author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A94A0146.
    GWINNETT I LIMITED PARTNERSHIP v. GWINNETT COUNTY et al.
    (447 SE2d 679)
   Andrews, Judge.

In 1989, the Gwinnett County Board of Tax Assessors placed a valuation of $6,001,440 and a tax assessment of $2,400,570 on an apartment complex. The owner at the time of the assessment did not appeal the valuation or assessment to the Board of Equalization within the 30-day appeal period. In January 1990, Gwinnett I Limited purchased the property at a foreclosure sale for $3,000,000. While contending that the assessment was illegal and erroneous because of improper valuation, lack of uniformity, and lack of equalization, Gwinnett I paid the Gwinnett County Tax Commissioner $98,416 under protest in May 1990. A few days later, Gwinnett I followed the procedure set forth in OCGA § 48-5-380 and requested a refund of $42,320 from the Tax Commissioner. After the request was denied in August 1991, Gwinnett I filed this action a year later in Gwinnett County Superior Court, also under OCGA § 48-5-380, seeking a refund. Gwinnett County moved for summary judgment, claiming Gwinnett I was barred from maintaining an action for a tax refund under OCGA § 48-5-380 because Gwinnett I did not first appeal to the Gwinnett County Board of Equalization as required by OCGA § 48-5-311. Gwinnett I appeals from the trial court’s order granting summary judgment in favor of Gwinnett County.

Gwinnett I, conceding that no material issues of fact exist, contends summary judgment was not authorized because OCGA § 48-5-380 authorizes it to seek a refund of overpaid taxes which were erroneously and illegally assessed. Gwinnett I argues that it overpaid taxes because the property was not assessed at fair market value and the valuation was not fairly and justly equalized.

OCGA § 48-5-380 (a) provides that taxpayers may obtain a refund of taxes paid to a county or municipality for “any and all taxes and license fees which are determined to have been erroneously or illegally assessed and collected from the taxpayers ... or which are determined to have been voluntarily or involuntarily overpaid by the taxpayers.” The claim is to be filed with “the governing authority,” in this case the county commissioners, within three years after the date of payment. OCGA § 48-5-380 (b). If the governing authority denies the claim, the taxpayer may bring an action for a refund in superior court. OCGA § 48-5-380; Marconi Avionics v. DeKalb County, 165 Ga. App. 628, 629 (302 SE2d 384) (1983). On the other hand, OCGA § 48-5-311 (e) provides a method by which a taxpayer may appeal from an assessment, within 30 days of the assessment notice, to the Board of Equalization as to matters of taxability, uniformity, and value. OCGA § 48-5-311 (f). The taxpayer may appeal the decision of the Board of Equalization by bringing an action in superior court. OCGA § 48-5-311 (f) (1).

We have previously construed OCGA § 48-5-380 in conjunction with OCGA § 48-5-311 in Marconi Avionics, supra. As we noted in Marconi Avionics, “[t]he refund statute does not state that the taxpayer must first have complied with OCGA § 48-5-311 (e) [cit.] before it is entitled to a refund of improperly paid taxes. Indeed, the wording of OCGA § 48-5-380 (a) [cit.] giving the taxpayer the right to a refund of ‘any and all taxes . . . which are determined to have been . . . voluntarily or involuntarily overpaid,’ belies any attempt to place such a severe, artificial, and non-statutory restriction on that right.” Id. at 629. Interpreting the refund statute according to its literal and logical meaning, we concluded that “it applies to all property ‘erroneously or illegally assessed’ and taxes ‘voluntarily or involuntarily overpaid,’ for whatever reason,” and that “a taxpayer need not comply with the appeal procedure provided in OCGA § 48-5-311 (e) [cit.] prior to proceeding under OCGA § 48-5-380. [Cit.]” Id. at 630. “There is nothing in [OCGA § 48-5-380] or in [OCGA § 48-5-311] that precludes consideration of [matters concerning valuation, uniformity or equalization of assessments] if that forms the basis of the allegation that the property was erroneously or illegally assessed or that there was an overpayment.” See id. at 631.

The dissent attempts to distinguish Marconi Avionics on the basis that it dealt with a challenge to taxability instead of the excessive valuation, uniformity and equalization claims asserted by Gwinnett I, and narrowly construes OCGA § 48-5-380 to mean that refunds may be sought as to matters concerning “factual error or illegality” but not as to matters concerning valuation, uniformity and equalization of assessments, which the dissent characterizes as matters of opinion subject to appeal under OCGA § 48-5-311. Given the broad and plain language of OCGA § 48-5-380 authorizing refunds for taxes “erroneously or illegally assessed . . . or . . . voluntarily or involuntarily overpaid by the taxpayers,” there is no basis for the narrow statutory construction advocated by the dissent and no basis for distinguishing Marconi Avionics. Moreover, since OCGA § 48-5-311 does not differentiate between appeals based on taxability and those based upon value or uniformity, there is no basis for making such a distinction in this case.

Additionally, the broad statutory construction we adopted in Marconi Avionics is consistent with the common-law remedy codified by OCGA § 48-5-380. Prior to the enactment of OCGA § 48-5-380, the right to seek a refund of ad valorem taxes existed at common law, not only for illegally assessed taxes, but also for excessive valuation where the taxpayer conceded some amount of tax was due, protested the amount assessed, and paid the taxes under the trial court’s protective order. Blackmon v. Ewing, 231 Ga. 239 (201 SE2d 138) (1973). “[T]he right to sue for refund has always been an available remedy at common law, and the only effect of having such right expressly recognized by statute has been to remove the defense of voluntary payment.” Hawes v. Smith, 120 Ga. App. 158 (169 SE2d 823) (1969); Town of Lyerly v. Short, 234 Ga. 877, 879 (218 SE2d 588) (1975). Even if it could be argued that OCGA § 48-5-380 is capable of a different construction, the statute was properly construed in Marconi Avionics in a manner consistent with the common law. See Intl. Indent. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (322 SE2d 78) (1984).

Finally, construing OCGA § 48-5-380 to recognize the taxpayer’s right to seek a refund in the present case is consistent with similar refund remedies applicable to State taxes under OCGA § 48-2-35 (former Code Sections 92-8436 and 91A-245). See Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 (210 SE2d 377) (1974); Gainesville-Hall County Economic Opportunity Organization v. Blackmon, 233 Ga. 507 (212 SE2d 341) (1975).

Gwinnett I had a right to seek a refund under OCGA § 48-5-380 and the trial court erred in granting summary judgment in favor of Gwinnett County. The case must be remanded for consideration of the remaining issue of whether Gwinnett I is entitled to a refund.

Judgment reversed and case remanded with direction.

Pope, C. J., Birdsong, P. J., Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., and Beasley, P. J., dissent.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent because the trial court correctly concluded that the defending county, county commissioners, and members of the county board of tax assessors were entitled to summary judgment in this action for a 1989 ad valorem real property tax refund.

As the majority notes, both OCGA §§ 48-5-380 and 48-5-311 come into play in this case. Additionally, the legislative scheme of tax appeals can be seen in OCGA § 48-5-306 (b) which requires that the notice of changes in property tax assessment must state “If you do not file an appeal by this date, your right to file an appeal will be lost.” This appeal may encompass “matters of taxability, uniformity of assessment, and value, and, for residents, as to denials of homestead exemptions.” OCGA § 48-5-311 (e) (1). We are confined to an application of the statutory scheme which the legislature has adopted. “[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.” Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467 (62 SE2d 209) (1950).

These sections of the law must be construed in pari materia, in connection and in harmony with each other. Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (d) (392 SE2d 881) (1990); Allison v. Domain, 158 Ga. App. 542, 544 (281 SE2d 299) (1981). The assessment for a particular year is a matter of opinion; it is not a matter of factual error or illegality so as to be subject to a years-later challenge under OCGA § 48-5-380 with respect to valuation, uniformity, and/or equalization. Taxability (whether the property is subject to taxation or not), which is subject to an erroneous determination or mistake of fact, is not a question of value and thus a mistake in this regard is subject to remedy under OCGA § 48-5-380 in addition to OCGA § 48-5-311. See Black’s Law Dictionary with respect to the definitions of “error,” “erroneous assessment,” and “erroneous or illegal tax.”

Plaintiff was not the property owner in 1988 when the assessment was made, or in 1989 when it was the basis for the 1989 tax. The then-property owner failed to challenge the assessment within the time provided, despite notice of its opportunity. That fixed the assessment for that year of 1989 as the basis for the tax, insofar as valuation, uniformity, and equalization were concerned. Plaintiff, the purchaser in 1990, actually paid the tax resulting from the assessment, delinquent and with penalty because its predecessor-in-title, the 1989 owner, had not paid it. By doing so, it did not gain a right, through the refund statute, to contest the assessment amount for the 1989 tax which had been lost by the predecessor’s failure to utilize OCGA § 48-5-311.

The legislature has provided an expedient procedure for the challenge of valuation, uniformity, and equalization of assessments in OCGA §§ 48-5-311 (e) and (f) and 48-5-306 because of the annually recurring nature of the ad valorem tax. Plaintiff cannot avoid the finality of the time which has been clearly provided by the legislature for this purpose, by invoking OCGA § 48-5-380, which is provided for other purposes.

Marconi Avionics v. DeKalb County, 165 Ga. App. 628 (302 SE2d 384) (1983), is inapposite. The question was whether the trial court properly granted a dismissal, which the appellate court ultimately viewed as a summary judgment. The judgment was reversed because it was held that a proper action under OCGA § 48-5-380 does not require, as a predicate, the exhaustion of the remedy provided under OCGA § 48-5-311 (e). Obviously, as recognized by the court in that case, to so require “would virtually eliminate refunds when the mistake of overpayment is discovered only after the taxes are paid . . . [and thus] render most tax payments unrecoverable.” The challenge was to taxability, in that the taxpayer claimed the property was exempt. Here, on the other hand, the claim is that the assessment was not based on the true market value and was not uniform and equalized with similarly situated properties in 1989. It is not a matter of failing to first follow the procedure in OCGA § 48-5-311 (e) before proceeding with an action under OCGA § 48-5-380, which Avionics held was unnecessary in a proper OCGA § 48-5-380 refund case. Rather, it is a matter of the exclusive remedy for challenging valuation, uniformity, and equalization of the 1989 assessment having been foreclosed by the passage of time.

