text:
    A97A2208.
    BYRON v. THE STATE.
    (495 SE2d 123)
   Ruffin, Judge.

A jury found Nathaniel Byron, Jr. guilty of armed robbery and aggravated assault. Byron appeals, enumerating 13 errors which he contends require reversal. We disagree and therefore affirm Byron’s convictions.

1. We note initially that Byron, who is represented by counsel on appeal, has violated Court of Appeals Rule 27 (c) (1) in preparing his brief. This rule clearly provides that “[t]he sequence of argument or arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Court of Appeals Rule 27 (c) (1). Byron’s arguments are not numbered and do not follow the order of his enumerations of error. This violation of the Court’s rules not only impedes our review of the errors asserted, but also presents the risk that an asserted error will not be addressed because it cannot be correlated with any argument in the brief. See Court of Appeals Rule 27 (c) (2). Despite this violation we will, in accordance with the Appellate Practice Act, strive to review each asserted error supported in the brief by argument and citation of authority. See OCGA § 5-6-48 (b). Byron should not be penalized for the transgressions of appointed counsel.

2. Turning to the merits of Byron’s appeal, the evidence, viewed in a light most favorable to support the jury’s verdict, shows as follows. The victim in this case is Robert Miley, who at the time of the offenses was working as a clerk at the Dixie Station convenience store in Cook County, Georgia. At approximately 2:30 one morning during Miley’s shift, he was emptying a mop bucket when Byron and two companions, Reno Byron and Barry Morrison, entered the store. When Miley looked to see who came in, Nathaniel Byron struck him in the back of the head with a heavy, flat iron. According to Miley, he fell to his knees, and when he got back to his feet and turned around, Nathaniel Byron struck him in the mouth. The second blow knocked out four of Miley’s teeth. After attempting to strike Miley a third time with the iron, Nathaniel Byron and Reno Byron dragged him to the front of the store where they threatened to hit him again if he did not open the register. Miley complied with the demand, whereupon Nathaniel Byron and his two companions took the money from the register and a video recorder containing a surveillance tape and left the store.

At trial, Miley testified that he knew Nathaniel Byron was the individual who struck him because Byron came into the store every night and in fact had visited the store earlier that evening. Although Miley did not know Byron’s name, he identified Byron in a photographic lineup presented to him after the incident and also identified him at trial.

Despite Byron’s failure to present any argument supporting his challenge to the sufficiency of the evidence, we have reviewed the transcript and find that in light of the State’s eyewitness testimony identifying Byron as the perpetrator who struck Miley during the course of the robbery, there was sufficient evidence for the jury to find him guilty beyond a reasonable doubt of armed robbery and aggravated assault. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Palmer v. State, 219 Ga. App. 819, 820 (1) (467 SE2d 6) (1996).

3. As stated in Division 2, one of the reasons the victim was able to identify Byron was because Byron had visited the store earlier that evening. The transcript reveals that this earlier visit to the Dixie Station was recorded on a surveillance tape. According to the assistant district attorney, although the victim provided the investigating officer with the tape well before trial, the State learned of it only the day before trial. And, once the State viewed the tape, the assistant district attorney immediately notified Byron’s counsel who viewed it later that day. Byron moved for a continuance arguing that the tape presented newly discovered evidence of the victim using racial epithets. The trial court denied Byron’s motion and asked defense counsel whether he wanted the tape excluded from evidence. Byron’s counsel stated that he wanted the tape excluded, and the trial court ruled accordingly and further prohibited any mention of the tape at trial. Byron asserts that the trial court erred in denying his motion for a continuance to investigate the information revealed on the tape. We disagree.

“All applications for continuance are addressed to the sound legal discretion of the court and shall be granted or refused as the ends of justice may require. [OCGA § 17-8-22.]” Lakes v. State, 244 Ga. 217, 218 (259 SE2d 469) (1979). In this case, Byron did not clearly show why he needed a continuance. Even if we assume that Byron wanted to develop evidence showing the victim harbored racial prejudices, Byron did not show the trial court how he intended to acquire such evidence or why he needed additional time. Considering the trial court’s exclusion of the tape at Byron’s request and the lack of clarity in Byron’s motion for continuance, “[t]he record at best shows only speculative harm to [Byron] and is insufficient to show an abuse of discretion by the trial court. . . .” Id.

4. Byron also asserts that the trial court erred in failing to order a mistrial when the victim mentioned the surveillance tape during his testimony. We disagree. A trial court has broad discretion in ruling on a motion for mistrial, and such a ruling will not be overturned on appeal absent a manifest abuse of discretion. Eagle v. State, 264 Ga. 1, 2 (2) (440 SE2d 2) (1994).

In this case, the transcript shows that the victim mentioned the tape during cross-examination by Byron’s counsel. Specifically, counsel was examining the victim about the description of people who entered the store with Byron earlier in the evening and asked him whether he could describe what one of the individuals was wearing. The victim answered: ‘Your guess is as good as mine, because I didn’t — I just pay attention to when they come in the store. Three days later, I interviewed a tape, watch it, the surveillance tapes; make sure there ain’t no shop lifting going on; and then that’s it. In other words, after that 17 months ago or until now, I couldn’t tell you hardly [sic].”

Byron does not show, and it is unclear from the transcript, how he was prejudiced by the reference to the surveillance tape. Moreover, it appears that the reference was the result of a nonresponsive answer to defense counsel’s question, and not a consequence of any action by the State. Under these circumstances, we find no abuse of the trial court’s discretion in the denial of Byron’s motion for mistrial. See id.

5. Byron, who is African-American, asserts that the State engaged in purposeful discrimination in the exercise of its peremptory strikes and that the trial court therefore erred in denying his motion based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

“The trial court’s decision [on a Batson motion] rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citations and punctuation omitted.) Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996).

The transcript shows that the State used all six of its peremptory strikes, and its strike in selecting an alternate juror, against African-American prospective jurors, and that following Byron’s objection, the State explained its strikes. The district attorney explained that he struck four veniremen because they had familial or other relationships with individuals who had been prosecuted for various offenses. The district attorney stated that he struck another prospective juror because she had gone to school with Byron. The district attorney explained that he struck the last prospective juror because he “had some prosecution dealings” with her. Finally, the district attorney struck another African-American when deciding on an alternate juror because while serving on a jury earlier in the week the juror “made faces at the State . . . and [he] did not feel like she would be a good juror. . . .”

Byron asserts on appeal that the State’s proffered explanations were not race-neutral and that the trial court therefore erred in denying his motion. We disagree.

The threshold issue of whether Byron established a prima facie case of discrimination is moot because the State offered purportedly race-neutral reasons for its strikes. See Byers v. State, 212 Ga. App. 110, 112 (2) (441 SE2d 290) (1994). In light of such explanations, we must determine whether the State’s proffered reasons for striking the jurors in question were race-neutral. Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995). Under existing precedent, a race-neutral explanation need not be persuasive, plausible or make sense, but is an explanation “based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race[-]neutral.” (Citations and punctuation omitted.) Id.

Under these guidelines, we are constrained to find that the State’s explanations for all of its strikes were race-neutral. Considering those strikes based on the jurors’ relationships with individuáis who have been in trouble with the law, our Supreme Court has previously found that such a reason is race-neutral. See Hall v. State, 261 Ga. 778, 779 (2) (415 SE2d 158) (1991). We have also held that a juror’s familiarity with a defendant or his family is a race-neutral reason to strike the juror. See Hightower, supra. The prosecutor’s explanation that he did not think another individual would make a good juror because she had earlier “made faces at the State” is a race-neutral ground which, although difficult to understand from the transcript, is best left for judgment by the trial judge who was present and able to judge the credibility and demeanor of both the district attorney and the juror. See Jones v. State, 226 Ga. App. 428, 430 (1) (487 SE2d 62) (1997). The same must be said for the State’s explanation that it struck a juror who had prior dealings with the district attorney’s office. See id.; Hightower, supra.

“Because the State’s given reasons were sufficient to rebut [Byron’s] prima facie showing of racial discrimination, the central issue was properly framed for the trial court’s determination: whether [Byron] carried his burden of showing the proffered reasons were merely designed to ‘cover up’ purposeful racial discrimination. [Cits.]” Jones, supra at 430 (1). Although Byron pointed out that the State did not strike a white juror who also went to school with him, “the trial court decided that issue of fact in favor of the State, and under our deferential standard of review, we cannot say the trial court’s determination was clearly erroneous. [Cit.]” Id. This is true even though we may have reached a different conclusion from that of the trial judge.

6. In two enumerations of error, Byron asserts that the trial court erred in failing to enforce his subpoenas for the presence of two witnesses, co-defendants Reno Byron and Barry Morrison. According to Byron, approximately one week before trial he learned that Reno Byron would be tried separately, and he therefore requested the issuance of subpoenas for both Reno Byron and Morrison.

