text:
    74915, 74917.
    74916.
    ADAMS v. COBB COUNTY (two cases). ADAMS et al. v. COBB COUNTY.
    (363 SE2d 260)
   Carley, Judge.

In 1978, the appellee-condemnor in each of these three companion cases filed a declaration of taking and paid estimated just and adequate compensation into the registry of court. Each appellant-condemnee then filed a timely notice of appeal pursuant to OCGA § 32-3-14. In each case, however, a period of more than five years elapsed without the trial court entering a written order therein. In 1983, each appellant attempted to utilize the provisions of former OCGA § 9-2-61 (a) to renew his or her appeal by paying costs and refiling a notice of appeal. The trial court, however, ordered the dismissal of appellants’ renewed appeals, holding that the remedial provisions of former OCGA § 9-2-61 (a) were not available to them. Each appellant filed a notice of appeal to this Court from the respective order of dismissal and the resulting three appeals are hereby consolidated for disposition in this single opinion.

1. The trial court cited OCGA § 9-11-41 (e) as authority for holding that appellants’ original appeals had been automatically dismissed. On appeal, appellants urge the inapplicability of that statute to condemnation proceedings. However, this court has previously held that the automatic dismissal provision of OCGA § 9-11-41 (e) does apply to condemnation proceedings. West v. Dept. of Transp., 174 Ga. App. 603 (330 SE2d 803) (1985). Moreover, even if OCGA § 9-11-41 (e) were otherwise inapplicable, appellants’ original appeals would nevertheless be deemed as having been automatically dismissed pursuant to OCGA § 9-2-60. See Dehco, Inc. v. State Hwy. Dept., 147 Ga. App. 476 (249 SE2d 282) (1978); Fulton County v. Corp. of the Presiding Bishop &c., 133 Ga. App. 847 (1) (212 SE2d 451) (1975).

2. Appellants filed their renewed appeals within six months of the automatic dismissal in 1983 of their original appeals. Appellants urge that the trial court erred in ruling that the renewal provision of former OCGA § 9-2-61 (a) was not available to them.

Former OCGA § 9-2-61 (a) provided, in relevant part, as follows: “If a plaintiff discontinues or dismisses his case and recommences the same within six months, the renewed case shall stand upon the same footing, as to limitation, with the original case. ...” (Emphasis supplied.) This statutory provision was held to be applicable where, as in the cases at bar, the prior dismissal was automatic rather than voluntary. Allstate Ins. Co. v. Dobbs, 134 Ga. App. 225 (213 SE2d 915) (1975). See also existing OCGA § 9-2-60 (c). However, by its unequivocal language, the former statute also provided that the right of renewal was available only to plaintiffs. See also existing OCGA § 9-2-60 (c). Appellants urge that they are the true plaintiffs because it was they who initiated the dismissed proceedings by filing their original notices of appeal.

Contrary to appellants’ contentions, it was appellee, as condemnor, that initiated these cases by its filing of a petition and a declaration of taking and by its depositing of an estimated amount of just and adequate compensation into the registry of the court. By doing so, appellee did more than file mere pleadings which were subject to subsequent dismissal. Appellee filed self-executing instruments by which the title to appellants’ properties passed to it. “Due to the special nature of condemnation cases in general, it has been held that the [Civil Practice Act (CPA)] did not apply to certain procedures of the Special Master Act ([OCGA § 22-2-100 et seq.]), [(cit.)], nor to specific proceedings under [OCGA § 32-3-1 et seq.]), [(cit.)], although provisions of the CPA may be applied if not in conflict with the condemnation act, [(cit.)]. In assessing the nature of the proceedings under [OCGA § 32-3-1 et seq.] it becomes obvious that the general notion of notice pleading under our Civil Practice Act does not apply to condemnation proceedings. The petition is not a mere pleading but an instrument which passes title when filed and [estimated] just and adequate compensation is paid into court under [OCGA § 32-3-7 (a)].” Dorsey v. Dept. of Transp., 248 Ga. 34, 36 (279 SE2d 707) (1981). Appellants did not contest the taking itself. See OCGA § 32-3-11. Thus, had no timely notice of appeal been filed pursuant to OCGA § 32-3-14, a money judgment, in the amount deposited into court by appellee, would ultimately have been entered in appellants’ favor and the proceedings would have been at an end. See OCGA § 32-3-13 (b). By filing a timely notice of appeal, however, appellants secured the right to a jury trial as to the amount of just and adequate compensation. Thus, the timely filing of appellants’ notices of appeal is not analogous to the timely filing of counterclaims, wherein they would be considered the plaintiffs. Appellants’ notices of appeal were in the nature of answers in the proceedings initiated by appellee, denying appellee’s estimate of the amount of just and adequate compensation and preserving that issue for jury determination. Accordingly, the automatic dismissal of the proceedings returned the cases to the following posture: There was still on file with the court self-executing instruments which had vested title to the properties in appellee but from which no timely notices of appeal were still pending. Under this posture, the applicable statutory provision would mandate that money judgments for the amounts of compensation deposited into court by appellee should be entered in appellants’ favor. OCGA § 32-3-13 (b). Accordingly, to hold, as appellants urge, that a condemnee has the right to refile his notice of appeal within six months of an automatic dismissal pursuant to the five-year rule would be tantamount to sanctioning a defendant’s reliance upon former OCGA § 9-2-61 (a) as authorizing the refiling of his answer after it has been stricken by operation of law. By its terms, former OCGA § 9-2-61 (a) applied only to plaintiffs, not defendants, and such a holding as appellants urge that this court make would clearly not be authorized under its provisions. See also existing OCGA § 9-2-60 (c).

