” it asked the jurors if they could put the testimony out of their minds completely, to which all responded affirmatively. The court then noted that the jurors had indicated that the evidence would not factor into their decision.

In a similar case, when asked how he knew the defendant, a witness responded that he had met him in jail. The Supreme Court of Georgia held that the trial judge’s instruction to the jury to ignore the answer and not consider it was sufficient and the failure to grant a mistrial was not error. Woods v. State, 233 Ga. 495, 498 (2) (212 SE2d 322) (1975).

Roaderick also argues that the trial court’s instructions exacerbated and emphasized the inadmissible evidence. The witness testified outside the presence of the jury, and when the jury returned to the courtroom, the trial court repeated some of the witness’s testimony. While the better practice would be to avoid repeating to a jury a witness’s testimony made outside the jury’s presence, in light of case law holding'that a reference to being in jail does not put the defendant’s character into evidence, we find that the trial court’s curative instructions in this case were not reversible error.

“In light of the immediate curative instruction of the court, the nature of the comment as unresponsive, and the overwhelming evidence of the defendant’s guilt otherwise, we find no abuse of discretion in the denial of the motion for mistrial.” (Citation omitted.) Holt v. State, 248 Ga. App. 334, 336 (2) (546 SE2d 83) (2001).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided August 19, 2002.

Barry V. Smith, for appellant.

Fred R. Simpson, Acting District Attorney, Kay. A. Wetherington, Assistant District Attorney, for appellee.


author: POPE, Presiding Judge.

text:
    A02A0851.
    In the Interest of B. F., a child.
    (570 SE2d 385)
   POPE, Presiding Judge.

The mother of B. F. appeals following the termination of her parental rights. The termination hearing in this case addressed the parental rights of both the father and mother of B. F. In a related appeal, this Court reversed the termination of the father’s parental rights because we found that there was insufficient evidence of some of the factors necessary to support a finding of parental misconduct. In the Interest of B. F., 253 Ga. App. 887 (560 SE2d 738) (2002). Because we find that there is also insufficient evidence to support some of these factors with regard to the mother, we reverse.

In determining whether a termination of parental rights is supported by sufficient evidence, we construe [the] evidence and all reasonable inferences from it in a light most favorable to the trial court’s ruling and ask whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.

(Citation omitted.) In the Interest of J. E. L., 223 Ga. App. 269 (1) (477 SE2d 412) (1996).

Viewed in that light, the evidence relating to the mother at the termination hearing showed that the mother and father separated in 1997, when B. F. was nine years old. Although the mother initially had her daughter with her, B. F. remained with his father. The mother later asked the father to keep the daughter for a period. For a time, the mother visited the children on weekends and holidays. But at some point in late 1997 or early 1998, the mother came and took the daughter while a babysitter was watching her and left B. F. with his father. She stated that she left B. F. behind because he had such a strong bond with his father and that she did not think that the child “would be able to handle it without him.” Her initial plan was to live in the same town with the father and B. F., so that the parents could visit each child, but her husband at the time interfered with that plan because he did not get along with B. F.’s father. The mother subsequently lost touch with B. F. and his father after they moved. The mother testified, however, that she made numerous efforts to try and locate them, including visiting places where she learned they had lived, contacting tree services in the area where her husband may have been employed, and asking the Cobb County police for assistance. She stated that she did not see B. F. from December 1997 until she learned that he was in the custody of the Department of Family & Children Services in March 2000.

B. F. first came into the custody of the Cobb County DFACS in February 1999 when the father was arrested on a charge of driving with a suspended license. At the time the mother’s whereabouts were unknown. B. F. was initially placed in a foster home, but in August 2000 he went to live with his paternal grandparents. A DFACS caseworker testified that B. F. was doing very well after coming to live with his grandparents. He was taken off the Ritalin he began receiving while in foster care and appeared to be focused and excited about school. He was receiving counseling, as well as tutoring for two classes in which he needed extra help.

The mother learned that B. F. was in DFACS custody in March 2000. At the time of the hearing, the mother had visited B. F. once in the seven months that she had been aware of the child’s situation, although she testified that she had made other attempts to arrange visitation. She also stated that she had tried calling him and left messages on the answering machine, but that her calls were never returned.

At the time of the hearing, the mother was employed as a housekeeper and night auditor for the hotel where she lived, and she worked seven days per week. The daughter was in the custody of the Bartow County DFACS. The child was placed into custody after the mother was arrested for a probation violation in November 1999, for which the mother served 26 days in jail. The mother was working with DFACS on a reunification plan with her daughter, but had not met all of the plan’s requirements. Cobb County DFACS never prepared a reunification plan for the mother and B. F.