Although Byron had a constitutional right to compulsory process to obtain the testimony of his witnesses, it was his duty to ensure the presence of such witnesses by issuance of subpoenas. See Ga. Const, of 1983, Art. I, Sec. I, Par. XIV; Kegler v. State, 267 Ga. 147, 148 (4) (475 SE2d 593) (1996); Fowler v. State, 195 Ga. App. 874 (2) (395 SE2d 33) (1990). Moreover, in deciding whether to enforce a subpoena, a trial court must consider “whether under the circumstances of each case the subpoena was served within a reasonable time, but in any event not less than 24 hours prior to the time that appearance thereunder was required.” OCGA § 24-10-25 (a).

The record does not show that Byron’s requested subpoenas were served more than 24 hours prior to trial. In fact, the record does not contain any evidence of the subpoenas or returns of service. Rather, it appears from colloquy between Byron’s counsel and the trial judge that counsel requested subpoenas only the day prior to commencement of Byron’s trial. Considering that the trial proceedings commenced at 9:00 a.m., it is highly unlikely that the requested subpoenas were served more than 24 hours prior to the trial. Accordingly, inasmuch as Byron has not shown that the subpoenas were issued in a timely manner, the trial court did not err in failing to enforce the subpoenas. See Fowler, supra.

7. We find no merit in Byron’s assertion that he was denied a speedy trial. Byron filed his request for a speedy trial on July 8,1996. Byron’s trial commenced in Cook County Superior Court on February 21, 1997. OCGA § 17-7-170 (b) requires that a person be tried within the term of court in which a demand for trial is made or at the next succeeding regular court term. Cook County has two terms of court which commence on the second Monday in January and July. OCGA § 15-6-3 (1) (D). Byron’s request was made on the first day of the July 1996 term and he was tried at the next succeeding term. Accordingly, we find no error.

8. In four enumerations of error, Byron asserts that the trial court erred in admitting evidence of a photographic lineup and the victim’s in-court identification of him. However, in his brief, Byron only incoherently addresses these assertions. We will, to the extent possible, address Byron’s apparent concerns.

The facts relevant to these assertions show that on the day after the assault and robbery, the victim provided the investigating officer with a description of his assailant. Based on this description, the officer compiled a photographic lineup and presented it to the victim approximately three weeks later. According to the officer, the victim pointed to Byron as the individual who committed the offenses. After the lineup, police obtained a warrant and arrested Byron for the offenses. It appears that at some point following Byron’s arrest, the victim saw Byron either at the jail or the courthouse and told the investigating officer “that’s the one that hit me in the head. . . .” Finally, the victim positively identified Byron at trial.

Byron first seems to contend that the trial court should have excluded evidence of the lineup at trial because he was provided with a copy of the lineup only on the morning of trial. Byron does not show, however, that he ever objected to the lineup being admitted into evidence on this ground. Accordingly, this contention presents nothing for review. See Thomason v. State, 215 Ga. App. 189, 190 (4) (450 SE2d 283) (1994).

Byron also argues that the victim’s in-court identification should have been excluded because he did not have an attorney present when the victim identified him in the photographic lineup or when the victim subsequently pointed him out to the investigating officer. Pretermitting a determination of the propriety of these pretrial identifications, we find that because the victim’s in-court identification had an independent origin in his numerous prior encounters with Byron and his ability to view him in the convenience store during the incident, it was properly admitted by the trial court. See Montgomery v. State, 210 Ga. App. 147, 149 (3) (b) (435 SE2d 510) (1993).

9. Finally, Byron asserts that the trial court erred in failing to grant a mistrial when the State, through the investigating officer’s testimony, put Byron’s character into evidence.

The transcript reveals, however, that the testimony was elicited by Byron’s counsel while cross-examining the investigating officer about the description of Byron the officer was provided. Counsel asked the officer: “you say the description that was given to you for him was a black male, tall, about 160 pounds, is that right? A. Yes, Sir. Q. Do you know how much this gentleman weighs? A. Well, at the time — he’s been here about two years now, so, at the time, he was pretty close to 160 pounds.” Following this response, Byron moved for a mistrial on the ground that the answer indicated that he had been in jail the previous two years. In making his motion, however, counsel conceded that the officer’s answer “was not responsive to [his] questions.”

Under these circumstances, we find that the trial court did not abuse its discretion in denying Byron’s motion for mistrial. “[A] nonresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue.” Eagle, supra at 2 (2), citing Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988).

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

Decided December 11, 1997.

Jack W. Carter, for appellant.

Robert B. Ellis, Jr., District Attorney, Ellen S. Golden, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A2463.
    WILLIAMS v. AMERICAN CREDIT SERVICES, INC.
    (495 SE2d 121)
   Ruffin, Judge.

American Credit Services, Inc. (“American Credit”) filed a complaint in Gwinnett County State Court seeking to domesticate a foreign judgment it obtained against James K. Williams in New York. The trial court domesticated the judgment after a bench trial, and Williams appealed. For the following reasons, we reverse.

“[Findings of trial courts in nonjury trials ‘shall not be set aside unless clearly erroneous.’ [Cit.] This principle does not apply, however, where it appears that the trial court’s findings and judgment are based on an error of law. [Cit.]” Scott v. Purser Truck Sales, 198 Ga. App. 611, 612 (1) (402 SE2d 354) (1991).

1. Before addressing the merits, we highlight American Credit’s failure to file a response brief on appeal. This omission makes it difficult, if not impossible, for the Court to ascertain what American Credit’s defenses are and accordingly impedes our review.

2. Turning to the merits, we note that a party can domesticate and enforce a foreign judgment in Georgia by following the procedures of the Uniform Enforcement of Foreign Judgments Law (“UEFJL”), OCGA § 9-12-130 et seq. “[This] uniform law provides a summary procedure for endowing a filed foreign judgment with the same effect as a judgment of the [Georgia] court in which it is filed. [Cit.] It is not a new action but merely picks up where it was left off in the state where rendered.” Wright v. Trust Co. Bank, 219 Ga. App. 551 (466 SE2d 74) (1995). A prerequisite for utilizing Georgia’s UEFJL to enforce a foreign judgment is that the foreign state where the judgment was obtained must have adopted the UEFJL in substantially the same form. OCGA § 9-12-138; see P. G. L. & C. C. Employees Credit Union v. Kimball, 221 Ga. App. 108 (470 SE2d 501) (1996). If the foreign state has adopted a substantially similar law, then the party seeking to enforce a judgment in Georgia under the uniform law must file a properly authenticated copy of the foreign judgment with the clerk of any Georgia court of competent jurisdiction. OCGA § 9-12-132. The party must also file with the clerk of court an affidavit showing the name and last known post office address of the judgment debtor and the judgment creditor. OCGA § 9-12-133.

Decided December 11, 1997.

The uniform law, however, does not foreclose a party from proceeding against a judgment debtor via the usual means of filing an action against the debtor. OCGA § 9-12-136. If this latter method is pursued, the party must file the action within five years from when the judgment was obtained or it is barred. OCGA § 9-3-20. This statute of limitation is not applicable to domestication under Georgia’s uniform law previously discussed. Wright, supra at 552.

In the instant case, American Credit obtained a New York judgment of $4,624.78 on May 27, 1988, against Williams for the nonpayment of a contractual obligation. Approximately eight years later, in September 1996, American Credit filed a “COMPLAINT (Foreign Judgment)” in Gwinnett County State Court seeking to have the foreign judgment domesticated and enforced against Williams. American Credit did not aver in the complaint that it was proceeding under Georgia’s UEFJL as opposed to filing an action in accordance with OCGA § 9-3-20.

In his answer to the complaint, Williams asserted, inter alia, the defense that American Credit’s complaint was time-barred. In domesticating the judgment, the trial court did not address the statute of limitation defense or reference the UEFJL, but merely stated that good cause existed for granting the relief. The trial court awarded American Credit $4,624.78 plus prejudgment interest as allowed by New York law, along with future interest. .

While. New York has passed laws similar to Georgia’s UEFJL, see NY CPLR § 5401 et seq., and American Credit could have proceeded under OCGA § 9-12-130 et seq., there is no indication in the record that American Credit attempted to so proceed. American Credit did not file the authenticated foreign judgment and the corresponding affidavit with the clerk of court as required by OCGA §§ 9-12-132 and 9-12-133. Rather, it filed a complaint seeking to enforce the judgment without notifying the trial court of its intent to rely on Georgia’s UEFJL. Accordingly, we conclude that this was an action to enforce a judgment and not an attempt to proceed under the uniform law. Therefore, because the action was filed more than five years after the judgment was entered, it was time-barred pursuant to OCGA § 9-3-20, and the trial court erred in not dismissing the action.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.

Benjamin W. Beazley, for appellant.

James B. Johnson, Jr., for appellee.


text:
    A97A2478.
    MONCUS v. THE STATE.
    (495 SE2d 118)
   Ruffin, Judge.

A jury found William Moncus guilty of theft by shoplifting. Mon-cus appeals, challenging the sufficiency of the evidence and the trial court’s refusal to give his requested charge concerning the value of the property allegedly stolen. For reasons which follow, we affirm.