Decided July 15, 1994

Reconsideration denied July 29, 1994

Alston & Bird, T. Michael Tennant, Lori P. Hughes, Timothy J. Peaden, for appellant.

Frederick D. Burkey, Caryl B. Sumner, M. Van Stephens II, for appellees.

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


source: Caselaw Access Project

author: Johnson, Judge. Pope, Chief Judge, Beasley, Presiding Judge,

license: Public Domain

text:
    A94A0239.
    GORDON COUNTY FARM et al. v. MALONEY.
    (447 SE2d 623)
   Johnson, Judge.

Connie Maloney injured her left shoulder while working for Gordon County Farm and received workers’ compensation benefits. After missing more than a year of employment, Maloney returned to Gordon for light duty work. Gordon subsequently terminated Malo-ney’s employment for a cause unrelated to her injury when she left work early without permission. Asserting that she is unable to find other suitable employment due to her injury, Maloney filed a claim seeking recommencement of disability benefits based on a change in condition. The administrative law judge awarded disability benefits to Maloney and the State Board of Workers’ Compensation adopted the ALJ’s award. Gordon and its insurer, Travelers Insurance Company, appealed to the superior court. The court failed to enter a timely order, resulting in the board’s ruling being affirmed by operation of law. OCGA § 34-9-105 (b). We granted the application of Gordon and Travelers for discretionary review.

1. Gordon and Travelers assert that there is no evidence to support the award of the ALJ and the board. “The controlling principle in appeals such as this is that disabled employees are entitled to resumption of benefits, even if terminated from subsequent employment because of their own misconduct, if their disabilities prevent them from finding further employment. The burden is on the employees, however, to prove that their inability to find full-time employment was proximately caused by their disabilities.” (Citations and punctuation omitted.) Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991). The only evidence offered by Malo-ney to prove that her inability to find employment is proximately caused by her shoulder injury is her own testimony that the manager of a Burger King restaurant where she applied for a job told her that the restaurant could not hire her because she is “on Workmen’s Comp.” The ALJ ruled that Maloney’s testimony is admissible both as original evidence to explain conduct and under the res gestae exception to the hearsay rule. The ALJ’s ruling, adopted by the board, is incorrect.

OCGA § 24-3-2 provides, “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” The rule “set forth in § 24-3-2 applies to communications whenever the fact that such communication was made, and not its truth or falsity, is the point in issue. [Cit.]” (Emphasis in original.) Ross v. State, 179 Ga. App. 283 (346 SE2d 87) (1986); see also OCGA § 24-3-1. Here, the ALJ allowed Maloney to testify about the restaurant manager’s statement not merely to prove that the statement was made, but to establish the truth of the statement; i.e., that the restaurant refused to hire Maloney because of her compensable shoulder injury. Because Malo-ney’s testimony was admitted to prove the truth of the manager’s statement, it is inadmissible hearsay that does not qualify as original evidence under OCGA § 24-3-2.

The restaurant manager’s statement also is not admissible as part of the res gestae. “Our Code includes a ‘res gestae’ exception to the hearsay rule. OCGA § 24-3-3. [The] McCormick [treatise on evidence] describes res gestae to include: (1) statements of present sense impressions; (2) excited utterances; (3) statements of present bodily condition; and (4) statements of present mental states and emotions.” (Citation omitted.) Brantley v. State, 262 Ga. 786, 790, n. 4 (427 SE2d 758) (1993); Fountain v. State, 136 Ga. App. 229, 230, n. 3 (220 SE2d 705) (1975). The manager’s purported refusal to hire Maloney because she is receiving workers’ compensation is not an excited utterance or a statement of sensory impression, bodily condition, mental state or emotion. The hearsay statement testified to by Maloney, unlike the above four categories, is not sufficiently reliable to fall under the res gestae exception. The ALJ erred in admitting Maloney’s unreliable hearsay testimony.

The dissenters argue that there is evidence in the record other than this improper hearsay testimony which supports the ALJ’s finding. They cite, as additional evidence, Maloney’s testimony that an assistant manager from Burger King called her on the telephone and offered her a job as biscuit maker, but then withdrew the offer when she revealed her physical limitations. Contrary to the claim of the dissents, this testimony is not competent evidence to support the ALJ’s finding, but is itself inadmissible hearsay. OCGA § 24-3-1. The dissents attempt to avoid the inadmissibility of this hearsay testimony by characterizing it as evidence of the timing of the job offer and its subsequent withdrawal. This characterization is incorrect. The only evidence of this alleged telephone call from the manager is Maloney’s own testimony. This testimony was plainly offered at the administrative hearing, and is in fact relied on by the dissents, not merely as evidence of the timing of the purported telephone call, but as evidence of the truth of the alleged statements made by the manager during that call; i.e., that the manager actually offered the job to Maloney and then withdrew the offer. Since Maloney testified to prove the substance of statements attributed to the manager, her testimony is inadmissible hearsay which cannot support the ALJ’s award. Compare Fletcher v. Ford, 189 Ga. App. 665, 667. (1) (377 SE2d 206) (1988).

As in Aden’s Minit Market, supra, “there is little question that [Maloney] remains disabled to some degree because of her prior com-pensable injury. Also, [Maloney’s] testimony established that she sought employment with several possible employers and was rejected. This proof, however, is not sufficient to meet her burden as the record is silent on the reasons why she was not hired by any of these other employers.” The mere fact that Maloney was not hired by these other employers, without more, does not establish proximate cause between her disability and her failure to be hired. There are many possible reasons why these other employers did not hire Maloney; for example, they may have thought she was not qualified, they may not have had any openings or they may have had more qualified applicants. It is impossible, based on the record before us, to determine why these employers did not hire Maloney. Because there is no evidence in the record, other than the improper hearsay testimony, supporting the finding of the ALJ and the board that Maloney met her burden of proving that she has been unable to find further employment because of her injury, the superior court’s affirmance of the award of benefits must be reversed. State v. Bardge, 211 Ga. App. 307, 309-310 (439 SE2d 1) (1993).

2. Based on our holding in Division 1, we need not address the appellants’ remaining arguments.

Judgment reversed.

Birdsong, P. J., Andrews, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., McMurray, P. J., Beasley, P. J., and Smith, J., dissent.

Pope, Chief Judge,

dissenting.

Although I agree that the claimant’s testimony that the assistant manager of Burger King told her she could not be hired because she was “on Workmen’s Comp.” was inadmissible hearsay, I do not agree that this inadmissible hearsay was the only evidence offered by the claimant to show her injury was the proximate cause of her inability to find employment. The claimant testified that Burger King offered her a job as biscuit maker but then withdrew the offer when she told its representative (the assistant manager who called with the offer) about her physical limitations. While the claimant’s testimony regarding the assistant manager’s statement of why she withdrew the offer is inadmissible hearsay, the fact and timing of the offer and its subsequent withdrawal (i.e., the assistant manager called with the offer, the claimant informed the assistant manager of her physical limitations, and the assistant manager then withdrew the offer) is not.

The majority contends that even this testimony regarding the fact of the offer is hearsay. However, the fact that someone said or did something is not hearsay simply because some conversation was involved; testimony regarding the statement of an out-of-court declar-ant is hearsay only to the extent it is used to prove the truth of the substance of the statement. See Fugitt v. State, 256 Ga. 292 (1c) (348 SE2d 451) (1986); Miness v. Miness, 254 Ga. 658 (1) (333 SE2d 574) (1985). “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1. The value of the claimant’s testimony regarding the occurrence of the offer and withdrawal, unlike that of her testimony about the manager’s reasons for the withdrawal, depends on her own credibility rather than that of the absent manager. Accordingly, it is not hearsay and is admissible.

The claimant’s evidence of the timing of the withdrawal of the offer is more than the claimant was able to present in Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991), and is sufficient to support the inference that the claimant’s inability to find employment is proximately caused by her injury in this case. Indeed, it is difficult to imagine a scenario in which circumstantial evidence of a causal relationship would be stronger. Thus, if we hold that the circumstances of the offer and its withdrawal cannot be considered because they occurred in the context of a conversation, we are effectively saying that causation can be proved only by direct evidence from a potential employer — which is, of course, highly unlikely.

Normally we affirm the Board’s award if there is any evidence to support it. See Chevrolet &c., GMC v. Millar, 182 Ga. App. 889 (2) (357 SE2d 598) (1987); OCGA § 34-9-105 (c). In this case, however, the ALJ’s award (which was adopted by the Board) makes it clear that his conclusion that plaintiff met her burden of showing proximate cause hinged on the inadmissible hearsay testimony. When the ALJ’s award contains a significant misstatement of fact, we have held that the case should be remanded back to the Board for further consideration “even if otherwise supported by evidence where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.” (Citations and punctuation omitted; emphasis supplied.) Fidelity &c. Ins. Co. v. CIGNA/Pacific &c. Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702) (1986); see also Dept. of Pub. Safety v. Boatright, 188 Ga. App. 612 (2) (373 SE2d 770) (1988). The reason for remand in such cases is that the award should be based on proper evidence, meaning evidence which is both accurate and admissible. This situation, in which the record shows that inadmissible hearsay evidence influenced the ALJ’s finding that the claimant met her burden of proof, is analogous to situations involving misstatements of fact by the ALJ. It is therefore my opinion that we should reverse with direction that the case be remanded for the Board to determine whether the claimant showed her inability to find employment was proximately caused by her injury even if the inadmissible hearsay is not considered. See Brown v. Ga. Power Co., 181 Ga. App. 500 (2) (352 SE2d 818) (1987).

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

Beasley, Presiding Judge,

dissenting.

The judgment should be affirmed under the rule that if there is any evidence to support the agency’s decision, it shall be affirmed. OCGA § 50-13-19 (h) (5); Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575 (1) (442 SE2d 860) (1994). The superior court, sitting in its appellate capacity, would have had to honor that rule had it reviewed the case, and so must we. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579-581 (5) (396 SE2d 562) (1990).