Decided November 2, 1987

Rehearing denied November 18, 1987

Harry W. Bassler, for appellants.

Dana L. Jacket, for appellee.

“[T]he burden of proof is on the condemnor to show damages, with a correlative right to open and conclude the argument. The effect of this is to make [the condemnor] a plaintiff and the condemnee a defendant. [Cits.]” Taylor v. Ga. Power Co., 137 Ga. App. 44, 46 (222 SE2d 869) (1975). Appellee met this burden by filing declarations of taking and by paying an amount of estimated compensation into court. At some point in 1983, pursuant to the provisions of either OCGA §§ 9-11-41 (e) or 9-2-60, timely and viable notices of appeal by appellants, denying appellee’s estimated compensation, were no longer pending. Only instruments which had vested title to the properties in appellee upon its payment of estimated compensation remained on file. As defendants, appellants could not rely upon former OCGA § 9-2-61 (a) as authority for resecuring the right to a jury trial on the issue of compensation by refiling their notices of appeal. The renewal privilege under that statute was reserved to plaintiffs. Accordingly, the trial court did not err in dismissing appellants’ “renewed” appeals.

Judgments affirmed.

Banke, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    75021.
    PARKER et al. v. DEPARTMENT OF TRANSPORTATION.
    (363 SE2d 156)
   Carley, Judge.

Appellee-condemnor filed a petition and a declaration of taking as to certain land belonging to appellant-condemnees and deposited estimated just and adequate compensation into the registry of the court. Although appellants now urge that the declaration of taking did not comport with the requirements of OCGA § 32-3-6, they did not invoke a ruling on this contention by complying with the provisions of OCGA § 32-3-11. Instead, appellants merely filed a timely notice of appeal pursuant to OCGA § 32-3-14. Thereafter, a five-year period elapsed without an order being entered by the trial court. The trial court then entered an order holding that, under OCGA § 9-11-41 (e), the proceedings had been dismissed by operation of law. Appellants appeal from the order of the trial court holding that the proceedings had been dismissed.

It is clear that the five-year rule applies to condemnation proceedings and appellants do not contend otherwise. See generally Adams v. Cobb County, 184 Ga. App. 879 (363 SE2d 260) (1987). Instead, appellants urge that the trial court erred in finding the five-year dismissal rule applicable under the facts of the present case. Relying on Dorsey v. Dept. of Transp., 248 Ga. 34 (279 SE2d 707) (1981), appellants contend that the five-year period could not begin to run from the date that the declaration of taking was filed by appellee because that declaration was not in compliance with OCGA § 32-3-6.

In Dorsey, the condemnee had filed a timely petition pursuant to OCGA § 32-3-11, urging that the declaration of taking had failed to conform to the requirements of OCGA § 32-3-6, and the trial court found that the declaration was defective but permitted it to be amended by the condemnor. The Supreme Court held that “it was proper for the trial court to order an amendment rather than setting aside the original declaration. However, the amended declaration could only vest title in the condemnor at the time of the amendment, and not relate vesting back to the time of the original declaration. The possibility of a condemnor reaping a benefit from having filed a faulty declaration of taking should be avoided. We therefore hold that for the purpose of determining the value of the land taken or consequential damages to land not taken, the condemnee shall have the right to elect whether the date of taking is the date of the filing of the original declaration of taking or the date of the filing of the amendment.” Dorsey v. Dept. of Transp., supra at 37. Thus, the holding in Dorsey authorizes a choice on the part of a condemnee, who has timely and successfully invoked OCGA § 32-3-11, as to the effective date for determining the amount of just and adequate compensation.

Decided November 2, 1987

Rehearing denied November 18, 1987

Richard N. Hubert, Glenn P. Hendrix, for appellants.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, A. Joseph Nardone, Jr., for appellee.