1. “On appeal of a guilty verdict, [Moncus] no longer enjoys a presumption of innocence, for the jury has heard the evidence and judged its weight and the credibility of witnesses; the evidence is construed so as to uphold the jury’s verdict, and on appeal we do not redetermine the factual issues decided by the jury nor the weight of the evidence, but we only determine its sufficiency under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. [Cit.]” Winn v. State, 215 Ga. App. 120 (1) (449 SE2d 667) (1994).

Viewed in this light, the evidence shows that on the day of the theft Moncus entered the Ulta 3 store in Fayette County and walked to the fragrance aisle. Donna Reinhardt, the store manager, was in her office at the time and observed Moncus through a two-way mirror. Reinhardt testified that after sampling some fragrances, Moncus took two bottles of perfume from the shelf and tucked them into his pants. As Moncus walked through a store exit, an alarm sounded and Reinhardt asked him to step back into the store. When Moncus ignored her, Reinhardt instructed her assistant to call 911. Reinhardt observed Moncus until police arrived, and she stated that “once [Moncus] saw the police coming and he saw that I ran out the store he took his shirt off, took the fragrance out of his pants, and threw it on the ground, and started to walk away.” Police apprehended Mon-cus and retrieved the two bottles of perfume, and Reinhardt positively identified him as the individual who took the perfume.

At trial, Reinhardt identified photographs of the bottles of perfume taken by Moncus. She stated that one was a 3.3 fluid ounce bottle of Elizabeth Taylor White Diamonds perfume that is sold at Ulta 3 and valued at $57. Reinhardt testified that the other perfume was a 1.7 fluid ounce bottle of Christian Dior Poison, which was also sold at Ulta 3 and valued at $50. Reinhardt further stated that security tags were on both bottles, and that if taken out of the store without being scanned by the register, the tags would trigger an alarm. There was no doubt in Reinhardt’s mind that Moncus was the individual who took the two bottles of perfume out of the store and triggered the alarm.

Moncus argues that the foregoing evidence was insufficient because (a) there was no competent evidence showing the value of the merchandise taken, and (b) Reinhardt’s testimony was only circumstantial evidence of guilt and conflicted with other evidence presented at trial. We find no merit in these contentions.

(a) We note initially, that even if the State had failed to present evidence showing that the value of the items taken exceeded $100, such failure would “not have entitled [Moncus] to an acquittal but would have gone merely to the issue of punishment. See OCGA § 16-8-14 (b).” Kowalczk v. State, 195 Ga. App. 714, 715 (2) (394 SE2d 594) (1990). The evidence presented was, however, sufficient to prove value. “Retail value or price is the standard to be used in establishing value in theft by taking from retail establishments. [Cits.]” Grice v. State, 199 Ga. App. 829 (2) (406 SE2d 262) (1991). See also OCGA § 16-8-14 (c). Although under OCGA § 16-8-14 (c) the price tag of the merchandise taken or a copy thereof can be used to prove value, anyone “may testify as to value if he has an opportunity to form a correct opinion. [OCGA § 24-9-66.] [Cit.]” Ragsdale v. State, 170 Ga. App. 448, 449 (317 SE2d 288) (1984). See also Grice, supra. In previous cases we have found that store employees who were familiar with the items taken were competent to testify as to the value of those items. See id.; Kowalczk, supra; Green v. State, 177 Ga. App. 179, 180 (2) (338 SE2d 761) (1985).

In this case, the evidence showed that Reinhardt was the store manager. As such, Reinhardt would have had an opportunity to know the price of the items sold in the store. Her identification of the products at trial showed that Ulta 3 sold the stolen perfume, that she was familiar with both bottles and that she in fact knew the value of the merchandise. Although Reinhardt did not specifically use the word “retail” in stating the value, she gave the value in response to a question posed about the “value [that] was listed on both of these items at the time.” Under these circumstances, and considering our duty to view the evidence in a light most favorable to the jury’s verdict, we find Reinhardt was competent to testify to the retail value of the stolen merchandise and that her testimony provided such value evidence. See Winn, supra; Green, supra; Kowalczk, supra; Grice, supra. Furthermore, although Moncus had an opportunity to cross-examine Reinhardt concerning the value of the perfume, he chose not to do so. See id. at 829. Accordingly, this enumeration of error is without merit. Id.

(b) We also find no merit in Moncus’ other contentions that the evidence was insufficient because Reinhardt’s testimony was only circumstantial evidence of guilt and because it conflicted with other evidence presented at trial. First, Reinhardt’s testimony, in which she unequivocally stated that she saw Moncus take the merchandise, was not circumstantial but direct evidence of his guilt. See Stubbs v. State, 265 Ga. 883, 885 (2) (463 SE2d 686) (1995) (eyewitness testimony that he saw defendant commit the crime is direct evidence of guilt). Second, the issue of whether Reinhardt’s testimony concerning the length of Moncus’ hair at the time of the offense conflicted with other evidence produced at trial concerning his hair length was a factual issue the jury appropriately resolved on its own. See Winn, supra.

Decided December 11, 1997.

Patricia A. Buttaro, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

Accordingly, we find the evidence was sufficient for any rational trier of fact to find Moncus guilty beyond a reasonable doubt of theft by taking and that there was sufficient evidence of value to support the trial court’s felony sentencing. See id.; Jackson v. Virginia, supra; Kowalczk, supra.

2. The trial court did not err in failing to charge the jury concerning the value of the stolen merchandise. “It is only if there is a factual issue as to whether the value is greater than $100 that the jury must determine value in order to assist the court in determining the appropriate sentence. [Cit.] In the instant case, the uncontradicted testimony of the store manager established the value of [the stolen merchandise] at more than $100.” Green, supra at 181. Accordingly, we find no error. See id.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Birdsong, Presiding Judge.

text:
    A98A0245.
    CASILLAS v. THE STATE.
    (494 SE2d 760)
   Birdsong, Presiding Judge.

Joe M. Casillas appeals from the order of the superior court denying his motion for appeal bond/supersedeas bond. For prior appellate history of this case, see generally Casillas v. State, 267 Ga. 541 (480 SE2d 571).

Appellant was indicted for murder, felony murder, involuntary manslaughter and possession of a firearm during the commission of a crime; he was convicted of felony involuntary manslaughter by causing death by an unlawful act, to wit: the misdemeanor offense of reckless conduct or pointing pistol at another (OCGA § 16-5-3 (a)), and of the felony offense of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)). He was sentenced to ten years with five to serve on the involuntary manslaughter conviction (five years probated) and an additional five years probation to be served consecutively on the firearm possession conviction.

Appellant moved for a new trial and for an appeal bond. An unreported hearing was held on May 2, 1997, at the conclusion of which appellant’s motion for appeal bond was denied; however, the written order denying bond was not issued until July 24, 1997. Held:

“The burden of seeking a stay of execution and a release on bond is upon the applicant. Thus, under [Birge v. State, 238 Ga. 88 (230 SE2d 895)], the trial court should not grant bond pending appeal unless the applicant presents sufficient information, evidence, or argument to convince the trial court that an affirmative response is not appropriate as to any of the Birge criteria. Also, the trial court may consider the evidence adduced at trial that is pertinent to this determination.” Jarrett v. State, 222 Ga. App. 521, 522 (474 SE2d 702). Birge, supra, requires the trial court to address four questions when determining whether to allow an appeal bond: (a) Is there a substantial risk the applicant will flee? (b) Is there a substantial risk the applicant will pose a danger to others or to the community? (c) Is there a substantial risk the applicant will intimidate witnesses or otherwise interfere with the administration of justice? And (d) does it appear the appeal was frivolous or was taken only for purposes of delay? An affirmative answer to any of these questions will support the trial court’s denial of an appeal bond. Moore v. State, 151 Ga. App. 413, 414, n. 1 (260 SE2d 350). In making this fresh determination, the trial court should take into account the nature of the crime and length of sentence imposed as well as the factors relevant to pretrial release. Birge, supra at 90.

In the absence of a transcript of an appeal bond motion hearing, the ruling of the trial court denying bond must be presumed to be correct. Moore, supra at 415. “The . . . bond hearing was not recorded for reasons not disclosed in the record. Without a transcript of the . . . hearing or a statutorily authorized substitute, this Court must assume that the judgment below was correct.” Womack v. State, 223 Ga. App. 82, 84-85 (476 SE2d 767). “It is the primary responsibility of the appellant to perfect the record on appeal”; this appellant has failed to do. Id. at 85.