Even if the prospective employer’s statement is not admissible under OCGA § 24-3-2 to explain the reason for its action, a ruling I am not prepared to agree with, there is other evidence supporting the claim. The claimant testified that the restaurant (Burger King) offered her a job as biscuit maker but withdrew the offer when she told its representative (the assistant manager who called with the offer) about her physical limitations. She even had experience in restaurant work. Claimant also went through the Department of Labor in Rome and made application to other prospective employers, namely retailers Lowe’s, Po’ Folks, Wal-Mart, and K-Mart. On each application she had to state that she was receiving workers’ compensation benefits and had job limitations due to injury. Not one called her back. She testified that her physical limitations prevented regular duty employment, and her medical evidence showed her restrictions.

Thus there is evidence, including reasonable inferences, to carry the claimant’s burden to prove by a preponderance that her inability to find employment was proximately caused by her disability. Hartford Accident &c, Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978); Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991). The ALJ found, which finding the appellate division of the board adopted, that Burger King’s decision not to hire claimant “was based on the fact that she had physical restrictions resulting from the compensable injury as well as the fact that she had brought a workers’ compensation claim.” Excluding the prospective employer’s statement, claimant still showed by all her evidence that the injury caused an economic change in condition. That is what she must do, to prevail. Ga. Power Co. v. Brown, 169 Ga. App. 45, 49 (2) (311 SE2d 236) (1983). The law, and in particular Aden’s Minit Market, supra, does not require her to obtain the testimony of the employers who rejected her application, to the effect that the reason was her injury-caused limitations. To impose such would introduce an extremely difficult, if not impossible, requirement and could subject the employer to sanction under the Americans with Disabilities Act of 1990. 42 USC § 12101 et seq.

Decided June 21, 1994

Reconsideration denied July 29, 1994

Baker, Russell & Pacious, Edwin G. Russell, Jr., for appellants.

Mundy & Gammage, E. Lamar Gammage, Jr., for appellee. Kissiah & Associates, Richard C. Kissiah, Melinda K. Wells, Da vidson & Strain, John M. Strain, amici curiae.

It is unnecessary to remand the case to the superior court to remand to the board to reconsider based on all the evidence except the prospective employer’s statement. There was other evidence, including the claimant’s testimony concerning what transpired with respect to that Burger King application, permitting the inference that the reason for withdrawal of the offer was her physical limitations. Thus the manager’s statement was not of such significance that the factfinder must begin anew. See Chevrolet &c., GMC v. Millar, 182 Ga. App. 889 (1) (357 SE2d 598) (1987).

This differs from the situation in Brown v. Ga. Power Co., 181 Ga. App. 500 (352 SE2d 818) (1987), where the case was remanded because the board failed to apply the proper test with respect to determining causal connection. The board’s function was performed with the wrong measuring stick. Here the board merely took into account evidence which, although the majority deems it inadmissible, was evidence of a fact otherwise proved.

I am authorized to state that Judge Smith joins in this dissent.

       See White v. East Lake Land Co., 96 Ga. 415, 420 (4) (1895); Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 319 (2) (160 SE2d 414) (1968); Edgeworth v. Edgeworth, 239 Ga. 811, 812 (239 SE2d 16) (1977); Stinespring v. Fields, 139 Ga. App. 715, 719 (3) (229 SE2d 495) (1976).


author: Beasley, Presiding Judge.

text:
    A94A0258.
    REAUGH v. INNER HARBOUR HOSPITAL, LTD. et al.
    (447 SE2d 617)
   Beasley, Presiding Judge.

From January 14, 1985, until November 21, 1986, plaintiff Reaugh participated in a treatment program operated by defendant Inner Harbour Hospital, Ltd., f/k/a Anneewakee, Inc. We refer to defendant as Anneewakee, since that was its name at the time of the events giving rise to this suit. On January 30, 1988, she reached the age of majority. On December 3, 1991, she filed the present complaint against Anneewakee and others. Anneewakee was a Georgia corporation which provided medical, psychiatric, and educational counseling treatment to student admittees through a vocational program in a wilderness setting.

Plaintiff’s parents and Anneewakee entered into an agreement pursuant to which plaintiff was admitted as a participant in the An-neewakee program. The agreement contained a release under which her parents, and purportedly plaintiff as “participant,” released An-neewakee from any and all claims, causes of actions, or damages that the participant and her parents jointly or individually might have or acquire against Anneewakee arising out of any injury, damage, or loss sustained by them. The agreement also contained a covenant not to sue employing similar language. In addition, the agreement contained a merger clause.

In the complaint, as amended, plaintiff alleged that defendants violated Georgia laws by engaging in, and conspiring to conceal, one or more of the following acts: assault, battery, false imprisonment, mental cruelty, charging plaintiff’s family for services not actually rendered or fully performed as claimed in the billings for medical care and psychiatric counseling, interrupting communications in order to control information about physical abuse and mental cruelty, theft, misrepresentation, and fraud and deceit.

She seeks a recovery against defendants for damages resulting from their wrongful acts. In Counts 1 through 5 of her complaint, she has asserted claims against defendants for violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”), breach of third-party beneficiary contract, breach of written contract, fraud, and breach of fiduciary duty.

Plaintiff charges defendants with engaging in a pattern of racketeering activity involved, but not limited to, mail fraud and violations of Georgia law elsewhere alleged in the complaint.

Plaintiff testified that Anneewakee did not provide her with psychological counseling, dental care, and educational assistance for which her parents were billed. She also testified that she was subjected to dehumanizing acts and forced to engage in extremely strenuous labor for which she was not compensated. She submitted evidence that Anneewakee employees were convicted of committing sexual offenses against participants in the program. She also submitted affidavits of other participants, who testified that they had been sexually abused at Anneewakee, that they spent most of their time doing unpaid labor for Anneewakee’s benefit, and that Anneewakee failed to provide classroom instruction and therapy sessions for which it billed.

The trial court granted Anneewakee’s motion for summary judgment. The court ruled that plaintiff’s breach of third-party beneficiary and written contract claims are barred by the release and because her parents, not she, paid for the services which were supposed to have been rendered under the contract. Although plaintiff argues that the release violates public policy, the court ruled that plaintiff had put forth no public policy that it violates. The court concluded that her claim of fraudulent inducement is barred by the merger clause, because she elected to affirm the contract and sue for damages rather than rescind it. The court ruled that any personal injury claims are barred by the two-year statute of limitation in OCGA § 9-3-33. The court disposed of plaintiff’s RICO claim by concluding that it is “without merit and subject to summary judgment.”

1. Plaintiff contends that her claims are not governed by OCGA § 9-3-33, which requires actions for “injuries to the person” to be brought within two years after the right of action accrues.

OCGA § 9-3-33 is a general statute of limitation. Daniel v. American Optical Corp., 251 Ga. 166, 168 (1) (304 SE2d 383) (1983). As such, it is inapplicable to plaintiff’s RICO, fraud, and ex contractu counts. As argued by plaintiff, these counts are governed by statutes of limitation specifically applicable to each. OCGA § 16-14-8 provides a five-year statute of limitation to criminal and civil RICO actions. OCGA § 9-3-24 sets a six-year statute of limitation for all actions upon simple contracts in writing. OCGA § 9-3-31 imposes a four-year statute of limitation on actions for fraud. See Frost v. Arnaud, 144 Ga. 26, 29 (1) (85 SE 1028) (1915). There is no statute of limitation otherwise applicable to plaintiff’s count alleging breach of fiduciary duties. In this count, she seeks recovery for Anneewakee’s failure to provide services for which her parents were billed, and for the crimes and offenses committed against her. To the extent that this count seeks recovery for the latter, it is barred by OCGA § 9-3-33. The scope of this statute is determined by the nature of the injury sustained rather than by the legal theory underlying the claim for relief. Daniel, supra.

2. Plaintiff argues that the release and covenant not to sue are unenforceable, void, and against public policy.

We agree that where, as here, parents have entrusted the care, custody, and control of a child to a third party who is contractually obligated to provide medical and educational services to the child, it would be contrary to public policy to allow that party to exculpate itself from liability for harm to the child resulting from that party’s failure to provide such services. “Where the performance of a contractual condition would be contrary to the health, safety or welfare of others; it may be considered unenforceable. [Cits.]” Tidwell Homes v. Shedd Leasing Co., 191 Ga. App. 892, 895 (3) (383 SE2d 334) (1989); see also Porubiansky v. Emory Univ., 156 Ga. App. 602 (275 SE2d 163) (1980), aff’d Emory Univ. v. Porubiansky, 248 Ga. 391 (282 SE2d 903) (1981).

3. Plaintiff argues that as an intended third-party beneficiary of the contract between her parents and Anneewakee, she is entitled under OCGA § 9-2-20 (b) to recover the reasonable value of the services it failed to provide. In reliance upon Rose v. Hamilton Med. Center, 184 Ga. App. 182 (361 SE2d 1) (1987), Anneewakee argues that plaintiff is not entitled to such a recovery, because the right to recover the monies paid by plaintiff’s parents belongs to them and not to her. Anneewakee’s reliance upon Rose is misplaced because Rose involved a tort claim. This case involves a claim for breach of contract by an intended third-party beneficiary. OCGA § 9-2-20 (b) states that “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” This is an exception to the general rule that an action on a contract is brought by a party to it. See Somers v. Avant, 244 Ga. 460, 463 (261 SE2d 334) (1979). The remedies available to the beneficiary are exactly the same as would be available to him if he were a contractual promisee of the performance in question. 4 Corbin on Contracts, p. 230, § 810 (1951). We therefore hold that the trial court erred in granting Anneewakee’s motion for summary judgment on this claim.

4. Plaintiff insists that she may pursue her claim for fraud in the inducement.

In moving for summary judgment, Anneewakee argued that plaintiff could not avoid operation of the release and covenant not to sue by claiming fraudulent inducement, because she had not sought to rescind the agreement but rather had affirmed it by suing for breach, and it contained a valid merger clause. See Flair Fashions v. SW CR Eisenhower Drive, 207 Ga. App. 78, 79 (427 SE2d 56) (1993).