The mother testified that she was having trouble regaining custody because she could not find a residence that met with DFACS’ approval. Although she stated that the hotel where she lived was clean, safe, and on a school bus route, the evidence showed that the juvenile judge in that case had ordered her not to live in a motel. The mother had applied and been approved for subsidized housing in Whitfield County, but after the Bartow County DFACS caseworker told the housing office that the mother did not have custody of her daughter, the mother was informed that she was not eligible for housing. She also testified that she was looking for another job that would allow her to make child support payments for her daughter, which had recently been required by DFACS.

The mother said that she had trouble meeting some of the other requirements of her case plan because they required transportation between her home in Whitfield County and Bartow County, and that her car had been inoperable. She testified, however, that she had just gotten a new car. The mother said she lived in Whitfield County and away from Bartow County because she was afraid of her husband and did not want him to know where she was. She stated that she planned to institute divorce proceedings against her husband.

The child’s paternal stepgrandmother testified that B. F. was living with her husband and her at the time of the hearing. She stated that the child had lived with them previously in 1995 “when neither parent was available.” At that time, they were called in the middle of the night to pick up B. F. and A. F. by the Cobb County police. They kept them for several months, and during that time the mother never contacted them. The stepgrandmother testified that B. F.’s current stay with them was going well and that she believed that he would benefit by staying longer. Prior to the current stay, the grandparents had not known for four years where their grandchildren were.

At the close of the evidence, B. F.’s guardian ad litem stated that she could not recommend the termination of the mother’s parental rights at that time because she could not say it was in the child’s best interest.

In determining whether the termination of parental rights is warranted under OCGA § 15-11-94, the juvenile court employs a two-prong analysis. “First, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Second, the court determines whether termination is in the best interest of the child.” (Citation omitted.) In the Interest of S. H. P., 243 Ga. App. 720 (534 SE2d 161) (2000).

And a finding of parental misconduct requires clear and convincing evidence of the following four factors:

1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § [15-11-94] (b) (4) (A).

(Citation and punctuation omitted.) In the Interest of J. M. B., 231 Ga. App. 875, 876 (501 SE2d 259) (1998).

In this instance, the mother is effectively bound by the trial court’s prior finding that B. F. was deprived based, in part, upon the fact that the mother’s whereabouts were unknown at the time of the deprivation order. In the Interest of L. S. F., 217 Ga. App. 478, 480 (458 SE2d 370) (1995).

Further, the evidence shows that the deprivation was caused, in part, by the mother’s lack of proper parental care or control as she had no contact with the child for over two years and could not be located at the time of the father’s arrest. In fact, she first learned of her child’s whereabouts at the time she was served with the petition for termination.

But we believe that the trial court’s finding that the deprivation is likely to continue is premature. See generally In the Interest of V. S., 249 Ga. App. 502, 504 (548 SE2d 490) (2001). Only six months had passed from the time the mother was first contacted and the time of the deprivation hearing. Although the mother had not been in touch with B. F. for more than two years, the evidence was uncontra-dicted that she had attempted, within her means and circumstances, to locate the child and reestablish contact. Moreover, she had left B. F. in the care of his father, whom she believed was willing and able to provide for the child. And although she had only visited the child once in the six months since learning of his whereabouts, she explained that her car had not been operational for some time and she lived some distance from her children because she was afraid of her husband, who apparently lived in the area. Her attempts to talk to the child by phone had gone unanswered.

No case plan was ever devised to reunite the mother with B. F. And although she had failed to meet all of the requirements of the case plan for her daughter, the evidence showed that she had attempted to do so. Her attempts to establish a suitable home for her child were thwarted, in part, by the intervention of Bartow County DFACS when the caseworker contacted the Whitfield County Housing Office to inform them that the mother did not have custody of her daughter. As the guardian ad litem described it, the mother was caught in a “Catch-22” situation with regard to the housing. She needed to secure public housing in order to get custody of the children, but she could not get housing because she did not already have custody. Moreover, the mother was hampered, in part, in meeting other goals of the case plan by her lack of reliable transportation. In addition, the guardian believed that the child was bonded with his mother, despite her past actions.

Under these circumstances, although there is evidence of the mother’s neglect of B. F. in the past, we cannot say that there is clear and convincing evidence that this neglect is likely to continue. See In the Interest of A. A., 252 Ga. App. 167, 172 (2) (c) (555 SE2d 827) (2001). See also In the Interest of V. S., 249 Ga. App. at 506 (1) (b).

And as we found in the father’s case, “there is absolutely no evidence in the record that any continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. There was no testimony that any potential or actual harm would result to B. F. from a continued relationship with his [mother] or that B. F. was suffering from being in foster care or that he would suffer if he did not find permanent placement.” In the Interest of B. F., 253 Ga. App. at 891-892.