Additionally, review of the record reveals that appellant is no longer on active duty with the Ranger Battalion at Hunter Army Airfield at Savannah, Georgia. Rather, at the time of his second trial, appellant and his wife and children lived in San Antonio, Texas, and appellant was working for a security company installing alarms in various buildings and homes. Considering the length of sentence which was imposed, the nature of the two offenses for which sentence was imposed, and the fact that appellant no longer resides within the jurisdiction of the courts of this state, the trial court could, in the exercise of its sound discretion, determine that appellant did not satisfy all the Birge factors necessary for the granting of his motion for an appeal bond. Thus, there exists some evidence of record which would support the trial court’s denial of appellant’s motion. Compare Lindo v. State, 218 Ga. App. 756, 759 (4) (463 SE2d 148); Williford v. State, 218 Ga. App. 522, 524 (462 SE2d 632).

Decided December 11, 1997.

Gregory N. Crawford, for appellant.

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

Appellant’s enumeration of error is without merit.

Judgment affirmed.

Johnson and Smith, JJ, concur.


text:
    A97A0933.
    SAFETY FIRE COMMISSIONER v. U.S.A. GAS, INC.
    (494 SE2d 706)
   Birdsong, Presiding Judge.

After the grant of a discretionary appeal under OCGA § 5-6-35 (a) (1), the Office of the Safety Fire Commissioner, a departmental subdivision of the State of Georgia, and John W. Oxendine, the Safety Fire Commissioner, and Jim Wilson, the Acting Fire Marshal and Chief Assistant Fire Marshal, in their official capacities, appeal the decision of the superior court reversing an order of the Office of Safety Fire Commissioner denying U.S.A. Gas, Inc. a license as a liquified petroleum gas bulk distributor.

In late December 1994, U.S.A. Gas applied for a license to maintain a liquified petroleum gas bulk distribution facility just outside the Dalton city limits in Whitfield County. An engineer with the Safety Fire Commissioner’s office reviewed the U.S.A. Gas site plans and indicated that before a license could be issued U.S.A. Gas would have to obtain a fire safety analysis from the local fire department, demonstrate that there was a firm foundation for the gas storage tanks, and the site would have to pass final inspection.

Subsequently, an assistant State Fire Marshal inspected the project site and discovered that the tank was to be built on fill dirt near a creek. For that reason, the assistant fire marshal requested documentation that the foundation would be firm enough to support a 30,000 gallon container. U.S.A. Gas submitted a soil compaction study for that purpose, but the Commissioner’s office found the study to be inadequate because it contained no indication of the soil bearing capacity or a calculation of the foundation and piers.

U.S.A. Gas later submitted additional materials stamped by an engineer, but the Safety Fire Commissioner’s office again found it deficient for not relating the soil bearing capacity of the site to the design load of the tank. U.S.A. Gas’s engineer believed the soil bearing capacity at the project site to be adequate for the storage tank, but conceded that no comprehensive soil compaction tests had been performed.

With regard to the requisite fire safety analysis, the Whitfield County Fire Department chief observed that since the project site was in a heavily populated area, an explosion would likely result in substantial damage to persons and property. The Chief indicated that the Whitfield County Fire Department could respond to an alarm at the project within ten to twelve minutes, but a large liquified petroleum tank can explode within ten minutes’ exposure to fire. Although the City of Dalton Fire Department was closer to the site and could respond in less time and although it had an informal agreement to assist the county fire department, it was not obligated to assist the county in fighting a fire at the site.

Following a hearing on the matter, the Safety Fire Commissioner denied the license based on fire and safety concerns. U.S.A. Gas appealed the matter to the superior court, which found that the denial of the license was not supported by the evidence; found the Commissioner’s action to be a nullity and unsupported by any evidence. The superior court then ordered immediate issuance of a license to U.S.A. Gas. This appeal followed. Held:

1. The superior court considered the Commissioner’s decision to be a nullity, because the proper procedure would have been for the State Fire Marshal to make the initial decision on U.S.A. Gas’s application under OCGA § 10-1-266, with the right of appeal to the Safety Fire Commissioner under OCGA § 25-2-10. It appears, however, that the Safety Fire Commissioner decided the application initially, because at the time there was no State Fire Marshal. The Safety Fire Commissioner contends that under the circumstances, inasmuch as the Code authorizes the State Fire Marshal to make the initial decision on a license application but does not make that authority exclusive, the Commissioner has full supervision and control over the State Fire Marshal under OCGA § 25-2-3, and the Commissioner ultimately would make the final administrative decision if appealed under OCGA § 25-2-10, then the Commissioner was authorized to make the initial decision on the license application when there is no State Fire Marshal. See OCGA §§ 25-2-3; 25-2-4; 25-2-5; 25-2-16. Under the circumstances of this case, we cannot agree with the trial court. In the absence of the State Fire Marshal the Commissioner was authorized to act on this application. If the trial court’s reason-ings were correct, no business could be transacted by the State Fire Marshal’s office in the absence of an appointed State Fire Marshal.

2. We also find that the superior court improperly substituted its own judgment for that of the agency in this case. See OCGA § 50-13-19 (h); Sawyer v. Reheis, 213 Ga. App. 727, 728-729 (445 SE2d 837). On appeal, the superior court must affirm an administrative determination where it is supported by “any evidence.” The presence of conflicting evidence satisfies the “any evidence” test. Bowman v. Palmour, 209 Ga. App. 270 (433 SE2d 380). In the instant case, the fire safety analysis by the Whitfield County Fire Department and the lack of any comprehensive soil compaction tests constituted evidence supporting the Commissioner’s findings that the proposed facility did not meet the precautions reasonable and practical to avoid injury to persons from explosion or fire. Although there is evidence supporting the conclusion reached by the superior court, there is other evidence supporting the denial of the license. For example, the evidence is not conclusive on the load bearing capacity of the sub-surface fill dirt on which the tank would rest and witnesses who otherwise testified on behalf of U.S.A. Gas also testified about problems in the fire safety analysis.

Further, even if we were to agree with the superior court and U.S.A. Gas that the procedures employed by the Commissioner were impermissibly flawed, we cannot agree that the proper remedy would be to order the issuance of the license.

3. We also find no support for the trial court’s concern about the requirement for a written fire safety analysis. Although it appears that this application was the first time in which a written analysis was required, a fire safety analysis was required by Safety Fire Commissioner Rule 120-3-16.06. We can perceive no harm in requiring that the report be reduced to writing. Indeed, it is hard to comprehend, given the nature of these applications, how an oral report should suffice.

4. We also cannot agree with the trial court’s conclusion that OCGA § 25-2-16 (b) is unreasonably vague. In reaching this conclusion the trial court apparently did not consider the rules promulgated by the Safety Fire Commission to implement this Code section as authorized by OCGA §§ 25-2-16; 25-2-4. See Rules of the Safety Fire Commissioner, Chapter 120-3-16. Such a delegation to an administrative agency is authorized. Brown v. State Bd. of Examiners, 190 Ga. App. 311 (378 SE2d 718).

5. We also do not find that either the change in the administrative law judge or original administrative law judge’s failure to issue a decision within 30 days as required by OCGA § 50-13-17 (c) warranted the reversal of the Commissioner’s decision. We find that the change in the administrative law judge did not prejudice the substantial rights of U.S.A. Gas (OCGA § 50-13-19 (h)) and that the 30-day requirement is directory, not mandatory. Collins v. Birchfield, 214 Ga. App. 144, 146-147 (447 SE2d 38). Moreover, as the denial of the application is otherwise supported by the record, we do not find the opposition of the neighborhood to have any significance.

Decided November 26, 1997

Reconsideration denied December 12, 1997

Thurbert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Alan Gantzhorn, Senior Assistant Attorney General, Thomas K. Bond, Assistant Attorney General, for appellant.

David G. Archer, Mary F. McCord, for appellee.

Accordingly, the superior court erred by overturning the decision of the Commissioner and the judgment of the superior court is reversed.

Judgment reversed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge. Judge Harold R. Banke,

text:
    A97A2061.
    BIRDWELL v. THE STATE.
    (494 SE2d 699)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with four counts of child molestation for acts committed against his stepgranddaughter, T. W, then age 11, at defendant’s residence in Barrow County, Georgia. According to the victim, she awakened on a love seat, to find defendant “had his hand under [her] shirt and under [her] bra.” Another time, defendant was “laying on the couch with [the victim], and he had his hand inside [her] panties; and he was like rubbing it.” After a funeral for the victim’s uncle, defendant again felt the victim’s genitals, “when [they] were on the loveseat. . . .” The last time, she awoke to find defendant “laying beside [her]. And he had his hand in — under [the victim’s] clothes, and he had . . . his hand on [her] hand; and it was inside of his underwear.” Defendant was “making [the victim] rub like around it in a circle.” She confirmed this was “[h]is private part.”

Linda Sharon Skinner, defendant’s former wife, related defendant’s statement wherein he told Skinner “he had wanted to tell [her] so many times [about T. W.’s accusations], but he didn’t know how. . . . He told [Skinner] that it only happened once [and that] he didn’t know why he did it.” Deputy Ray Brown of the Barrow County Sheriff’s Office identified an audiotape he made of an interview with defendant, wherein defendant admitted that he once “awoke and his hand was on [the victim’s] vagina. . . .” Phyllis Marsteller, an investigator with the Jackson County Department of Family & Children Services, interviewed the victim, T. W. Marsteller started out by asking T. W. to say, “in her own words if she knew why [Marsteller] was there. And [T. W.’s] response to that was that [Marsteller] was there to . . . help her make him stop doing what he was doing.” By “him,” T. W. meant defendant.