“A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.” OCGA § 13-4-60. Plaintiff asserts that she has received nothing of value to be tendered by her so as to affect a rescission, which Anneewakee contests.

Anneewakee’s reliance upon the merger clause is misplaced. That clause states, “There are no promises, terms, conditions or obligations other than those contained herein and therein. With respect to the subject matter hereof, these agreements super [s]ede all previous communications, representations or agreements whether verbal or written, between the parties hereto.” Plaintiff’s fraud claim is predicated on Anneewakee’s false representations that services called for by the agreement would be afforded to plaintiff, as well as Anneewakee’s charging plaintiff’s account daily psychiatric costs not given. The merger clause does not bar such claims.

We thus conclude that the court erred in granting summary judgment to Anneewakee on plaintiff’s fraud claim.

5. Finally, plaintiff contends that the court erred in granting An-neewakee’s motion for summary judgment on her RICO claim.

The trial court in its order did not explain the basis for this ruling on this claim. We look to the arguments advanced by Anneewakee in support of it.

(a) Anneewakee’s primary argument is that under both the Georgia RICO Act (OCGA § 16-14-1 et seq.) and the federal RICO Act (18 USC § 1961 et seq.), a RICO defendant cannot also be the RICO enterprise. See Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 679 (3) (426 SE2d 165) (1992) (in which this argument was raised but was not resolved). Resolution requires a consideration of the Georgia RICO Act’s definition of enterprise, the RICO enterprise in this case, prohibited activities under the state and federal RICO Acts, and the racketeering activity here.

In pertinent part, the Georgia Act defines an “enterprise” as “any person . . . corporation ... or other legal entity ... or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities.” OCGA § 16-14-3 (6). Plaintiff alleges that the RICO enterprise consisted of Anneewakee and various other named and unnamed corporations, individuals, and entities. However, she only alleges that she suffered harm at the hands of Anneewakee, its agents, and employees, and Anneewakee is the only defendant upon whom service has been perfected.

Prohibited activities under the Georgia RICO Act are set out in OCGA § 16-14-4. Prohibited activities under the federal RICO Act are set out in 18 USC § 1962. Section 1962 (a) provides, in pertinent part, “It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise. . . .” There is no counterpart provision in the Georgia Act.

Sections 1962 (b) and 16-14-4 (a) are counterpart provisions, although there are significant differences between the two. Chancey v. State, 256 Ga. 415, 418 (349 SE2d 717) (1986). Section 16-14-4 (a) states that “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.”

Sections 1962 (c) and 16-14-4 (b) are likewise counterpart provisions. Section 16-14-4 (b) states that “[i]t is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.”

Most courts have construed the express language of § 1962 (c) to require that the “person” who engages in the pattern of racketeering activity be an entity distinct from the “enterprise.” Schofield v. First Commodity &c., 793 F2d 28, 29 (1st Cir. 1986) and cits. The policy reason, as articulated in Parnes v. Heinold Commodities, 548 FSupp. 20, 23-24 (N.D. Ill. 1982), is that the enterprise may very well be the victim of the racketeering activity. As far as we have detected, only one federal circuit court of appeal has rejected the separate person/ enterprise distinction. United States v. Hartley, 678 F2d 961, 988 (11th Cir. 1982), cert. denied, 459 U. S. 1170, 1183 (103 SC 815, 74 LE2d 1014) (1983).

However, it was held in Haroco, Inc. v. American Nat. Bank &c. Co., 747 F2d 384, 402 (3) (7th Cir. 1984), aff’d on other grounds, 473 U. S. 606 (105 SC 3291, 87 LE2d 437) (1985), that a corporation-enterprise may be held liable under § 1962 (a) when the corporation is also a perpetrator. This approach makes the corporation-enterprise liable under RICO when the corporation is actually the direct or indirect beneficiary of the pattern of racketeering activity, but not when it is merely the victim, prize, or passive instrumentality of racketeering. Id. Haroco’s interpretation of § 1962 (a) has been followed in other circuits. Petro-Tech v. Western Co. of N. America, 824 F2d 1349, 1361 (8) (3d Cir. 1987); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F2d 1393, 1398 (2) (9th Cir. 1986). It has likewise been held that under § 1962 (b), which is the counterpart to our § 16-14-4 (a), a corporation may be both the “person” and the “enterprise,” if it is the direct or indirect beneficiary of the pattern of racketeering activity. Schreiber, supra.

There is evidence that by committing mail fraud, Anneewakee was the perpetrator and direct beneficiary of a pattern of racketeering activity and not merely a victim or passive instrumentality. Compare First Nat. Bank of Louisville v. Lustig, 727 FSupp. 276 (E.D. La. 1989); compare also Big Brother/Big Sister of Metro Atlanta v. Terrell, 183 Ga. App. 496, 498 (3) (359 SE2d 241) (1987). This subjects Anneewakee to RICO liability under § 16-14-4 (a).

However, in this case there is evidence that Anneewakee agents or employees committed predicate offenses alleged in Reaugh’s pleadings, and there are material issues of fact with respect to whether An-neewakee was a party to or involved in the commission of these offenses. Compare McLendon v. Baker Lumber Co., 126 Ga. App. 329 (190 SE2d 622) (1972); First Nat. Bank of Louisville v. Lustig, supra. With respect to such offenses, the RICO enterprise may consist of a corporation and its agents or employees. Compare Lustig, supra (RICO plaintiff cannot hold a company vicariously liable for racketeering activity of employee).

(b) Anneewakee argues that under § 16-14-4 (a), it is only unlawful to engage in racketeering activity in order to acquire or maintain control of an enterprise, and there is not one shred of evidence that Anneewakee engaged in racketeering activity for this purpose.

This argument is without merit. Section 16-14-4 (a) is broader than its federal counterpart, in that § 16-14-4 (a) makes it unlawful for any person, through a pattern of racketeering activity, to acquire or maintain any interest in or control of “real property, or personal property of any nature, including money,” as well as “any enterprise.” Chancey, supra. There is evidence that Anneewakee (unquestionably a “person” under the RICO Act), through a pattern of racketeering activity, i.e., mail fraud, acquired an interest in or control of money.

(c) Anneewakee argues that by the express terms of § 16-14-2 (b) (declaring that the legislative intent is to impose sanctions against the subversion of the economy by organized criminal elements) and by analogy to § 1964 (c) of the federal RICO Act (only allowing a recovery for injuries to business or property), the Georgia RICO Act precludes recovery for personal injuries.

Decided June 10, 1994

Reconsideration dismissed July 29, 1994 and Reconsideration denied July 29, 1994

Lovett & Hicks, William E. Hicks, Frederick V. Massey, for appellants.

Long, Weinberg, Ansley & Wheeler, Marvin A. Devlin, Johnathan T. Krawcheck, for appellees.

This argument is without merit. The expression of legislative purpose in enacting Georgia’s RICO Act is not an element of a civil cause of action under the Act. State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988). The Georgia Act gives a cause of action to “[a]ny person who is injured by reason of any violation of Code Section 16-14-4. . . .” OCGA § 16-14-6 (c). Unlike the federal Act, it does not limit damages to injuries to business or property.

(d) The fact that Anneewakee was a legitimate corporation does not insulate it from RICO liability. Section 16-14-3 (6) defines “enterprise” as including “illicit as well as licit enterprises.” Accord United States v. Turkette, 452 U. S. 576 (101 SC 2524, 69 LE2d 246) (1981) (interpreting the federal Act).

Consequently, we hold that the trial court erred in granting An-neewakee’s motion for summary judgment on plaintiff’s RICO claim.

Judgment affirmed in part and reversed in part.

Andrews and Johnson, JJ., concur.

       Ironically, Anneewakee’s position is likewise that the release and covenant violate public policy, but only to the extent that they purport to bar plaintiff from asserting her claims for breach of third-party beneficiary contract, breach of written contract, and breach of fiduciary duty. This position is premised on the argument that these are in reality claims for medical malpractice which are barred by the medical malpractice statutes of limitation and repose. The trial court apparently did not agree with this argument, since its rulings in favor of Anneewakee are not based on these claims being ones for medical malpractice. We do not agree with the argument either. A medical malpractice action is a professional negligence action which calls into question the conduct of a professional in his area of expertise. Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (2) (354 SE2d 872) (1987). Although plaintiff does allege that Anneewakee failed to provide her with medical services for which her parents were fraudulently billed, she does not allege professional negligence or call into question the conduct of any professional in his area of expertise. She does not seek damages resulting from death or personal injury arising out of health, medical, or dental services rendered. OCGA § 9-3-70.


author: Pope, Chief Judge. Smith, Judge,

text:
    A94A0354.
    MORGAN v. STARKS.
    (447 SE2d 651)
   Pope, Chief Judge.

This personal injury case was dismissed without prejudice when neither party appeared for a peremptory calendar call. See Uniform Superior Court Rule 20 (A). The court failed to notify the parties of the dismissal, however, and neither party discovered it. Approximately nine months later, the parties learned the case had been dismissed. Citing Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980), plaintiff then moved the court to set aside the judgment and reenter a new order dismissing the case, thereby enabling plaintiff to refile her action within six months. See OCGA § 9-11-41. The trial court granted this motion, and defendant appealed.

In Cambron, the Supreme Court held that where the losing party is not informed of the entry of an appealable order until after the time for appeal has run, a motion to set aside the judgment based on a clerical error under OCGA § 9-11-60 (g) should be granted and the order should be reissued to allow a timely appeal. 246 Ga. at 147-149 (1). Defendant points out that the order entered in Cambrón was the denial of a motion for new trial and the Court in that case relied in part on the trial court’s obligation to notify the losing party of its decisions under OCGA § 15-6-21 (c). Since OCGA § 15-6-21 (c) appears to cover only a trial court’s decisions on motions, and the trial court’s order dismissing this case for failure to prosecute was not made in response to a motion, defendant argues that the trial court erred in utilizing the procedure set forth in Cambron here. We disagree. While the language of OCGA § 15-6-21 (c) appears to apply only to decisions on motions, the logic of mandating notice to allow the losing party to take appropriate action applies with even stronger force to final judgments, including dismissals for failure to prosecute; and we have in fact indicated that the notice requirement and the reasoning of Cambrón apply to final judgments as well as decisions on motions. See Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812 (1) (403 SE2d 94) (1991); Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983); Jefferson-Pilot Fire &c. Co. v. Combs, 166 Ga. App. 274 (304 SE2d 448) (1983). Accordingly, we approve the trial court’s utilization of the Cambrón procedure to allow the merits to be reached in this case.