Unlike the condemnee in Dorsey, however, appellants never filed a timely petition pursuant to OCGA § 32-3-11. This failure is fatal to an attempt to analogize this case to Dorsey and to the ultimate reliance upon appellee’s allegedly defective declaration of taking as the basis for holding that no five-year period could ever commence to run until the alleged defects therein were remedied. OCGA § 32-3-11 “provides the procedural framework and the remedy for a condemnee who wishes to question [the improper use, or abuse or misuse of the declaration of taking by] a condemnor. Appellants], however, did not avail [themselves] of the [§ 32-3-11] procedure, which empowers the trial court to ‘set aside, vacate, and annul the said declaration of taking, together with any title acquired thereby . . .’ [Cit.] Thus appellants] had a forum in which to air [their] allegations . . . and seek a remedy. [Their] failure to avail [themselves] of that opportunity does not entitle [them] now to bring up [their] allegations . . . [Cit.]” Department of Transp. v. Franco’s Pizza, 164 Ga. App. 497, 498 (1) (297 SE2d 72) (1982). Appellants did not raise any issue of the defective declaration of taking within the 30-day period mandated under OCGA § 32-3-11. Therefore, appellants waived any challenge to the legality of the declaration of taking and any right to urge that the declaration of taking was ineffective to commence proceedings which were otherwise subject to the five-year rule.

In this case, the five-year period initially began to run with the declaration of taking as it was filed and began to run anew with the issuance of each successive order of the trial court. Ga. Power Co. v. Whitmire, 146 Ga. App. 29 (1) (245 SE2d 324) (1978). Once a period of five years had elapsed following the last order of the trial court, the proceedings were dismissed by operation of law. OCGA § 9-11-41 (e); Adams v. Cobb County, supra. The trial court did not err in so holding.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74436.
    THORNTON et al. v. ELLIS et al.
    (363 SE2d 584)
   Carley, Judge.

Appellant-plaintiff lessors filed this dispossessory action, alleging that appellee-defendant lessees were holding over pursuant to a five-year lease agreement which had expired according to its own terms. The case came on for jury trial. The evidence showed the existence of an addendum to the lease, denominated as an “attachment to lease agreement terms,” to which the parties had agreed at some uncertain time and in which one of the provisions stated, in pertinent part: “Under paragraph 2 of the Lease Agreement the tenancy shall be for a period of five (5) years at the rate of $1500 (fifteen hundred dollars) per month with an option to renew at the expiration thereof.” The trial court granted appellees’ motion for a directed verdict, holding that, pursuant to the above-quoted provision, appellees had been given an option to renew on the same terms as those provided in the original lease and that appellees had exercised this option in a timely fashion. Appellants appeal from the grant of appellees’ motion for a directed verdict and from the judgment subsequently entered in favor of appellees.

1. Appellants enumerate as error the grant of appellees’ motion for directed verdict, urging that it was for the jury to determine whether or not the parties had intended that the exercise of the “option to renew” the lease would require the mutual agreement of all parties. The agreement in Pause v. City of Atlanta, 98 Ga. 92, 95 (26 SE 489) (1895) specifically provided that the option to extend the lease was to be “by mutual agreement of the lessor and lessee. . . .” It was held that such an “option was not to be exercised at [the tenant’s] will alone, but was dependent likewise upon the concurrence of the landlord.” Pause v. City of Atlanta, supra at 105 (6). However, the provision in the present case merely provides for “an option to renew at the expiration” of the five-year tenancy and does not explicitly state to whom the “option to renew” is given. Accordingly, the initial issue for resolution is whether the construction of such a general “option to renew” provision is a jury question.

“We commence our resolution of the issue by accepting as our basic premise that where no dispute of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law for the court; a contract is not ambiguous even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. [Cit.]” Pisano v. Security Mgt. Co., 148 Ga. App. 567, 568 (251 SE2d 798) (1978). “ ‘As a general rule, in construing provisions relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do so, and also upon the principle that every man’s grant is to be taken most strongly against himself.’ [Cits.]” Felder v. Oldham, 199 Ga. 820, 826 (2) (35 SE2d 497) (1945). See also Chalkley v. Ward, 119 Ga. App. 227, 230 (1) (166 SE2d 748) (1969). Thus, insofar as the relevant provision in this case is silent with regard to who may exercise the option, it is to be construed most strongly against appellants, as the landlords, and most favorably for appellees, as the tenants. Accordingly, since the “option to renew” does not explicitly provide for mutual consent, it must be construed as exercisable at the unilateral option of appellees. This construction is consistent with Pitman v. Griffeth, 131 Ga. App. 489 (206 SE2d 115) (1974), wherein this court held that a provision which merely provided “For a Term of 5 years, Privilege to Renew This Leas [sic] (5 years)” was to be construed as giving to the tenant the unilateral right to renew the lease. “As study of the lease itself and [the cited] authorities resolves any possible ambiguity in the lease, it is not necessary to look to extrinsic circumstances ... to determine the intent of the parties to the lease. [Cit.]” Pitman v. Griffeth, supra at 495-496. Accordingly, the trial court did not err in holding that the “option to renew” in the present case was to be exercised only by appellees.