The jury found defendant guilty as charged on each count. Defendant’s motion for new trial was denied, and he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdicts. Held:

1. The denial of defendant’s motion for mistrial is enumerated as error.

The trial court had granted defendant’s motion “to exclude any reference to [a] polygraph . . .” administered to defendant. But during defendant’s cross-examination of Special Agent Paul Loggins of the Georgia Bureau of Investigation, the following transpired: “[DEFENSE COUNSEL]: All right. And he [defendant] confessed in that [T. W.] was asleep in the love seat by him and that he realized that he had his hand inside her panties rubbing her vagina; is that right? [SPECIAL AGENT LOGGINS]: That’s correct. [DEFENSE COUNSEL]: So at that point [defendant] did not even tell you that he knew exactly what [T. W.] was saying he had done? [SPECIAL AGENT LOGGINS]: I had made [defendant] aware of what the allegation was and what you’re reading from is the polygraph report which. . . .” Whereupon defendant moved for a mistrial. The trial court concluded that a mistrial was not demanded because the witness was responding to cross-examination and because the results of the polygraph were never mentioned and denied defendant’s motion. Defendant declined the offer of curative instructions. The trial court instructed the witness “not to use the word polygraph again.”

This recitation from the record reveals that the offending reference to defendant’s polygraph came during defendant’s cross-examination and not during the State’s case-in-chief. Consequently, the State has not violated the grant of defendant’s motion in limine to exclude reference to the polygraph. Rather, “ ‘error, if any, was self-induced and provides no basis for reversal. Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).’ Fitzgerald v. State, 193 Ga. App. 76, 77 (7), 78 (386 SE2d 914). Moreover, in the case sub judice, defendant declined the trial court’s offer of curative instructions. ‘We find no error. See Riley v. State, 181 Ga. App. 667, 669 (2) (353 SE2d 598) (1987).’ Id. at 78 (8).” Tucker v. State, 225 Ga. App. 757, 758 (2) (484 SE2d 793).

2. Next, defendant contends the trial court erred in overruling another motion for mistrial made when the investigating detective allegedly paraphrased a portion of defendant’s pre-trial statement thereby misquoting defendant regarding criminal intent.

As Deputy Brown played an audiotape for the jury of his interview with defendant the following transpired: “[STATE’S ATTORNEY]: That portion of the tape, what exactly did the Defendant say . . . that he had done? [DEPUTY BROWN]: The last portion there? [STATE’S ATTORNEY]: Yes, sir. [DEPUTY BROWN]: He stated he guessed that he was caressing her. (AUDIOTAPE CONTINUED TO PLAY.) . . . [STATE’S ATTORNEY]: That last statement that he made, do you recall what it was that he said he wanted to do? [DEPUTY BROWN]: He basically was stating that he wanted to — he wanted to endure it himself. He didn’t want nobody else to — basically take the blame himself.” Whereupon, defendant moved for a mistrial on the grounds that Deputy Brown’s summarization “constitutes a statement that [the defense had] not been provided for this trial . . . and further [because] the officer is saying basically this is what he said whereas [the State’s attorney’s] question was what did he say.” The State’s attorney replied he “wanted him to clarify what it was the Defendant had said there.” The trial court overruled the motion.

On appeal, defendant argues a mistrial was demanded, relying on the authority of Mobley v. State, 262 Ga. 808 (426 SE2d 150). We disagree. “Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal ‘unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial. . . .’ Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982).” Cowards v. State, 266 Ga. 191, 193 (3), 194 (3) (c) (465 SE2d 677).

In Mobley v. State, 262 Ga. 808 (1), supra, the Supreme Court of Georgia affirmed the denial of a plea of double jeopardy following the grant of a mistrial at the behest of the defendant in a capital murder trial. In Mobley, “Investigator Head, while purportedly recounting verbatim the oral confession which [defendant] Mobley made before his written confession, testified that Mobley stated, ‘Well, (the victim) could identify me, he saw me, he could identify me, and I knew at that point I had to kill him.’ That quote was not part of the written statement . . . provided to defense counsel.” Id. “The next day, [Investigator] Head testified outside the presence of the jury that the quote attributed to [defendant] Mobley had been Head’s interpretation of [a] portion of Mobley’s written confession.” Id. at 809. In Mobley, the trial court found “the quote made by [Investigator] Head and attributed to [defendant] Mobley had no basis in Mobley’s written statement. . . .” Id. The Supreme Court stated that “[t]he state’s conduct was properly penalized by the grant of a mistrial.” Id. at 810.

In the case sub judice, Deputy Brown was not purporting to relate verbatim an oral confession. Rather, as a participant, he was asked to clarify the audiotape replication of defendant’s recorded statement. In our view, the trial court correctly determined that the question whether there was a material variance between the audiotape introduced as evidence and the written transcript provided to the defense was a matter for the jury to determine. The answer of Deputy Brown, that defendant appeared to want to take the blame himself, does not amount to the sole evidence of defendant’s disputed specific criminal intent, as did the testimony of Investigator Head in Mobley v. State, 262 Ga. 808 (1), supra, nor does Deputy Brown’s answer usurp the province of the jury. We find no need for a mistrial in order to preserve defendant’s right to a fair trial. Consequently, we find no abuse of discretion in the trial court’s refusal to grant a mistrial in this case. Langham v. State, 263 Ga. 750, 751 (2) (438 SE2d 623).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur specially.

Judge Harold R. Banke,

concurring specially.

I concur specially in Division 1 because the State’s witness, a Georgia Bureau of Investigation polygrapher, clearly violated the court’s order excluding any reference to the polygraph by gratuitously injecting the issue into the case in an unresponsive answer on cross-examination. Nothing in the question posed to the polygrapher elicited the reference to the polygraph examination. The fact that the witness was a trained law enforcement agent who had been informed on the record that the polygraph evidence would be excluded at trial renders the error even more egregious. See Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978) (reversing denial of motion for mistrial asserted after the State’s witness placed the defendant’s character in issue with hearsay).

Nothing in the record supports the majority’s finding that the error was self-induced. Nor should we fault Birdwell for declining a curative instruction which would only have brought more attention to the fact that there was a polygraph which was not used. Nevertheless, the overwhelming evidence of guilt, including Birdwell’s own admissions both before and during trial, convinces me that the error was harmless beyond a reasonable doubt. Compare Ochle v. State, 218 Ga. App. 69, 72-73 (4) (459 SE2d 560) (1995).

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

Decided November 25, 1997

Reconsideration denied December 12, 1997

Thompson, Fox, Chandler, Homans & Hicks, Joseph A. Homans, for appellant.

Timothy G. Madison, District Attorney, Sean P. Dolan, Robin R. Riggs, Assistant District Attorneys, for appellee.


author: Ruffin, Judge.'

text:
    A97A1762.
    DUMAS v. TRIPPS OF NORTH CAROLINA, INC.
    (495 SE2d 129)
   Ruffin, Judge.'

Sandra Lee Dumas slipped and fell on a patch of ice as she was exiting her car in the parking lot of a restaurant owned and operated by Tripps of North Carolina, Inc. d/b/a T. K. Tripps (“Tripps”). Dumas sued Tripps for her injuries and the trial court granted Tripps summary judgment. Dumas appealed, and for the following reasons, we reverse.

“It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. [Cit.] This requires a de novo review of the evidence.” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Viewed in a light most favorable to Dumas, the nonmoving party, the evidence shows that at approximately 9:30 p.m. on January 22, 1994, Dumas drove her husband to Tripps to eat with family and friends. It was a cold but clear day. There had been no snow or precipitation during the week prior to that evening. Dumas pulled into a parking space next to a hill and wooded area. Other cars were parked in the vicinity. She opened her car door and attempted to stand up. At which time, she slipped on a patch of ice that had formed from water running from the hill and wooded area. Dumas said that she did not see the ice until after she fell, in part because the area where she parked was dark and had no lighting. Dumas’ husband and her daughter, whom'Dumas was meeting at the restaurant, confirmed Dumas’ statement that the area where Dumas parked was dark, making it more difficult to see the ice covering the asphalt. Dumas admitted, however, that she did not look down at the asphalt before exiting her car.

In support of its motion for summary judgment, Tripps focused solely on Dumas’ alleged failure to exercise ordinary care for her own safety. Tripps presented no evidence regarding its inspection procedures, if any, of the parking lot or the length of time the ice patch had been allowed to exist. The trial court made no findings of fact in granting summary judgment, but simply concluded there was no genuine issue as to any material fact. We disagree.