The dissent suggests plaintiff should be unable to rely on Cam-brón because she was at “fault” to some degree in failing to appear at the peremptory calendar call, thereby causing the dismissal. However, all dismissals for failure to prosecute are to some degree the plaintiff’s “fault”; yet the legislature has mandated that cases dismissed on this ground be renewable. It was not the dismissal (which was plaintiff’s “fault”) which prevented adjudication on the merits, but rather the court’s failure to notify the parties of the dismissal (which was not). We do not consider notification of parties when a case is dismissed to be either a novel notion or an undue burden on the court; and where a court fails to notify parties of a dismissal and a plaintiff is unable to pursue its action on the merits as a result, the court does not abuse its discretion by vacating the dismissal and reentering a new one.

Defendant also contends the trial court was without jurisdiction to set aside the judgment of dismissal because the motion to set aside was brought after the expiration of the term in which it was entered. See Goode v. O’Neal, Banks &c., 165 Ga. App. 162 (300 SE2d 191) (1983). However, Goode holds only that the court’s inherent power to set aside a judgment for any “meritorious reason” is limited to motions to set aside filed in the same term. See 165 Ga. App. at 162. Motions to set aside for the reasons set forth in OCGA § 9-11-60 may be granted as long as the motion is brought “within three years from entry of the judgment complained of,” OCGA § 9-11-60 (f), and plaintiff’s motion in this case was brought well within that three-year period.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Beasley, P. J., Johnson, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Andrews and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. I agree in theory with the majority that the reasoning of Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980) may apply to final judgments in an appropriate case. However, the holding of Cambron is one born of necessity. At the risk of overstatement, in its broadest sense Cambron remedies a situation where the losing party was not to blame for the failure to timely take steps to remedy an adverse judgment. See, e.g., Tucker Station, Ltd. v. Chalet I, 203 Ga. App. 383, 384 (1) (417 SE2d 40) (1992). So long as there is a supportable finding that the losing party was not at fault in failing to timely pursue the right of review or other remedy available to her, I would find no abuse of discretion in applying the Cambron procedure. However, no such finding can be supported in the present case.

First, the majority ignores the fact that plaintiff herself caused the dismissal by failing to appear at a peremptory calendar call. Second, even if I were willing to concede that plaintiff’s failure to appear was the result of excusable neglect, the failure to timely discover and endeavor to correct that omission for nine months remains. Third, the majority relies on the establishment of a novel notice requirement which serves no valid purpose. This plaintiff knew, or should have known, that she missed the calendar call; she knew, or should have known, the potential consequences of her failure to appear. Under the circumstances there is simply no excuse for Starks’s failure to apprise herself of the status of her case during the course of the succeeding six to nine months, and no conceivable basis on which to make a presumption to the contrary. Compare Wright v. Archer, 210 Ga. App. 607, 608 (1) (436 SE2d 775) (1993). Finally, while it is not proper to address the question of whether Starks is the victim of attorney neglect, I suggest that if such neglect exists, the procedure outlined in Cambrón is not the proper method to address it.

Decided July 13, 1994

Reconsideration denied July 29, 1994.

Beck, Owen & Murray, William M. Dallas III, for appellant.

Shepherd & Brown, Timothy N. Shepherd, Lane, O’Brien, Cas-well & Taylor, Stephen J. Caswell, Cramer & Peavy, Timothy C. Cramer, for appellee.

As a matter of law, Starks (or her present or former counsel) is at least partially to blame for her failure to appear at calendar call and for thereafter losing her right to refile her cause of action. The trial court’s application of Cambrón to these facts was therefore an abuse of discretion.

I am authorized to state that Judge Andrews joins in this dissent.

       In her brief, plaintiff asserts that (1) her counsel did not know of the peremptory calendar call because she had changed attorneys without notifying the court and (2) the parties continued negotiating after the case was dismissed and discovered the dismissal only when they acknowledged that a settlement was not possible and asked for a pre-trial conference. Contrary to plaintiff’s contention, however, assertions in briefs are not evidence which this court can consider. Fortunately, this information is not necessary to our decision.

       The dissent also suggests plaintiff was at “fault” in failing to discover the dismissal on her own despite the lack of notice. As this type of “fault” is present in any case where a party has lost its right to pursue the merits of an action due to lack of notice of a court’s decision, it does not distinguish this situation from that in Cambron.


author: Johnson, Judge. Blackburn, Judge, Beasley, Presiding Judge,

text:
    A94A0409.
    In the Interest of L. A. E., a child.
    (447 SE2d 627)
   Johnson, Judge.

L. A. E., a juvenile, was arrested for allegedly shooting and killing another juvenile. A petition charging L. A. E. with murder was filed in the juvenile court on March 24, 1993, and an arraignment was scheduled for March 30, 1993. At the arraignment hearing, the state moved for a continuance on the ground that it needed more time to investigate whether to seek a transfer of the case to superior court. Over L. A. E.’s objection, the court granted the motion. Although it does not appear that the court rescheduled the arraignment, the court did schedule a transfer hearing for May 6, 1993. Prior to the transfer hearing, L. A. E. filed a motion to dismiss the petition because he was still in detention and the adjudicatory hearing had not been set within ten days of the filing of the petition as required by OCGA § 15-11-26 (a). The court denied that motion, finding that OCGA § 15-11-26 (a) had been complied with because the arraignment hearing had been set within the ten-day limit. Thereafter, at the May 6 hearing, the court denied the state’s request to transfer the case to superior court. The adjudicatory hearing was held on June 25, 1993, and the court found L. A. E. to be delinquent on the murder charge. L. A. E. appeals.

1. L. A. E. contends that the juvenile court erred in denying his motion to dismiss the petition because no adjudicatory hearing was set within ten days of the filing of the petition. “OCGA § 15-11-26 (a) specifies that the court shall fix a date for an adjudicatory hearing on a petition alleging delinquency not later than 10 days from the date of the filing of the petition.” (Emphasis supplied.) Johnson v. State, 183 Ga. App. 168, 169 (2) (358 SE2d 313) (1987); see also J. T. G. v. State of Ga., 141 Ga. App. 184, 185 (233 SE2d 40) (1977). While the adjudicatory hearing itself need not be conducted within ten days of the filing of the petition, the hearing date must be set within that period. In the Interest of L. T. W., 211 Ga. App. 441, 442 (1) (439 SE2d 716) (1993). “[I]f a hearing is set within the statutory time limit, the court may in its discretion grant a continuance.” (Citation and punctuation omitted.) In re J. B., 183 Ga. App. 229 (2) (358 SE2d 620) (1987); Johnson v. State, supra at 169 (2). In the instant case, although L. A. E. was in detention, the juvenile court failed to set a date for an adjudicatory hearing within ten days of the filing of the petition; rather, the court merely scheduled an arraignment hearing within that time limit.

“The arraignment hearing is an optional formal hearing which may be conducted in conjunction with the detention hearing or in a separate hearing. The purpose of the arraignment hearing is to formally advise the child of his rights to counsel, to remain silent and to a hearing before the judge; to advise him of the allegations as they are stated in the petition; and to offer the child an opportunity to enter an admission or a denial to the charges against him.” Uniform Juvenile Court Rule 10.1. On the other hand, “[t]he purpose of the adjudicatory hearing is to determine if the allegations contained in the petition are true.” Uniform Juvenile Court Rule 11.1. See C. P. v. State, 167 Ga. App. 374, 375 (2) (306 SE2d 688) (1983). Because of the different purposes for arraignment and adjudicatory hearings, the time limits established by OCGA § 15-11-26 (a) cannot be met by substituting an arraignment for an adjudicatory hearing. “Time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to.” Crews v. Brantley County Dept. of Family &c. Svcs., 146 Ga. App. 408, 409 (1) (246 SE2d 426) (1978); J. T. G. v. State of Ga., supra at 185. Here, the juvenile court did not strictly adhere to the ten-day time limit and denied L. A. E. his right to a speedy trial by failing to schedule an adjudicatory hearing until three months after the petition was filed. The only available remedy for one denied his right to a speedy trial is dismissal. R. A. S. v. State of Ga., 156 Ga. App. 366, 367 (274 SE2d 752) (1980). The trial court erred in denying L. A. E.’s motion to dismiss the petition.

2. In light of our holding in Division 1, we need not address L. A. E.’s other enumeration of error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Andrews, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Blackburn, J., concurs specially. Pope, C. J., and Beasley, P. J., dissent.

Blackburn, Judge,

concurring specially.

I concur specially with Judge Johnson. I agree with the majority that an arraignment and an adjudicatory hearing are not the same and that an arraignment, rather than an adjudicatory hearing, was scheduled by the summons and process in the present case. The dissent fails to acknowledge that the summons and process used herein are form documents that are used to command the appearance of anyone listed to a court appearance of any kind. In the present case, all counsel and the judge referred to the hearing as an arraignment. The judge’s order further reflects that he was continuing the arraignment. As opposed to the summons and process forms, the form order used to continue the arraignment required that the type of hearing be listed in the space provided. Here, the judge designated that an arraignment was being continued. The merits of the case were not scheduled to be heard on March 30, 1993. The evidence in the record indicates that those present at the hearing were all in agreement that it was an arraignment that was scheduled to occur.