Decided August 20, 2002.

Culp & Smith, Robin M. Smith, for appellant.

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

Accordingly, we hold that the juvenile court’s termination of the mother’s parental rights must be reversed. See In the Interest of D. F., 251 Ga. App. 859 (555 SE2d 225) (2001); In the Interest of J. M., 251 Ga. App. 380 (554 SE2d 533) (2001).

Judgment reversed.

Ruffin, J., concurs. Barnes, J., concurs in the judgment only.


text:
    A02A0930.
    GOVERT v. THE STATE.
    (570 SE2d 393)
   POPE, Presiding Judge.

Monika T. Govert appeals following the denial of her plea in bar by the Fayette County State Court. She asserted in support of her plea that under OCGA § 40-13-29 the Peachtree City Municipal Court had exclusive jurisdiction over state misdemeanor traffic violations occurring inside the city’s corporate limits unless the defendant requests a jury trial. Because we find that the statute does not vest exclusive jurisdiction over such violations in the municipal court, we affirm.

On March 7, 2001, Govert was arrested and charged with driving under the influence under OCGA § 40-6-391 and failure to maintain lane. The uniform traffic citation issued by a Peachtree City police officer indicated that Govert was being charged with violating state law. The city solicitor later requested that the case be bound over to the State Court of Fayette County for trial, and on July 20, 2001, the state court issued an accusation against Govert on the same charges. Govert filed an objection in the Municipal Court of Peachtree City to the transfer of her case and a plea in bar in state court asserting that that court lacked jurisdiction under OCGA § 40-13-29. In each of these pleadings, she noted that she had not demanded a jury trial, which she contends indicated her waiver of that right. The state court denied her plea, but certified the issue for immediate appellate review. This appeal follows the grant of Govert’s interlocutory application.

OCGA § 40-13-29 provides:

In all counties except those having city, county, or state courts, the judge of the probate court shall have exclusive jurisdiction of all traffic misdemeanor cases originating in the county outside of municipal corporations, and the judge of the municipal court in each municipal corporation shall have exclusive jurisdiction of traffic misdemeanor cases originating inside the corporate limits of municipalities.

Govert argues that we should interpret this statute as granting municipal courts exclusive jurisdiction of all misdemeanor traffic cases occurring within the limits of the municipality, where a defendant waives his right to a jury trial.

As an initial matter, we note that the statute clearly states that it does not apply in counties having state courts, and thus has no application in Fayette County, which has a state court.

Moreover, this issue has already been decided adversely to Govert. In Smith v. State, 62 Ga. App. 733 (2) (9 SE2d 714) (1940), this court held that the prior version of this statute “did not take [away] from the superior courts jurisdiction to try misdemeanor violations of traffic laws, and vest such jurisdiction in . . . municipal courts . . . exclusively as against the superior courts.” Thus, the court held that the jurisdiction was concurrent. Id. at 733 (2). See also Allen v. State, 85 Ga. App. 887 (1), (2) (70 SE2d 543) (1952). And in Diamond v. State, 151 Ga. App. 690, 691 (1) (261 SE2d 434) (1979), we held that the State Court of Chatham County had jurisdiction to try a misdemeanor traffic offense occurring within the city limits of Savannah, even where the offense was also a violation of a city ordinance.

In addition, the attorney general, in interpreting this statute, held that the use of the term “exclusive” was not intended to divest other courts of jurisdiction, but rather was intended to define the relative jurisdictions of the probate and the municipal courts. 1989 Op. Atty. Gen. No. U89-30. See also 1963 Op. Atty. Gen. at 300.

Decided August 20, 2002.

Ballard & Ballard, Scott L. Ballard, for appellant.

Steven L. Harris, Solicitor-General, for appellee.

Although the wording of the statute has since been amended, we find nothing in the amended language to alter the basic principle that the superior, state, and municipal courts share concurrent jurisdiction over the offenses in this case. Accordingly, we affirm the state court’s denial of Govert’s plea.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

       See Nicholson v. State, 261 Ga. 197, 200 (6) (b) (403 SE2d 42) (1991); Walton v. State, 261 Ga. 392, 393 (1) (405 SE2d 29) (1991) (absent a timely demand for jury trial of misdemeanor traffic offense in probate court, the right to a jury trial is waived).

       The prior version read:
      The ordinaries shall have exclusive jurisdiction of all cases originating in the county, outside of municipal corporations, and the judge of recorder’s court in each municipal corporation shall have exclusive jurisdiction of cases originating inside the corporate limits of municipalities. This section shall not apply to those counties having City Courts or County Courts.
      Ga. Code Ann. § 92A-511 (Ga. L. 1937-38, Ex. Sess., p. 562, § 11).