“ ‘[Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury.’ ” Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). “ ‘[A] knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant’s negligence. [Cit.]’ ” Id. “Therefore, the legal issue in the instant case is whether the evidence, when construed most favorably for [Dumas], demonstrates as a matter of law that [Dumas] did not have knowledge superior or equal to that of [Tripps] of the icy condition or hazard which resulted in the slip and fall. [Cit.]” Id. at 450-451.

1. We find that a jury question remains as to whether Dumas had superior or equal knowledge of the ice and whether she failed to exercise ordinary care for her own safety. There had been no snow or rain at any time during the preceding week, so there was no apparent reason for Dumas to expect ice to have formed on Tripps’ parking lot. There is no evidence that prior to the fall she saw water flowing down the hill. Nor is there evidence that Dumas noticed ice or any substance on the asphalt as she pulled into the parking lot and then the parking space. However, there is evidence that the ice was not clearly visible given the time of day and the lighting in the lot.

In support of its position that she did not exercise ordinary care for her safety, Tripps highlights Dumas’ statement that she did not look down at the asphalt before stepping out of the car. “ ‘It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way.’ ” Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 240-241 (396 SE2d 42) (1990). However, “an invitee’s failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee’s admission that she did not look at the site on which she subsequently placed her foot. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Robinson v. Kroger Co., 268 Ga. 735 (472 SE2d 474) (1997).

While Dumas may not have looked directly below her before putting her feet on the asphalt, there is no evidence that the ice was clearly visible and that she would have seen it even had she looked. Nor is there evidence that Dumas noticed something unusual on the asphalt as she was driving into the parking space. If Dumas had no reason to expect ice to be on the ground given the weather conditions and noticed nothing covering the space as she parked, we cannot con-elude as a matter of law that it was unreasonable for her to step out of her car without first inspecting the ground beneath her. Accordingly, a jury question remains concerning whether Dumas failed to exercise ordinary care for her own safety under the circumstances. Summary judgment in favor of Tripps was inappropriate.

2. Questions of fact similarly exist concerning whether the ice had been in existence for a length of time such that Tripps had actual or constructive knowledge of it, and whether Tripps made any efforts to inspect the premises but failed to correct the ice hazard within a reasonable time.

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. “The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. [Cit.] This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. [Cits.]” Robinson, supra at 740.

Tripps argues that because the ice was naturally occurring and had not become an obvious hazard, it had no duty to find and remove it. In support of this position, Tripps relies on Fisher v. HBS Mgmt., 220 Ga. App. 752 (469 SE2d 885) (1996); Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682 (482 SE2d 705) (1997); and Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (416 SE2d 857) (1992). In these cases, the plaintiffs fell on ice after recent ice or snow storms of which the plaintiffs were aware. Summary judgment was appropriate in all three cases because the plaintiffs had actual knowledge of the icy conditions or their constructive knowledge, given the prevailing weather conditions, was equal to that of the property owners. Westbrook, supra at 345-346; Fisher, supra at 752-753; Columbus, supra at 683-684. The instant case is distinguishable as there had been no storms or precipitation and Dumas had no reason to suspect ice in the parking lot.

Moreover, the accumulation of naturally occurring ice does not negate an owner’s duty to exercise ordinary care in inspecting the premises in every circumstance. Ice forming due to inevitable natural forces unaffected by human agency “does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action.” Fincher v. Fox, 107 Ga. App. 695, 698 (1) (131 SE2d 651) (1963). “Liability results only from [an owner’s] failure to exercise ordinary care to make repairs after notice to him of the defective condition coupled with a failure to repair within a reasonable time. [Cit.]” Id.

Decided December 12, 1997.

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellant.

Martin, Snow, Grant & Napier, Jay C. Traynham, Lisa Edwards, for appellee.

Ice forming due to water run-off from a wooded area is naturally occurring, just like ice occurring after a snow storm. Absent evidence that Tripps reasonably inspected the parking lot for defects and that the ice formation was a new defect of which Tripps had no notice or sufficient time to correct, we cannot say as a matter of law that it complied with its duty to business invitees to keep the premises safe.

“[T]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and ... summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson, supra at 748. The evidence in the instant case does not meet this standard, as jury questions remain regarding Tripps’ and Dumas’ knowledge of the ice, whether Dumas failed to exercise ordinary care for her safety, and whether Tripps did not exercise ordinary care for its customers. Accordingly, the trial court erred in granting summary judgment to Tripps.

Judgment reversed.

Birdsong, R J, and Senior Appellate Judge Harold R. Banke concur.


author: ELDRIDGE, Judge.

text:
    A97A2487.
    REED v. THE STATE.
    (495 SE2d 313)
   ELDRIDGE, Judge.

A 1993 contract between the governing authority of Troup County and the governing authority of the City of LaGrange in Troup County permits a Troup County State Court judge to sit as a municipal court judge. Such is proper pursuant to OCGA § 15-7-80. However, an incorrect application of the terms of the statute and the contract has repeatedly created an unclear mingling of these judicial identities during the prosecution of criminal matters. This commingling of identities has provided a basis for an enumeration of error before this Court in four separate cases this year. The state has not bothered to file an appellate brief in any of them as required by Court of Appeals Rule 26 (b). Two cases have been reversed. Poole v. State, 229 Ga. App. 406 (494 SE2d 251) (1997); Calloway v. State, 227 Ga. App. 775 (490 SE2d 521) (1997). We, again, reverse.

The facts as stipulated by the parties and approved by the trial court show that appellant, Rexton D. Reed, was arrested for disorderly conduct under the City Code of LaGrange, § 35-1-5, in that appellant “was observed being loud and boisterous and using profane language at Callaway Stadium [wherein appellant] stated ‘this is bullshit, I bought my mother fucking ticket’ in the presence of others and children.”

An accusation drawn in the State Court of Troup County, 96-S-4254, charged appellant with disorderly conduct in violation of the city ordinance in that appellant did “unlawfully at Callaway Stadium being [sic] loud, boisterous and using abusive language in the presence of others contrary to the laws of said State, the peace, good order and dignity thereof.” At the subsequent bench trial, the state offered testimony of the arresting officer. The prosecuting attorney did not introduce into evidence the municipal ordinance under which appellant was charged.

Appellant moved for a directed verdict based on the sufficiency of the evidence, since the city ordinance was not tendered. The state argued that because the 1993 contract permits a Troup County state court judge to sit as a municipal court judge, “the State Court of Troup County could take judicial notice of the municipal ordinance.” (Emphasis supplied.) The trial judge agreed, and appellant was found guilty of disorderly conduct. The sentencing sheet was signed by the judge, “Troup County State Court.” Two issues raised herein are addressed:

(a) Neither the trial court nor the appellate courts may take judicial notice of the provisions of a municipal ordinance; where such ordinance is relied upon, it must be pleaded and proved in the trial court. Calloway, supra; State v. Fowler, 182 Ga. App. 897 (357 SE2d 329) (1987); Dudley v. State, 161 Ga. App. 310 (1) (287 SE2d 763) (1982). The prosecutor’s failure to introduce the disorderly conduct ordinance under which appellant was charged resulted in a failure of proof, and the evidence was insufficient as a matter of law to warrant appellant’s conviction in the State Court of Troup County for the ordinance violation. Calloway, supra; Woodward v. State, 219 Ga. App. 329, 330 (465 SE2d 511) (1995).

(b) The 1993 contract permitting a Troup County State Court judge to sit as a municipal court judge does not change this result. OCGA § 15-7-80 states, “The governing authority of any county may contract with the governing authority of any municipality within the county for the county to furnish municipal court services to the municipality as authorized by this article; and the governing authorities of municipalities are likewise authorized to enter into such contracts with county governing authorities.” While the contracting of judicial services is permitted, such contract does not create concurrent jurisdiction in the state and municipal courts. When exercising the terms of the contract, a state court judge does not sit in the capacity of a state court judge, but assumes the role of a judge of the municipal court, with all its limited jurisdiction.

Accordingly, the state and municipal courts must remain separate, and the state court must specifically identify when it is acting in a municipal court capacity: “When acting as officers of the municipal court all judges and other officers of the state court shall be styled as judges and officers of the municipal court; and all pleadings, process, and papers of the municipal court shall be styled as such and not as pleadings, process, and papers of the state court. The dockets and other records of the municipal court shall be kept separately from those of the state court.” (Emphasis supplied.) OCGA § 15-7-83. The language of OCGA § 15-7-83 requiring such clear separation in judicial roles and functions is reiterated verbatim in the 1993 contract, which was introduced below as stipulated “Exhibit A.”

This clear designation of judicial roles protects due process in that it affords pretrial notice to an accused regarding whether he is to defend against a state or municipal charge for the same conduct, not both; it delineates the authority and jurisdiction of the presiding judge; it impacts on procedures relating to a defendant’s right to trial; and upon conviction, such clear designation is imperative in order to perfect a defendant’s appellate rights, since an appeal of a municipal court conviction is filed as a writ of certiorari in superior court, and an appeal of a state court conviction is filed with this Court. OCGA § 5-4-3; see, e.g., Brownlee v. City of Atlanta, 212 Ga. App. 174 (441 SE2d 492) (1994). Also of no little significance, the required separation of judicial identity and functions controls whether any fines collected will be directed into county coffers or city coffers.