OCGA § 15-11-26 (a) provides that “[a]fter the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. In the event the child is not in detention, the court shall fix a time for hearing thereon which shall be not later than 60 days from the date of the filing of the petition.” The statute really provides no meaningful protection for the child if it merely requires the scheduling of the hearing within ten days. The actual date of the hearing could be several months in the future. It is the limitation on the time that the hearing is held, not when it is scheduled, that provides a safeguard for the subject child. If the statute was intended to relate only to the scheduling and not to the conduct of the hearing, why would an additional 50 days be allowed for such an act when the defendant is not in detention, as the detention itself is not a factor in the accomplishment of that task? It is apparent to me that in factual situations such as the one presented herein, the defendant’s civil liberties are at stake and the statute must be strictly construed. Crews v. Brantley County Dept. of Family &c. Svcs., 146 Ga. App. 408, 409 (246 SE2d 426) (1978); J. B. H. v. State of Ga., 139 Ga. App. 199, 203 (228 SE2d 189) (1976). The adjudicatory hearing, once timely scheduled, can be continued in the discretion of the trial court in a proper case.

In several cases, we have incorrectly stated “that OCGA § 15-11-26 (a) requires merely that a hearing date be set within ten days of the filing of the petition and not that the hearing itself be conducted within that period.” In the Interest of L. T. W., 211 Ga. App. 441, 442 (439 SE2d 716) (1993). See also Johnson v. State, 183 Ga. App. 168, 169 (358 SE2d 313) (1987); and P. L. A. v. State, 172 Ga. App. 820, 822 (324 SE2d 781) (1984) (Beasley, J., concurring specially). I would disapprove of that statement in those cases, however, it is not necessary to overrule them because in each of those cases, the date of the hearing was originally set for a date within ten days of the filing of the petition. Id. While the result of the cited cases was correct, the analysis of OCGA § 15-11-26 (a) was not. In Brown v. Fulton County Dept. of Family &c.. Svcs., 136 Ga. App. 308 (1) (220 SE2d 790) (1975) the hearing was originally set for a date not more than ten days after the petition was filed, however, the hearing was continued due to the absence of necessary witnesses. Id. We determined that “the time for the hearing must be set for a time not later than 10 days after the petition [was] filed.” Id. at 309. We held that the grant of the continuance was proper and, as the original hearing date was scheduled for a time within ten days from the filing of the petition, the mandates of OCGA § 15-11-26 (a) had been satisfied. Id. In J. B. v. State of Ga., 171 Ga. App. 373 (2) (319 SE2d 465) (1984), the date for the hearing was originally set for eight days from the date the petition was filed. Id. Thereafter, a continuance was granted, and the hearing was held at a later time. Id. Our opinion in J. B. did not address the issue before us in this case.

In J. B. H. v. State of Ga., supra, we determined that the trial court erred in overruling J. B. H.’s motion to dismiss as the delinquency petition was not filed within 72 hours of the delinquency hearing and the adjudicatory hearing was not set for a date within ten days of the filing of the petition. In Crews, supra, the petition was filed and the scheduling of the hearing occurred on November 23, 1975. The hearing date was set for December 5, 1975, 12 days after the petition was filed. We determined that the trial court erred in failing to dismiss the petition as the hearing was untimely held. 146 Ga. App. at 409. In Irvin v. Dept. of Human Resources, 159 Ga. App. 101, 102 (282 SE2d 664) (1981), the hearing date was set for a date beyond ten days from the filing of the petition and we reversed the trial court’s denial of Irvin’s motion to dismiss. In Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 408 (229 SE2d 66) (1976), the Georgia Supreme Court acknowledged that the hearing date must be set for a date within ten days from the filing of the petition, but did not reverse on that issue as Sanchez had failed to preserve his objection at the trial court.

“In re Gault, 387 U. S. 1 (87 SC 1428, 18 LE2d 527) [(1967)] required that in appropriate situations the same constitutional standards apply to juveniles as to adults. In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) [(1972)] the Supreme Court adopted a four-factor test for adjudging whether or not the constitutional right to a speedy trial has been violated. These four factors apply to adult criminal defendants in Georgia. See Sanders v. State, 132 Ga. App. 580, 582 (208 SE2d 597) [(1974)] and cits. We note, however, that in Barker v. Wingo, Mr. Justice Powell observed at page 523 that ‘The States, of course, are free to prescribe a reasonable period consistent with constitutional standards. . . .’ Our interpretation of these words from the Barker decision is that where a legislative body has defined the right to speedy trial in terms of days, then the time limits must be strictly complied with. . . . Accordingly, we hold that time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to.”

“As Chief Justice Burger observed in Strunk v. United States, 412 U. S. 434 [(93 SC 2260, 37 LE2d 56) (1973)] the only available remedy for one denied his constitutional right to a speedy trial is dismissal. Accordingly, the juvenile court judge here erred in overruling the motion to dismiss.” J. B. H. v. State of Ga., supra at 202-203.

OCGA § 15-11-26 (a) is the equivalent of a statutorily provided speedy trial demand which does not require a specific demand by the child. The trial court does however have discretion to properly grant a continuance of a hearing set for a date within ten days from the filing of the petition, see In re J. B., 183 Ga. App. 229 (2) (358 SE2d 620) (1987), thus protecting both parties from participating in a hearing before they are properly prepared. Finally, if the case is transferred to the superior court within ten days of the petition being filed, the juvenile court rules no longer apply and the ten-day limitation need not be met. Therefore, the statute protects the interests of both the child and the State. Due to properly granted continuances granted by the trial court, the actual hearing did not take place within the prescribed ten days. Id. The present case is distinguishable in that the adjudicatory hearing was not originally set for a date within the ten-day limitation, but only an arraignment was so scheduled.

The occasions on which an adjudicatory hearing can be held outside the ten-day limitation are limited to situations in which a continuation is properly granted by the judge of a timely adjudicatory hearing or where the judge transfers the case to superior court.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent.

The record shows that a complaint was filed in the juvenile court on March 22 by the police officer who took the child into custody, detailing the offense of March 20. OCGA § 15-11-17 (a) (2) or (3). The child was detained at the child treatment center.

The next day, March 23, a pre-petition detention hearing pursuant to OCGA § 15-11-21 (c) (1) was held and the court found that probable cause existed to suspect that the child had committed murder and violated probation. The court recommended that a petition issue and that the child continue to be detained because it found present the first two conditions of the four alternative conditions authorized by OCGA § 15-11-18. The public defender, who represented the child at the hearing, was appointed to continue.

A petition alleging murder (OCGA § 16-5-1) and probation violation (OCGA § 15-11-42 (b)) was filed on March 24, pursuant to OCGA §§ 15-11-23 to 15-11-25. On that date also, copy of the summons and process and service of the same was filed, showing that a hearing was set by the court on March 23, to be held on March 30. The summons required the child and his mother to appear “to make defense” to the petition and “to show cause why the said child . . . should not be dealt with according to the provisions of the law.” It expressly required them “to be present at a formal hearing in the Juvenile Court” and to remain in attendance as the case “may be continued, and until discharged by the court.” This conformed to OCGA § 15-11-26 (a) and (b). At the same time, the child and his mother were served with notice that before the hearing on the merits of the petition, and at the same time and place designated for the hearing noticed in the summons, the court would consider transfer to the adult criminal court, as authorized under OCGA § 15-11-39. The hearing referred to was the adjudication hearing because it notified the parent and child to be prepared to “make defense” and “show cause,” as stated above.

The court did hold a hearing on March 30 but did not reach the merits of the petition. From the tenor of what transpired, it appears that by the time the hearing actually commenced, neither side expected to reach adjudication that day. The court considered a motion by the local newspaper for access to the proceedings and ruled that they would be open except for any dispositional hearing, for which the movant would have to make another request. The public defender announced that he was “ready to proceed with arraignment” even though this type optional formal hearing had not been set in motion as contemplated by UJCR 10. The State asked for a continuance of the hearing to garner additional information so it could decide whether to seek a transfer to the superior court. The child’s attorney objected. A constitutional issue with respect to OCGA § 15-11-21 (c) (1), raised by the child’s attorney regarding the timeliness of the probable cause hearing, was aired. The court rejected the challenge and ruled that “the child will be detained pending further hearings.” The court refused to set a bond because of the seriousness of the offense and the child’s prior record. It acceded to the State’s request for a continuance of the proceeding and set it for May 6. There was no objection to the continuance.

On May 6 the question of transfer was considered, and the court ruled that the child would be tried as a juvenile, in that court. The adjudicatory hearing transpired on June 25, the court found the child to be delinquent as alleged, and disposition was made on July 2.

Appellant has styled the hearing of March 30 as an “arraignment hearing” as contemplated by UJCR 10.1 et seq. He contends that such is insufficient to satisfy the mandate of OCGA § 15-11-26 (a), which as interpreted by the appellate courts requires that within ten days of the petition’s filing, the court must set an adjudicatory hearing. It is true that such a hearing must be set. Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406 (229 SE2d 66) (1976); J. T. G. v. State of Ga., 141 Ga. App. 184 (233 SE2d 40) (1977); Johnson v. State, 183 Ga. App. 168 (2) (358 SE2d 313) (1987).

In this case, there was no optional arraignment hearing of the nature and purpose contemplated by UJCR 10.1. That is not what was set by the summons or by the notice. The hearing that was set “not . . . later than ten days,” as required by OCGA § 15-11-26 (a), was the adjudicatory hearing. This the court recognized in denying appellant’s motion to dismiss the petition, which motion had urged this ground. The summons supports the court’s ruling. The formal order of continuance, entered pursuant to OCGA § 15-11-28 (a), refers to “Arraignment” hearing in a typed-in space on the form. However, the transcript of that hearing, the court’s ruling on appellant’s motion to dismiss, and the wording of the summons, all demonstrate that the characterization was a misnomer. No arraignment occurred.

Not only was hearing on the petition set within ten days, it was commenced within ten days and one preliminary matter was decided and another postponed. It is not required that the adjudicatory hearing be held within ten days. Johnson, supra at 169, and cases cited therein. The statute requires only that hearing on the petition be set to be held within ten days after the petition is filed. As noted in Johnson, “a continuance may be granted in the sound discretion of the trial court.” See also In re J. B., 183 Ga. App. 229 (2) (358 SE2d 620) (1987); In the Interest of L. T. W., 211 Ga. App. 441 (1) (439 SE2d 716) (1993); UJCR 11.3.