The absence of any specific terms would not serve to render the option to renew unenforceably vague and the trial court’s direction of a verdict erroneous. “The general rule is that where a lease for a stated period at a stated price contains an option of renewal which fails to specify either the duration of the new term or the amount of rent, the intendment is that the renewal applies to a new term of the same duration for the same rent, and the fact that the rental value has increased in the meantime is immaterial. [Cits.] The tenants having exercised their option to renew the lease by proper and timely notice, they are entitled to the occupancy of the premises for the additional five-year term.” Saunders v. Sasser, 86 Ga. App. 499, 502 (1b) (71 SE2d 709) (1952). See also Pitman v. Griffeth, supra. Accordingly, the trial court did not err in holding that, as a matter of law, appellees’ timely notice of their exercise of the option to renew resulted in a five-year extension of the tenancy on the same terms provided in the original lease.

Appellant also urges that it was for the jury to determine whether there existed any consideration for the “option to renew.” The evidence shows, however, that the “option to renew” was only one of several provisions upon which appellees and appellants had reached agreement, which provisions represented the parties’ mutual promises with regard to the lease of the premises. See generally OCGA § 13-3-42. See also Turman v. Smarr, 145 Ga. 312 (89 SE 214) (1916). No jury question remained as to the existence of consideration for the “option to renew.”

Decided November 18, 1987.

Harris C. Bostic, for appellants.

Harold Karp, for appellees.

The provision constitutes a valid option to renew exercisable by appellees and the trial court did not err in granting appellees’ motion for a directed verdict.

2. The trial court refused to allow appellants to amend their pleadings in order to raise issues which were in no way relevant to whether appellees were holding over. The trial court’s ruling in this regard is enumerated as error.

“A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party.” OCGA § 9-11-15 (a). Appellants submitted their amendments for the first time during the course of the jury trial. Appellant did not secure appellees’ written consent to amend. The record clearly reveals that there was no abuse of the trial court’s discretion in its refusal to allow appellants to amend their pleadings after the presentation of evidence had begun. See generally Black v. Lowry, 159 Ga. App. 57, 58 (1) (282 SE2d 700) (1981).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    74583.
    BROADWATER v. CITY OF DANVILLE.
    (363 SE2d 316)
   Benham, Judge.

Appellant landowner filed an appeal in the Superior Court of Wilkinson County from the award of a special master in a condemnation proceeding. The matter was placed upon the trial calendar, and when counsel for appellee announced ready for trial and neither appellant nor his counsel appeared for announcement, the trial court granted appellee’s motion to dismiss appellant’s appeal for want of prosecution. Appellate review of the dismissal and of the failure of the trial court to reinstate the case to the trial calendar is now sought by appellant.

On January 5, 1987, the day of the call of the trial calendar on which appellant’s appeal appeared, appellant’s counsel was teaching a trial advocacy seminar in New Orleans. While the record contains the affidavit of appellant’s counsel in which he avers that in September 1986, he requested a leave of absence for early January 1987, the record does not contain such a request. Upon receiving the calendar showing that appellant’s case was the eleventh case set for trial on January 5, appellant’s counsel contacted counsel for appellee, who stated he had other matters set for January 5 and agreed that if the case were reached on January 5, the parties would seek a January 8 trial date. In a letter to the trial judge dated December 24 and filed with the clerk on December 29,1986, appellant’s counsel informed the court of the inability of counsel for both parties to begin trial on January 5, and requested that both be excused from attending the January 5 calendar call and that the case be specially set for January 8. The record also contains a letter to the trial judge dated December 29 and filed December 30 from appellee’s counsel, who joined appellant’s counsel in his request. On January 4, while in New Orleans, appellant’s counsel received word that the trial court wanted an appearance on behalf of appellant and that a continuance was not assured. Appellant’s counsel asked an attorney licensed to practice in Illinois and associated with him to appear in the trial court on January 5, to request a continuance until January 8, and to inform the court that appellant’s counsel would return immediately to try the case if so directed by the court. By means of an affidavit made a part of the record, the representative sent by appellant’s counsel averred that she had informed the court that appellant’s counsel would take the first flight from New Orleans in order that the case might proceed on the afternoon of January 5, 1987. The trial court denied the motion for continuance made by the representative from the office of appellant’s counsel and, upon motion of counsel for appellee, who had appeared at the calendar call and announced ready for trial, dismissed appellant’s appeal for want of prosecution. Appellant’s counsel personally appeared before the trial court the next morning and asked that the case be reinstated. A written motion seeking reinstatement was filed on January 30.