Decided December 12, 1997.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

In this case, the prosecution advised the state court judge to find that, since the judge had the authority to sit as a municipal court judge, she had the ability to take judicial notice of a municipal ordinance — even when she was sitting as a state court judge. This was poor advice. Nothing in the state Constitution, the state Code, or the Troup County contract creates this type of “hybrid” court simply because the same judge may preside in both courts. In fact, the emphasis on the separation of the courts’ functions and identities in the Constitution, the statute, and the terms of the contract prohibits such a creation. Ga. Const, of 1983, Art. VI, Sec. I; OCGA § 15-7-1. Thus, when acting in the capacity of a state court judge, the judge may not exercise concurrent jurisdiction and authority as a municipal court judge. See Dollar v. State, 160 Ga. App. 759 (288 SE2d 42) (1981); Floyd v. State, 168 Ga. App. 645 (310 SE2d 749) (1983). Likewise, when the judge acts in the capacity of a municipal court judge, she may not exercise concurrent jurisdiction and authority as a state court judge. See Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990); Rangel v. State, 217 Ga. App. 152 (456 SE2d 739) (1995); Millwood, supra. Herein, the trial judge erred in taking judicial notice of a City of LaGrange ordinance while presiding as a judge of the State Court of Troup County.

Judgment reversed.

Birdsong, P. J, and Ruffin, J, concur.

        Poole v. State, 229 Ga. App. 406 (494 SE2d 251) (1997); Williams v. State, 228 Ga. App. 698 (492 SE2d 708) (1997); Calloway v. State, 227 Ga. App. 775 (490 SE2d 521) (1997).

       Using “abusive” language in the presence of “others” is not a violation of state law. The state law offense requires as additional essential elements that the abusive language used (1) be “without provocation,” and (2) “tend to incite to an immediate breach of the peace.” OCGA § 16-11-39 (a) (3); see also Carroll v. State, 224 Ga. App. 543 (481 SE2d 562) (1997).

       In the instant case, as in the other cases out of Troup County which have been previously referenced, the accusation drawn in state court did not specify whether the offense charged was a violation of state law or a municipal ordinance violation; in this way a prosecutor has been allowed to argue both. See, e.g., Williams, supra.

        Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990); Dollar v. State, 160 Ga. App. 759 (288 SE2d 42) (1981).

        State v. Millwood, 242 Ga. 244, 246 (248 SE2d 643) (1978); Key v. Stewart, 228 Ga. 516 (186 SE2d 739) (1972).

       The failure to clearly separate the identities of the state and municipal courts could be seen as a breach of the terms of the contract; as such, any subsequent convictions could be the result of actions ultra vires and void.


author: Pope, Presiding Judge.

text:
    A97A1366.
    SOUTHERN ELECTRONICS DISTRIBUTORS, INC. v. MARSH.
    (495 SE2d 43)
   Pope, Presiding Judge.

After Charles Marsh left the employ of Southern Electronics Distributors, Inc. (“SED”) and began working for one of SED’s competitors, SED sued Marsh for violating several restrictive covenants Marsh had executed. Subsequently, SED and Marsh settled the lawsuit. When Marsh began working for another one of SED’s competitors, however, SED filed a second lawsuit against Marsh. In his answer to this second lawsuit, Marsh asserted a counterclaim in which he contended that SED had tortiously interfered with his business relationships and had breached a release provision contained in the settlement agreement reached in the first case. He also alleged that SED’s filing of the second lawsuit demonstrated that SED never intended to abide by the terms of the settlement agreement reached in the first case, and thus, that SED had fraudulently induced him into entering into that agreement. Marsh further sought a declaratory judgment that the restrictive covenants in question were unenforceable and, pursuant thereto, an injunction to prevent any future attempts by SED to enforce the covenants.

Approximately one and one-half months after Marsh filed his answer and counterclaim, SED filed a voluntary dismissal of its claims without prejudice pursuant to OCGA § 9-11-41 (a). Thirty-four days later, Marsh moved for partial summary judgment. In his motion, Marsh claimed that as a matter of law the restrictive covenants were unenforceable and that the release provisions contained in the settlement agreement reached in the first case barred any suit against him to enforce any restrictive covenants. Marsh also claimed that he was entitled to the abovementioned injunctive relief, as well as costs and attorney fees. SED moved to strike Marsh’s partial summary judgment motion and dismiss his counterclaim contending that he had waived his right to pursue the motion and counterclaim. The trial court denied SED’s motion, but certified the matter for immediate appellate review. We granted SED’s subsequent application for interlocutory appeal.

1. Pursuant to OCGA § 9-11-41 (a): “[A]n action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. . . . If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.” In this case, SED argues that Marsh never objected to the filing of SED’s voluntary dismissal as required to preserve his counterclaim, and that by failing to do so, he waived any rights he had to pursue the counterclaim or summary judgment as to any portion thereof. See D. P. S. Indus. v. Safeco Ins. Co. of America, 210 Ga. App. 289 (1) (435 SE2d 762) (1993); Moore v. McNair, 145 Ga. App. 888 (245 SE2d 25) (1978). We cannot agree.

Marsh’s filing and service of his partial summary judgment motion following SED’s filing of the voluntary dismissal clearly put SED on notice that despite the filing of its proposed dismissal, Marsh intended to pursue his counterclaim and did not consent to or acquiesce in having his counterclaim dismissed. Consequently, Marsh’s filing and service of his partial summary judgment motion served the same purpose and fulfilled the same goal as a formal objection. To hold otherwise would be to place form over substance, which cannot be allowed in cases like this. See Johnson v. Hamilton, 211 Ga. App. 268, 270 (2) (a) (438 SE2d 715) (1993). Moreover, to hold otherwise would be to ignore the well established rule that the “counterclaim limitation on voluntary dismissals [found in OCGA § 9-11-41 (a) should be] liberally construed so as to do substantial justice [in cases like this] where the plaintiff seeks to voluntarily dismiss in the face of affirmative relief being sought by the defendant.” (Citations omitted.) Moore v. Moore, 253 Ga. 211, 212 (317 SE2d 529) (1984).

Accordingly, we conclude that Marsh’s partial summary judgment motion constituted sufficient objection within the meaning of OCGA § 9-11-41 (a) to prevent the automatic dismissal of his counterclaim pursuant to SED’s filing of its voluntary dismissal. We are not persuaded to the contrary by any of the cases relied on by SED. With the exception of Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426 (425 SE2d 416) (1992), none of those cases contained record evidence of the existence of any action taken by a defendant after the filing of a voluntary dismissal, and thus, no evidence that could be construed as a response or objection to the filing of a voluntary dismissal under OCGA § 9-11-41 (a). And the action taken by the defendant in Mayland after the plaintiff in that case filed its voluntary dismissal, in substance amounted to no more than the restatement of that defendant’s original counterclaim for attorney fees and litigation expenses. Id. That mere restatement is not equivalent to the substantive partial summary judgment motion Marsh filed here, which clearly and authoritatively notified all concerned of Marsh’s determination to affirmatively pursue portions of his counterclaim against SED following the filing of SED’s voluntary dismissal. Thus, Mayland is distinguishable from the case at bar.

2. We reject SED’s contention that even if Marsh’s partial summary judgment motion constituted an objection within the meaning of OCGA § 9-11-41 (a),-it was not timely. Absent any statutory mandate regarding the issue of timeliness as it relates to the filing of such an objection, it was within the trial court’s sound discretion to determine the issue. And we find no clear abuse of that discretion in the trial court’s determination that the filing of Marsh’s motion for partial summary judgment, viewed as an objection, 34 days after SED filed its voluntary dismissal, and within the same term of court as the proposed dismissal, was timely.

Decided October 20, 1997

Reconsideration denied December 15, 1997.

Fisher & Phillips, Charles A. Hawkins II, Allison E. Thornton, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., Robert G. Brazier, Seaton D. Purdom, for appellee.

In light of the above, the trial court did not err in refusing to grant SED’s motion to strike Marsh’s partial summary judgment motion and dismiss Marsh’s counterclaim.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


text:
    A97A1523.
    WOODY v. THE STATE.
    (494 SE2d 685)
   Birdsong, Presiding Judge.

Karen Linn Woody was accused in Clayton County State Court of driving under the influence, having no insurance, having no driver’s license, red light violation, seat belt violation, and fleeing. She was also charged with obstructing an officer. Appellant was arrested on January 10, 1996 and was in jail from that time. Accusations were filed on January 23, 1996. The next day, January 24, appellant was taken from jail to court where, without an attorney, she pled guilty and was sentenced.