Decided June 22, 1994

Reconsideration denied July 29, 1994

Mark R. Pollard, for appellant.

Lewis R. Slaton, District Attorney, Sally A. Butler, Carl P. Greenberg, Assistant District Attorneys, for appellee.

That is precisely what transpired here, and it is no wonder. It would be extraordinary for a case of the magnitude of murder to be readied for trial within ten days of the filing of the petition. In fact, the hearing began on the tenth day after the offense. As in L. T. W., supra, “hearing dates were not only fixed within ten days of the filing of the petitions, but the hearings themselves were to be held within that time frame.” To meet the requirements of OCGA § 15-11-26 (a), it was not necessary to actually hold the adjudicatory hearing within ten days; proper continuances may be, and were, granted.

The court dealt with this case expeditiously and within the requirements of the law. The continuances did not constitute an abuse of discretion, considering that the wisdom of transfer was one of the preliminary questions. See OCGA § 15-11-39.

Inasmuch as there was no error in this regard, and the other alleged error was not one, the judgment of the juvenile court should be affirmed.

I am authorized to state that Chief Judge Pope joins in this dissent.

       The premise of the dissent is that “[t]he hearing that was set ‘not. . . later than ten days,’ as required by OCGA § 15-11-26 (a), was the adjudicatory hearing.” This premise is contrary to the evidence in the record, which shows that the hearing scheduled within ten days of the filing of the petition was an arraignment. At the hearing held on March 30, the judge, the prosecutor and the juvenile’s attorney all refer to the hearing as the arraignment; none of them refer to it as the adjudicatory hearing. In the order granting the state’s motion for a continuance, the judge wrote that the case “came on for a[n] Arraignment hearing on March 30, 1993.” Moreover, a review of the transcript of the hearing reveals that the court and the parties did not intend to reach the merits of the case at that time.


author: Smith, Judge. Pope, Chief Judge,

text:
    A94A0466.
    ENGLAND v. THE STATE.
    (447 SE2d 654)
   Smith, Judge.

Jermaine Randolph England and a codefendant were charged with armed robbery and possession of a firearm during the commission of a felony. England was convicted of the former charge and acquitted of the latter. He appeals, claiming the trial court erred in allowing the State to impeach an alibi witness’s character with the witness’s “first offender conviction [sic]” and in subsequently instructing the jury “as to the effect of said impeachment.”

England’s witness testified on direct examination that he had been convicted in the past of shoplifting, but no other crime. During cross-examination a bench conference was held at which the following transpired:

“THE STATE: [The defense witness has] been convicted of theft by receiving, and I’m gonna use that to impeach him, because first of all, that’s the only thing he said — he said he was only convicted of shoplifting, —
“THE COURT: That’s correct.
“THE STATE: [inaudible]. . . .
“THE STATE: And he’s also “first offender” under that. And the State can, under . . .
“TRIAL COUNSEL: We have no objection to that, Your Honor.” (End of bench conference.) The State then proceeded to confront the witness with his prior “conviction” for theft by receiving. On redirect, trial counsel confirmed that the shoplifting charge brought out on direct examination and the theft by receiving charge brought out on cross-examination, were treated together “as sort of a package” — “all done at one time.”

Trial counsel then asked the witness whether his first offender status had ever been revoked. The witness responded negatively. Trial counsel then addressed the court: “As a matter of law, now that this evidence is out, I’m gonna move to with — to have the court withdraw from consideration State’s Exhibit 23, because first offender status was given and was never revoked. And this man has never been convicted of anything.” The court agreed that first offender treatment is not a “conviction.” See OCGA §§ 42-8-60; 42-8-62 (a). The State asked for an opportunity to research the law, and the court reserved ruling on whether the disputed exhibit would go out with the jury.

When the matter was revisited, trial counsel requested that the court fashion a charge “just to let the jury know that he’s never been convicted, but that he’s been impeached. . . .” The exhibit was ultimately sent out with the jury at the time of deliberation.

1. We first note that trial counsel at no time challenged whether the witness’s first offender treatment for theft by receiving was properly used to impeach his claim that he had never been convicted of any crime other than shoplifting. On the contrary, trial counsel conceded that his witness had been impeached when he requested a charge to that effect. Therefore, that issue is not before us. Strong v. State, 263 Ga. 587, 589 (3) (436 SE2d 213) (1993).

Since the impeachment of England’s witness is not at issue, we find no basis for reversal. The exhibit in question merely documented facts brought out by the State without objection when the defense witness was “impeached.” Moreover, the exhibit actually confirms England’s assertion that the witness received first offender treatment rather than a conviction on the theft by receiving charge. Since the exhibit was merely cumulative of evidence brought out without objection on cross-examination of England’s witness, any error in allowing the exhibit to go out with the jury was harmless. See, e.g., Williams v. State, 256 Ga. 655, 657 (2) (352 SE2d 756) (1987).

2. England complains that the court’s instruction on the effect of his witness’s first offender plea was confusing, misleading, and incorrect. However, the potentially damaging impact of the first offender plea on the witness’s credibility would not be lessened significantly by an instruction on the proper characterization of that plea under Georgia law, no matter how accurately stated. Since the challenged instruction involved at best a collateral matter, we find any error to be harmless. See Kemp v. State, 163 Ga. App. 680, 682 (3) (296 SE2d 71) (1982).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Andrews, J., and Senior Appellate Judge Harold R. Banke concur. Beasley, P. J., and Johnson, J., concur in the judgment only. Pope, C. J., and Blackburn, J., dissent.

Pope, Chief Judge,

dissenting.

I write separately because I believe it is necessary to address the question left unanswered by the majority: may a first offender record be used to impeach a witness in a criminal case?

There are several ways to impeach a witness. See OCGA §§ 24-9-82 through 24-9-84. One way a witness may be impeached is to present evidence that the witness has been convicted of a felony or a crime involving moral turpitude. Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (1984); OCGA § 24-9-84. Georgia law specifically provides that upon fulfillment of the terms of probation under the first offender statute, “the defendant shall be discharged without adjudication of guilt [and] shall not be considered to have a criminal conviction.” (Emphasis supplied.) OCGA § 42-8-62. “This provides the person who successfully completes his probation under the first offender statute protection against the stigma of a criminal record.” Witcher v. Pender, 260 Ga. 248, 249 (392 SE2d 6) (1990). I have long held the view that this plain language of the statute precludes the use of a first offender record to impeach a witness by showing conviction of a felony or crime involving moral turpitude. Hightower v. General Motors Corp., 175 Ga. App. 112, 115-118 (332 SE2d 336) (1985) (Pope, J., dissenting). It is also my belief that such a use would contravene the obvious intent of the legislature in enacting the first offender statute.

In Favors v. State, 234 Ga. 80 (214 SE2d 645) (1975), our Supreme Court considered whether a defendant in a criminal case was entitled to impeach a witness for the State by use of the witness’ first offender record. The court in Favors stated the issue as follows: “we are called upon here, as a matter of first impression in this state, to undertake to balance the protection afforded by law to a first offender with the right of a person accused of [a] crime to cross examine the witnesses called against him. Shall the rights of the first offender, or those of the defendant charged with a crime, be protected at the expense of the other?” Id. at 86. In deciding this issue, the court recognized both that a “ ‘conviction’ [as opposed to the fact of indictment, arrest or trial] is critical to impeachment by prior conviction of [a] crime” and that a defendant who has been accorded first offender treatment “shall thereafter not be considered to have a criminal conviction.” (Citation and punctuation omitted.) Id. at 86. However, the court concluded that “balancing the rights of a first offender to be protected against having the stigma of a criminal record as opposed to the rights of a defendant in a criminal case to impeach the testimony of the witnesses against him, the latter prevails.” Id. at 87. See also Gilstrap v. State, 250 Ga. 814 (301 SE2d 277) (1983) (following Favors, holding trial court erred in refusing to allow defendant to impeach State’s witness with first offender record).

More recently, in the case of Witcher v. Pender, the Supreme Court considered the issue of whether a first offender record of an adverse witness in a civil case was admissible to impeach the witness by showing the witness had been convicted of a felony or a crime involving moral turpitude. In Witcher, unlike Favors, the Supreme Court was not concerned with a “balancing of rights” but instead based its ruling on the express language of the statute and the obvious intent of the General Assembly. The court thus reasoned that since there was no “conviction” in a case given first offender treatment, the first offender record could not be used to impeach an adverse witness by showing that the witness has been convicted of a crime involving moral turpitude. Compare Hightower v. General Motors Corp., 255 Ga. 349, 351 (338 SE2d 426) (1986) (holding first offender plea admissible to disprove or contradict testimony of the plaintiff).

By examining the Supreme Court’s decisions in Favors and Witcher, supra, the fallacy of this court’s decision in Division 1 of Moon v. State, 154 Ga. App. 312 (268 SE2d 366) (1980) becomes clear. In that case, this court, without analysis, extended the exception announced in Favors to allow the use of first offender records in criminal cases to impeach defense witnesses. However, the court offered no explanation as to how the balancing of rights analysis offered in Favors could apply when the defendant’s witness was being impeached. Likewise, in the more recent case of Metheny v. State, 206 Ga. App. 275 (424 SE2d 857) (1992) this court again held that a first offender record was admissible to impeach a defense witness, stating “[a]ssuredly the State’s interests in a criminal prosecution are not outweighed by a defense witness’ right to be shielded from the ‘stigma’ of having committed a crime.” Id. at 277. However, in neither Metheny nor Moon was any “right” or “interest” of the State spelled out, and I believe that in the absence of a compelling reason, i.e., protection of a constitutional right such as in Favors, the right of the first offender to be protected from the stigma of a criminal record must predominate. See Hightower, supra at 352 (Bell, J., concurring specially). It is thus my opinion that both Moon and Metheny should be overruled to the extent that these cases allow the State to use a witness’ first offender plea as a “conviction” for impeachment purposes. Moreover, while overruling these cases may not be mandated by the Supreme Court’s holding in the civil case of Witcher, it follows from the reasoning of Witcher that these cases should be overruled.