1. The record does not contain a ruling by the trial court on appellant’s motion to reinstate, and we have ascertained that no ruling has been made during the pendency of this appeal. While the lack of a ruling prevents appellate review of the ruling (Sunn v. Mercury Marine, 173 Ga. App. 593 (2) (327 SE2d 562) (1985)), the absence of a ruling does not affect the finality of the judgment rendered against appellant. The action was dismissed during the January term of court (OCGA § 15-6-3 (28) (H)) (but see Ga. L. 1987, p. 295, § 1, effective July 1, 1987), which term expired without any action by the trial court on appellant’s motion to reinstate. Since the trial court no longer has jurisdiction to set aside the dismissal and reinstate the action due to the expiration of the term (Askren v. Allen, 132 Ga. App. 292 (1) (208 SE2d 165) (1974)), the lack of a ruling thereon does not deprive this court of jurisdiction to review the dismissal of appellant’s appeal from the award of the special master.

2. The trial court’s order of dismissal recited that the case had been called for trial; the opposing party had announced ready; neither appellant nor his counsel had appeared for announcement; a representative from the firm of appellant’s counsel, not licensed to practice law in Georgia, had moved for a continuance, which motion was denied; appellee had moved to dismiss the case for want of prosecution; and the trial court had granted the motion.

“For failure of the plaintiff to prosecute . . . , a defendant may move for dismissal of an action . . . [which] does not operate as an adjudication upon the merits. . . .” OCGA § 9-11-41 (b). “[A]n order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion. [Cits.]” Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437) (1979). “[A] dismissal for [failure to appear] should not be based solely on the absence of a party, but should be taken only after a full consideration of all circumstances. [Cits.]” Cohutta Mills v. Bunch, 166 Ga. App. 395 (2) (304 SE2d 431) (1983).

Although it is not stated specifically, the strong implication of the trial court’s order of dismissal is that appellant’s appeal was dismissed due to the absence of appellant and his counsel from the January 5 calendar call. However, the dismissal could not have been based upon a violation of the “three-minute rule” embodied in former Code Ann. § 24-3341 since that rule was repealed by the adoption of the Uniform Rules for the Superior Courts (253 Ga. 799). See Rule 1.3, 253 Ga. at 809; Jones v. Jones, 256 Ga. 185 (345 SE2d 605) (1986). While Rule 14 of the Uniform Rules for the Superior Courts permits a trial court to dismiss a civil action without prejudice “upon the failure to properly respond to the call of the action for trial . . . ,” that rule could not be properly exercised under the facts of this case since, under Rule 8.4, neither appellant nor his counsel was required to appear ready for trial on January 5 inasmuch as appellant’s case was number 11 on the published trial calendar. Rule 8.4 “requires the presence only of [the parties and counsel in] the first five cases on the published calendar. [Appellant’s appeal] was case #[11] on that calendar and [therefore neither appellant nor his counsel] was . . . required to be in court on Monday, [January 5]. [His] counsel attempted to find out either a specific trial date or to obtain permission to be on call with reasonable notice. These are the two options provided by the rules [Rule 8.4], the purpose of which is to provide for the uniform and expeditious functioning of the courts of this state, so that the merits of each case may be reached and substantial justice may be done to the parties. [Cit.]” Fulton v. State of Ga., 183 Ga. App. 570, 572 (359 SE2d 726) (1987). Since appellant and his counsel were not required to be present at the call of the calendar on January 5, the trial court abused its discretion when it dismissed appellant’s appeal for failure to appear.

Decided November 18, 1987.

Tony L. Axam, for appellant.

James G. Maddox, for appellee.

3. Attached to the brief of appellee is the affidavit of appellee’s counsel with exhibits. However, a brief cannot be used for adding evidence to the record. Since we are required to base appellate review upon the evidence of record and not from the brief of either party, the affidavit of appellee’s counsel has not been considered in rendering this decision. Leathers v. Timex Corp., 174 Ga. App. 430 (1) (330 SE2d 102) (1985).

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    74639.
    74640.
    CARR v. THE STATE. DETOY v. THE STATE.
    (363 SE2d 319)
   McMurray, Presiding Judge.

In each of these cases the respective defendant was charged by accusation “with the offense of Misdemeanor . . .

40-0698 PEDESTRIAN SOLICITING STAND IN THE ROADWAY FOR THE PURPOSE OF SOLICITING NEWSPAPERS.”

Defendants were convicted of the offense charged and sentenced. (See OCGA § 40-6-98.) On motion for new trial each defendant raised for the first and only time before the trial court, the contention that: “The accusation under which this Defendant was tried does not allege an offense under OCGA Section 40-6-98 (b).” Defendants’ motions for new trial were denied and they appeal, each raising the single enumeration of error that the offense as set forth in the accusation for which defendants stand convicted, is not described as a crime under any statute of the State of Georgia. Held:

The posture of these cases sub judice is such that we are unable to reach the merit of defendants’ attacks upon the legal sufficiency of the accusations. This is an appellate court, limited to the correction of errors of law in the courts below.