After sentencing, on January 30, counsel was appointed for her. The next day, February 1, 1996, appointed counsel filed a discovery motion, request for jury trial, and other pleadings indicating he did not know Woody had already pled guilty. He was soon advised, for on February 9 he filed a motion styled “motion for new trial,” which sought to withdraw Woody’s guilty pleas, arranged a hearing date, and filed a request for a court reporter. However, there is no transcript of that hearing. The trial court denied permission to appellant to withdraw her pleas.

Counsel avers in his statement of facts, which is not denied by the State, that on realizing there were no transcripts, he amended the Notice of Appeal to exclude transcripts. Counsel seeks dismissal of the appeal as frivolous and seeks permission to withdraw; but counsel nevertheless enumerates as error the trial court’s ruling that the State proved the guilty pleas were free and voluntary and that there was a factual basis for the pleas. Held:

1. Counsel’s motion to withdraw on grounds that he has examined the basis for appeal and finds it frivolous, is in the nature of a motion under Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493). This Court has not permitted Anders motions since 1988. See Fields v. State, 189 Ga. App. 532, 533 (376 SE2d 912), where we followed Huguley v. State, 253 Ga. 709, 710 (324 SE2d 729) which decried being forced to “[review] the entire record and transcript with very little assistance from counsel who is in a far better position to perceive error than is an appellate court looking at a cold record,” and we therefore held and announced that “the Anders motion will no longer be entertained in this court.”

In Fields and later cases when an appellant’s attorney avers his criminal appeal is frivolous, we have reviewed each record for substantive error and we have determined whether the evidence supports the verdict under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Scott v. State, 193 Ga. App. 577 (388 SE2d 416). This method of providing due process is far from satisfactory, for by its nature a review with “very little assistance” from counsel tends to deprive the criminal defendant of effective assistance of counsel.

In Rowland v. State, 264 Ga. 872 (452 SE2d 756) the Supreme Court attempted to provide a means for uniform treatment of procedurally deficient appeals in criminal cases. Rowland does not mention cases where counsel makes an Anders motion but its analysis of “sua sponte appellate review” (id. at 874) is pertinent here. The court in Huguley said the Anders motion is “unduly burdensome in that it tends to force the court to assume the role of counsel for the appellant.” Any sua sponte appellate review in cases of “incomplete appellate filings” is flawed, for it replaces the defendant’s or his attorney’s scrutiny of the trial record with an appellate court’s cursory review of the record for clear and grave injustice. Id., quoting Whittle v. State, 210 Ga. App. 841, 842 (437 SE2d 842) (dissent). It may even frustrate future habeas corpus review. Rowland, supra at 874.

Rowland involved an untimely filing of notice of appeal. The court held that a sua sponte appellate review is permissible only because a frustrated right of appeal may be remedied by the judicially-created right to an “out-of-time appeal.” Id. at 875. The court also held that in all cases of procedurally deficient appeals, the remedy is dismissal of the case and the provision for an out-of-time appeal.

We reverse this judgment and remand the case for re-hearing upon our own review of the record, but because of the disservice a sua sponte review does in most cases, we think that in the future the better treatment of impermissible Anders motions would be the “uniform treatment” of procedurally deficient appeals provided in Rowland: dismissal and allowance for a new “out-of-time” appeal.

2. The State has the burden to prove that a guilty plea was entered freely and voluntarily, with an understanding of the nature of the charges and the consequences of the plea; and that there was a valid waiver of the federal rights against self-incrimination, to a jury trial, and to confront one’s accuser may not be presumed from a silent record. Boykin v. Alabama, 395 U. S. 238, 242-243 (89 SC 1709, 23 LE2d 274, 279-280) (1969).

The trial court erred in denying appellant’s motion “for new trial” by which she sought to withdraw her guilty pleas. The words, “The court has been provided and finds sufficient factual basis exists for acceptance of this plea” are stamped on the pleas above the judge’s signature accepting each plea, but these words provide no basis on which the appellate court can ascertain whether the trial court abused its discretion in refusing to allow appellant to withdraw her guilty pleas.

In accepting appellant’s guilty pleas the state court did not follow Uniform State Court Rule 33. The Uniform State Court Rules have adopted the Superior Court Rules unless otherwise specifically stated. See preamble (A) through (E) of the Uniform State Court Rules. Uniform State Court Rule 33.11 thus provides: “A record of the proceedings at which a defendant enters a plea of guilty or nolo con-tendere shall be made and, preserved. The record should include: (A) the inquiry into the voluntariness of the plea (as required in [Uniform Superior Court Rule] 33.7); (B) the advice to the defendant (as required in [Uniform Superior Court Rule] 33.8); (C) the inquiry into the accuracy of the plea (as required in [Uniform Superior Court Rule] 33.9).” (Emphasis supplied.)

Section 33.9 of the Uniform Superior Court Rules provides: “Notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.” Uniform Superior Court Rule 33.9, as adopted by the Uniform State Court Rules.

An appellate court’s analysis of a superior court rule applies to state court proceedings where that rule has been adopted. See King v. State, 226 Ga. App. 576 (486 SE2d 904). In State v. Evans, 265 Ga. 332 (454 SE2d 468) after noting that a defendant “may know what he has done but may not know that those acts do not constitute the crime with which he is charged” (id. at 334), the court held that the provisions of Uniform Superior Court Rule 33.9 which also govern state court proceedings are “mandatory in this state.” Id. at 334. Uniform Superior Court Rule 33.9 requires the trial court to exercise discretion to subjectively satisfy itself that there is a factual basis for the plea. Where there is a motion to withdraw a plea according to Uniform Superior Court Rule 33.12 (which also applies to state court proceedings), “it is incumbent upon the trial court to produce a record on the basis of which a reviewing court can determine whether an abuse of discretion occurred” in denying a motion to withdraw the plea. Id. In Evans, failure to comply with Rule 33.9 did not mandate withdrawal of the guilty plea because the record contained an investigator’s affidavit giving the victim’s detailed statements, and thus the Supreme Court held there was no “manifest injustice” in denying withdrawal of the plea.

Green v. State, 265 Ga. 263 (2) (454 SE2d 466) emphasized the necessity to establish for the appellate court a factual basis for the plea as required by Uniform Superior Court Rule 33.9. The refusal to allow withdrawal of the plea was affirmed because the transcript of the guilty plea hearing showed a factual basis for the plea. Green held that a factual basis for the plea was not established by the plea petition and by Green’s testimony against a co-defendant, but “the indictment provided ample information from which the trial court could discern that the facts alleged by the state actually satisfied the elements of the charges to which Green was pleading guilty.” (Emphasis supplied.) Id. at 265.

In this case there are no facts in the record from which the appellate court can determine the factual basis for the several guilty pleas. According to a precise reading of Evans and Green, it is not sufficient that the State show a factual basis was determined; it must show the factual basis so the appellate court can determine whether a manifest injustice will occur unless the plea is withdrawn. “[I]f the factual basis is placed on the record of the plea hearing,” post conviction attacks are more easily handled. Evans, supra at 334.

In a similar case, where a statement printed on a plea form disclosed that the court had found a sufficient basis for the plea, we held: “[Standing alone, the valid and probing pre-printed plea petition is not sufficient to elicit a sufficient factual basis for a guilty plea to any particular charge. See Green v. State, [supra at 264 (2)]. Similarly, a trial court’s summary and conclusory statement that a factual basis exists, without specifying any of the facts underlying the charge, also is deficient. Wharton v. Henry, 266 Ga. 557, 558 (1) (469 SE2d 27).” King v. State, supra at 582. However, in that case scrutiny of the record of that guilty plea as supplemented by the transcript of the hearing on defendant’s motion to withdraw her guilty pleas clearly indicated not only that the trial court in that case was informed of the factual basis of the charges but also what that factual basis was, sufficiently to allow the appellate court to determine whether the trial court abused its discretion in denying that defendant’s motion to withdraw her plea.

Decided October 30, 1997

Reconsideration denied December 15, 1997.

James W. Bradley, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee.

In this case, there is no transcript of the plea hearing. There is no transcript of the hearing on appellant’s motion to withdraw her pleas, despite her specific written request that this hearing be recorded. The traffic tickets merely recite the charges. The record does not contain a factual basis for the pleas and therefore we cannot determine whether the trial court could discern facts which supported the pleas (Green, supra at 265), and we cannot determine whether the trial court abused its discretion in denying the motion to withdraw the pleas. Evans, supra.

Although we have held that when there is no transcript of the plea hearing, the State may use extrinsic evidence to carry its burden (Parks v. State, 223 Ga. App. 694, 695 (479 SE2d 3)), this cannot be done where there is nothing in the record to show that a factual basis for the charges was established.

The case is remanded with direction to the court below to conduct and record a new hearing on appellant’s request to withdraw her pleas and to rule specifically thereon, complying in all respects with Uniform State Court Rules including Uniform Superior Court Rules adopted therein and analyzed in Evans and Green, supra.

Judgment reversed and case remanded.

Ruffin and Eldridge, JJ, concur.