Decided July 14, 1994

Reconsideration denied July 29, 1994

That use of the first offender record to show a criminal conviction for impeachment purposes contravenes the plain language of the statute is aptly illustrated by the trial judge’s attempt in this case to explain in its charge to the jury how the witness had been impeached by evidence which did not otherwise constitute conviction of a crime. The Court charged “[I]f a person . . . has been held a First Offender, under those circumstances he is not guilty until such timé as the time that he has been given to clear his name has passed. And if he does that, then he has no record. But on the other hand, . . . the defendant’s right to be protected from the stigma of having committed a crime . . . does not keep the State from entering the evidence, the fact... for the purposes of impeachment, that the witness . . . that the witness has been tried and found guilty under — as a First Offender.” The transcript reveals other instances of obvious confusion over the admission of the first offender record, with the trial court trying to reconcile the plain language of the statute with this court’s holdings allowing the admission of the first offender record for impeachment. I believe it is time to clarify the law in this area, and that once the law is made clear it becomes obvious that the State’s questioning of the witness about the crime for which he had received first offender treatment was improper, that the first offender record should not have gone out with the jury during their deliberations, and that the trial court’s charge served to further confuse the issues. In my opinion defendant is entitled to a new trial, free of the taint of improper evidence and confusing jury charges.

I am authorized to state that Judge Blackburn joins in this dissent.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

       Although there is some question about whether the record was actually admitted into evidence, the court reporter noted that it was sent out with the jury.


author: Judge Harold R. Banke. Blackburn, Judge,

text:
    A94A0467.
    WILLIAMS v. THE STATE.
    (447 SE2d 676)
   Judge Harold R. Banke.

The appellant, Sara Williams, was convicted of several violations of the Georgia Controlled Substances Act. Much of the evidence proving those offenses was obtained as a result of the use of a pen register and subsequent wiretap on her residential telephone, the propriety of which forms the primary basis of this appeal.

On March 20, 1992, in the course of investigating reports of the appellant and her family operating a narcotics distribution ring, the Floyd County district attorney obtained authorization for a pen register to be placed on the appellant’s residential telephone for a 20-day period. At the request of the judge who authorized the pen register, the investigating officer with the Rome-Floyd Metro Drug Task Force kept the application and supporting evidence and stored them in a safe at the task force office. The pen register was terminated on April 9, 1992, but the warrant and pen register tapes were not returned until May 1, 1992.

The information gained from the pen register was used to obtain a warrant for the oral interception of the appellant’s residential telephone. From April 9, 1992, to May 13, 1992, a total of 2,194 telephone calls were monitored, of which 318 were considered evidence calls and 240 were minimized.

1. OCGA § 16-11-64 (b) (5) provides that “[t]he application for any investigation warrant under this Code section, any supporting evidence in connection therewith, and any entry of the issuance of an investigation warrant as a result thereof shall remain confidential and in the custody of the judge and shall not be released nor information touching same in any manner be disclosed, except upon written order of the judge or except at the time of trial of the case in which such evidence is used or in which evidence derived from such surveillance is used. . . .” OCGA § 16-11-64 (b) (6) provides that “[t]he applicant for the warrant shall return same and report back to the judge issuing same within 30 days of the issuance of the warrant.”

In the instant case, it was uncontroverted that after obtaining the warrant for the pen register, the investigating officer retained possession of the application for the warrant and supporting documents, rather than leaving them in the custody of the issuing judge as required in OCGA § 16-11-64 (b) (5). Further, the warrant and pen register tapes were not returned until May 1, 1992, 12 days beyond the 30-day deadline provided in OCGA § 16-11-64 (b) (6).

The appellant contends that these procedural violations required suppression of the evidence derived from the use of the pen register. However, she makes no showing of how she was harmed by the State’s noncompliance with OCGA § 16-11-64 (b) (5) and 16-11-64 (b) (6), and we are unable to discern any. “Absent a clear showing of prejudice, failure to comply strictly with administrative requirements does not require suppression of the evidence. [Cit.]” Gonzalez v. State, 175 Ga. App. 217, 221 (333 SE2d 132) (1985).

We note that under OCGA § 16-11-67, evidence obtained in violation of Title 16, Article 3, Part 1 is inadmissible. See Dobbins v. State, 262 Ga. 161 (415 SE2d 168) (1992). However, the statutory provisions in issue in the instant case set forth procedures for safeguarding certain documents, and are unconnected with the actual obtaining of the evidence. Accordingly, the exclusionary provision of OCGA § 16-11-67 is inapplicable here.

2. The appellant also contends that the trial court should have granted her motion to suppress based upon the failure of the investigating officers to show that less intrusive investigative methods had been unsuccessful, and based upon the officers’ failure to minimize the intercepted telephone calls. Those contentions were decided adversely to the appellant in the earlier appeal brought by her son, who was indicted with the appellant and convicted of conspiracy to possess cocaine with the intent to distribute. Williams v. State, 211 Ga. App. 8 (438 SE2d 126) (1993).

3. Relying upon Kelleher v. State, 185 Ga. App. 774, 779 (2) (365 SE2d 889) (1988), the appellant contends that the trial court should have quashed the indictment as to two counts of conspiracy, on the grounds that the indictment designated the intercepted telephone calls as the overt acts necessary to prove conspiracy. Kelleher involved telephone conversations that contained only discussions of future acts, which were insufficient to establish both the conspiratorial agreement and the commission of an overt act in furtherance of the object of the conspiracy.

However, in the instant case, the telephonic conversations referred to completed acts which had been discussed in earlier conversations. Further, some of the overt acts were established by the testimony of witnesses and the surveillance of the appellant and her son. Under these circumstances, the trial court properly denied the appellant’s motion to quash the indictment.

4. The appellant next contends that the trial court erred in admitting into evidence a transcript of the testimony of a witness who testified for the appellant at the hearing on her motion to suppress. We find no error.

Under OCGA § 24-3-10, the testimony of an unavailable witness given at a previous trial may be admitted at a subsequent proceeding, provided the prior testimony involved substantially the same parties and the same issues. Barnes v. State, 256 Ga. 370 (2) (349 SE2d 387) (1986). In the instant case, the parties were identical, and the witness’s testimony pertained to his own drug usage, his role as a State agent, and his purchase of drugs from the appellant and other individuals at the taxicab stand owned and operated by the appellant. That testimony thus involved essentially the same issue as in the trial.

The appellant also argues that the State’s use of the former defense witness’s testimony violated her right to cross-examine the witness. However, “where the issues and parties are identical, and the party against whom the testimony is offered called the witness to the stand at the previous hearing or trial, the need for cross-examination is basically satisfied, and the requirement is met.” (Footnote omitted.) Id. at 371-372.

5. Relying upon Gonzalez v. Abbott, 262 Ga. 671 (425 SE2d 272) (1993), the appellant contends that the trial court should have directed a verdict of acquittal on the charge of conspiracy to traffick cocaine, on the ground that the evidence failed to prove all the elements of the offense of trafficking cocaine. However, in Gonzalez, the Supreme Court overturned a conviction for conspiracy to traffick cocaine because the trafficking statute, upon which the conspiracy charge was based, had been repealed. Gonzalez does not require proof of all the elements of the substantive crime before a conviction for conspiracy to commit that crime may be obtained.

6. We have reviewed the appellant’s remaining enumerations of error which assert that the trial court’s pattern charge on conspiracy was confusing and inadequate, and that trial counsel provided ineffective assistance by failing to request a jury charge on equal access and by failing to object to the State’s reference to the intercepted telephone calls as overt acts, and we find them to be without merit.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, Andrews, Johnson and Smith, JJ., concur. Blackburn, J., dissents.

Blackburn, Judge,

dissenting.

I respectfully dissent. The officers failed to follow the clear mandates of OCGA § 16-11-64 (b) (5) and (6). Therefore, pursuant to OCGA § 16-11-67 the evidence obtained must be suppressed. The citizens of Georgia have the right to expect strict compliance with those statutes allowing invasions into their constitutionally protected rights.

“Wiretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable.” Orkin v. State, 236 Ga. 176, 179 (223 SE2d 61) (1976). Georgia law “must meet the minimum standards of [federal law] in protecting privacy but may impose more stringent requirements and any interception must conform to both the state and federal law.” Ellis v. State, 256 Ga. 751, 754 (353 SE2d 19) (1987). “[F]or evidence obtained through state-authorized wire taps to be admissible in a state criminal proceeding, it must have been obtained in a manner not inconsistent with the requirements of both the federal and state laws. On the other hand, such evidence must be excluded if it was obtained in a manner inconsistent with the mandate of either the federal or the state law. [Cit.]” Cox v. State, 152 Ga. App. 453, 455-456 (263 SE2d 238) (1979).

Decided July 15, 1994

Reconsideration denied July 29, 1994

Crabbe & Clarke, W. Wyatt Clarke, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

The United States Supreme Court and the Georgia Supreme Court require strict compliance with the administrative requirements of wiretap warrant statutes and specifically reject the requirement that the defendant must show harm or prejudice. Therefore, the harmless error doctrine cannot be applied in such cases. See United States v. Rios, 495 U. S. 257, 260 (110 SC 1845, 109 LE2d 224) (1990) (whether tapes bearing seals required suppression as seals not attached immediately as required by 18 USC § 2518 (8) (a)) and King v. State, 262 Ga. 147 (414 SE2d 206) (1992) (State required to show strict compliance rather than substantial compliance with requirements of 18 USC § 2518 (8) (a).). Like the federal statute, Georgia law requires the exclusion of evidence obtained in violation of the mandates for obtaining wiretap evidence. OCGA § 16-11-67.

The use of the word “obtained” in OCGA § 16-11-67 necessarily requires that it include the “gathering” of the evidence, as well as the preservation of the evidence prior to its introduction at trial. This is necessary to protect the State and the public against the tampering, alteration, or destruction of such evidence or even the allegation of same. Therefore, because of the officer’s failure to follow the mandates of the preservation of such evidence, it must be suppressed. Dobbins v. State, 262 Ga. 161 (2) (415 SE2d 168) (1992); Duncan v. State, 259 Ga. 278 (379 SE2d 507) (1989).