Thus, we may consider only issues properly raised in lower courts. Moore v. State, 176 Ga. App. 882, 884 (2) (339 SE2d 271). In this instance, the issue which these defendants argue was not properly raised in the trial court. A motion for new trial is not a proper vehicle for raising questions as to the legal sufficiency of an accusation. Scandrett v. State, 124 Ga. 141 (2) (52 SE 160). See also Gossitt v. State, 182 Ga. 535 (1) (186 SE 417), and cits. Accord Narramore v. State, 181 Ga. App. 254 (351 SE2d 643).

Decided November 18, 1987.

Reid W. Kennedy, David M. Simpson, for appellants.

John C. Carbo III, Solicitor, for appellee.

Judgments affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge. Beasley, Judge,

text:
    74698.
    BAILEY v. THE STATE.
    (363 SE2d 172)
   Sognier, Judge.

This case is before us for the second time and presents us with a procedural nightmare. Appellant was tried in Henry County Probate Court for driving under the influence of alcohol, speeding, and driving while his license was suspended or revoked. The record reflects that appellant was found guilty in probate court on August 14, 1985, and filed a de novo appeal to the Superior Court of Henry County on August 22, 1985. His de novo appeal was placed on the superior court’s criminal calendar for trial on November 4, 1985; however, his case was removed from the trial calendar for that date and placed on the criminal calendar (not listed as a de novo appeal) for trial on February 3, 1986. Between the time of filing of the de novo appeal and appellant’s trial on February 3, 1986, he was indicted by the grand jury of Henry County for the offenses of habitual violator by driving after receiving notice that his driver’s license had been revoked, driving under the influence of alcohol, and speeding. Except for the habitual violator charge, these are the same offenses which were the subject of appellant’s de novo appeal. He was found guilty of these offenses in his trial on February 3, 1986, and appealed to this court, enumerating four errors. First, that the superior court erred by overruling his motion to dismiss the charges on the ground of double jeopardy; second, that the superior court erred by denying his motion to dismiss on the ground that he was not brought to trial during the first term of superior court after he filed his de novo appeal; third, that the superior court erred by overruling his motion to dismiss on the ground that the court lacked subject matter jurisdiction over the felony charge of habitual violator; and fourth, that the superior court erred by imposing a felony sentence (to confinement) that was longer than the sentence to confinement imposed by the probate court.

We could not determine from the record before us on his first appeal whether appellant had been tried by the Probate Court of Henry County, and if so, whether or not appellant filed a de novo appeal with the Superior Court of Henry County. Therefore, we remanded the case to the superior court with direction to provide us with information necessary to resolve the issues raised by appellant. Bailey v. State, 180 Ga. App. 602 (349 SE2d 822) (1986). The superior court complied with our direction and this appeal ensued, raising the same issues enumeráted as error in the original appeal of this case.

1. In regard to appellant’s claim of former jeopardy at his trial in superior court, we are unable to determine with certainty whether appellant’s trial in superior court was a new trial based on the indictment obtained by the prosecuting attorney after appellant filed his de novo appeal, or whether it was a trial based on appellant’s de novo appeal from his conviction in probate court. If the former, appellant’s conviction of the offenses on appeal here will be controlled by our discussion of double jeopardy in Division 2 of this opinion. If the latter, the trial was not held within the time required by OCGA § 5-3-30, and appellant’s motion to dismiss his appeal on that ground should have been granted. That statute provides: “All appeals to the superior court shall be tried by a jury at the first term after the appeal has been entered unless good cause is shown for continuance.” We have held that the language of this statute is obligatory, and failure to try such appeals at the first term, unless excusable, will result in dismissal of the appeal. Huber v. State, 140 Ga. App. 148, 149 (230 SE2d 105) (1976). Appellant here filed his de novo appeal on August 22, 1985, during the July term of the Henry County Superior Court, OCGA § 15-6-3 (18) (B), and it was placed on the criminal calendar for trial on November 4, 1985, during the October term of court. Id. For reasons not explained by the record before us, appellant’s case was removed from the trial calendar for the October term and was placed on the criminal calendar for the January term of court, with trial scheduled for February 3, 1986. Since appellant’s de novo appeal was not tried during the first term of court and no good cause was shown for continuance as required by OCGA § 5-3-30, supra, the trial court erred by denying appellant’s motion to dismiss his de novo appeal of the offenses of driving under the influence of alcohol, speeding and driving with a suspended license. The practical effect of our holding, if the trial on February 3, 1986, was based on appellant’s de novo appeal, is to reinstate the conviction and sentences imposed by the probate court for the offenses of driving under the influence of alcohol, speeding and driving with a revoked driver’s license. The dissent holds that appellant has been deprived of his de novo appeal. In this regard, we are sustaining appellant’s motion to dismiss his de novo appeal. Thus, he has voluntarily relinquished his right to a de novo appeal in this appeal. Hence, the probate court’s convictions and sentences are final, and thereby, stand.

2. Turning now to the offense of habitual violator, which was definitely tried pursuant to the indictment, appellant’s conviction of that offense must be reversed because appellant’s trial for the offense of habitual violator was barred by the double jeopardy provision of the Georgia Constitution, 1983, Art. I, Sec. I, Par. XVIII. The conduct forming the basis of the habitual violator charge was operating a motor vehicle on July 6, 1985, after having received notice that his (appellant’s) driver’s license had been revoked, without having obtained a valid driver’s license after said revocation. This is the identical conduct forming the basis of appellant’s conviction in probate court of the offense of driving with a revoked or suspended driver’s license on July 6, 1985. In State v. Burroughs, 246 Ga. 393, 394 (271 SE2d 629) (1980), the court held that a person convicted of a greater offense cannot thereafter be convicted in a separate trial for the lesser included offense if both convictions are based on proof of the same facts, and that the reverse is also true, i.e., a conviction of a lesser included offense bars subsequent trial on the greater offense. Since appellant was tried on the lesser misdemeanor offense of driving with a revoked or suspended driver’s license (OCGA § 40-5-121) (which conviction has been reinstated by our holding in Division 1), his trial on the felony offense of habitual violator (OCGA § 40-5-58 (c)), based on the same conduct, was barred. Id.; Carnes v. State, 242 Ga. 286 (2) (248 SE2d 660) (1978). Although the State argues that appellant’s motion to dismiss because of double jeopardy was not timely, failure to file a written plea of former jeopardy prior to trial will not defeat an accused’s right to be free of multiple convictions for the same criminal act. McClure v. State, 179 Ga. App. 245, 246 (1) (345 SE2d 922) (1986). Although there is an exception to this rule when dealing with the procedural bar to double jeopardy, that exception is not applicable when dealing with the substantive bar to double jeopardy, as is the case here. Id. If the State contends that appellant was tried on the indictment for all offenses and this was not a de novo appeal, the same rule would be applicable to the offenses of driving under the influence of alcohol and speeding, as appellant was convicted of those offenses in probate court.

For the reasons set forth above, appellant’s conviction of the offense of habitual violator must be reversed and set aside, and his convictions in superior court of speeding and driving under the influence of alcohol are reversed.

Judgment reversed, and the probate court’s convictions and sentences for driving under the influence of alcohol, speeding and driving with a revoked driver’s license are reinstated.

Birdsong, C. J., Deen, P. J., and Pope, J., concur. McMurray, P. J., concurs in Division 2 and in judgment only as to Division 1. Banke, P. J., Carley, Benham, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I agree that the judgment should be reversed, but the convictions of the probate court cannot be reinstated.

First it must be recognized that there were two cases. One is the case on traffic citations which proceeded in the probate court and was appealed for a de novo trial on those traffic citations in the superior court. Defendant’s bringing it to the superior court, left that case in the same posture it was in at the probate level: the state was the moving party, accusing defendant of traffic violations, and the defendant was the responding party, not an “appellant” in the sense of seeking a review of what transpired in the lower court. A new trial was, according to law, to be afforded to defendant in the superior court, with a jury if he wanted one. OCGA §§ 5-3-29; 5-3-30. As stated in Williams v. Calloway, 171 Ga. App. 286, 288 (2) (319 SE2d 500) (1984), “[a]n appeal to the superior court from the probate court is a de novo investigation. OCGA § 5-3-29 ... ‘a new trial in which only the matter presented to the court below can be relitigated.’ Mathews v. Mathews, 136 Ga. App. 833, 837 (222 SE2d 609) (1975).”

The de novo appeal, CR-85-0013, had been on the November trial calendar but was not tried. Instead, apparently, the state simply sought to substitute an indictment, CR-85-0103, for the traffic citations upon which defendant had already been tried in probate court, and to substitute a trial on the indictment for the de novo trial sought by defendant in superior court on the traffic citations. That precisely is at the heart of what defendant is complaining about, in this appeal. Thus, when the opinion refers to “his case” and “the case,” it should be recognized that there are two cases. As to the indicted case, CR-85-0103, which the record clearly shows is what was tried in February, I agree that double jeopardy bars the indictment and trial on it.

In the course of that trial, defendant moved to dismiss the traffic citation charges then pending in CR-85-0013 because he had not been timely tried on them in superior court under OCGA § 5-3-30. Defendant was entitled to a de novo trial on those charges and promptly filed for it. OCGA § 5-3-29. As he points out, the trial should have transpired “at the first term after the appeal [was] entered unless good cause is shown for continuance.” OCGA § 5-3-30.

It is the clerk’s duty to place civil cases on the calendar, Etheridge v. Etheridge, 242 Ga. 101 (249 SE2d 569) (1978). Even if it is the clerk’s duty also in criminal cases such as Bailey’s, the clerk did so. But as the majority concludes, no good cause was shown for the case not being tried during that term. It was the state’s obligation to proceed to prosecute, in the public interest and in order to comply with OCGA § 5-3-30. Certainly defendant had no control over the state’s failure to do so. Consequently, the charges based on the traffic citations were required by law to be dismissed as defendant urged. His right to a superior court trial was a right to a timely trial, and it was the charges and not a trial on them which he sought by motion to dismiss.

Decided November 18, 1987.

Roger A. Hunsicker, James W. Bradley, for appellant.

E. Byron Smith, District Attorney, for appellee.

To reinstate the probate court convictions and sentences would not only sweep aside the time requirement of OCGA § 5-3-30, it would also deprive defendant of the process provided by the statutory scheme which protects the right to trial by jury while allowing most traffic cases to be disposed of in the jury-less probate or magistrate court.

I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.

       In this case, defendant himself apparently had a particular interest in a speedy trial, as counsel advises dehors the record that he was incarcerated since arrest and began serving the probate court sentence as soon as it was imposed.


text:
    74856.
    WEST v. JUDICIAL COUNCIL OF GEORGIA.
    (363 SE2d 176)
   McMurray, Presiding Judge.

James R. West (plaintiff), an official court reporter for the Fulton County Superior Court, brought a declaratory judgment action against the Judicial Council of Georgia (judicial council), seeking a determination as to the meaning of regulatory rules, promulgated by the judicial council, which “[pjrovide for and set the fees to be charged by all official court reporters in [Georgia] . . .” OCGA § 15-5-21 (a) (1). These rules are known as the “Court Reporters’ Fee Schedule.” This appeal followed the superior court’s order granting the judicial council’s motion for summary judgment. Held:

“Section 1 of the Georgia Declaratory Judgments Act (Ga. L. 1945, p. 137)[, OCGA § 9-4-2 (a) and (b),] provides that in cases of ‘actual controversy’ the superior courts shall have power to ‘declare rights’ and other legal relations of ‘any interested party’ petitioning for such declaration, whether or not further relief is, or could be, prayed.” Brown v. Lawrence, 204 Ga. 788, 790 (51 SE2d 651). However, an action for declaratory relief may not stand where there does not exist a “justiciable dispute” or controversy between parties with “adverse” interests and where it is apparent that the petitioner is merely seeking judicial advice. See Brown v. Lawrence, 204 Ga. 788, supra; Pennsylvania Threshermen &c. Ins. Co. v. Gardner, 107 Ga. App. 472 (130 SE2d 507); and Hatcher v. Ga. Farm &c. Ins. Co., 112 Ga. App. 711, 715 (3) (146 SE2d 535).

Decided November 18, 1987.

Louis Levenson, for appellant.

Michael J. Bowers, Attorney General, Emily P. Hitchcock, Staff Assistant Attorney General, for appellee.

In the case sub judice, the pleadings show that there is a difference of opinion between plaintiff and the judicial council as to the proper interpretation of the “Court Reporters’ Fee Schedule.” However, there is no indication that an “actual controversy” exists between plaintiff and the judicial council with regard to “adverse” claims upon a state of facts which has accrued. While plaintiff may have a general economic interest jeopardized by the judicial council’s position in this matter, “there must be an effort to apply the opinion to a plaintiff’s particular case in order to place him within the range of a justiciable controversy essential to a declaratory judgment.” Borchard on Declaratory Judgments, p. 53.

“16 Am.Jur., 331, § 61, states as follows: ‘Failure to name as defendant one with sufficient adverse interest in the subject of the litigation is a jurisdictional defect. Persons interested on one side only of the controversy are not sufficient parties, although they may disagree as to the law.’ See also Borchard on Declaratory Judgments (2d ed.), 39.” Brown v. Lawrence, 204 Ga. 788, 792-793, supra. Consequently, in the case sub judice, since the record indicates that there is no adverse interest between plaintiff and the judicial council within the meaning of the Declaratory Judgments Act, neither this court nor the trial court has jurisdiction to consider any aspect of plaintiff’s petition for declaratory relief.

Appeal dismissed.

Sognier and Beasley, JJ., concur.


text:
    74886.
    ARTESIANO v. K-MART CORPORATION et al.
    (363 SE2d 177)
   McMurray, Presiding Judge.

Olimpia Artesiano (plaintiff) brought an action against K-Mart Corporation (K-Mart) and Ward Building Services, Inc. (Ward) and alleged she sustained injuries after she slipped and fell on “wax” on the floor of K-Mart’s department store. More specifically, plaintiff alleged that K-Mart and Ward were negligent in maintaining the floor of K-Mart’s department store and that K-Mart “failed to exercise ordinary care in keeping its premises and approaches safe ...” K-Mart and Ward filed separate answers, both denying the material allegations of plaintiff’s complaint, and subsequently filed separate motions for summary judgment against plaintiff.

The undisputed facts show that Ward, pursuant to a contractual arrangement with K-Mart, completed cleaning and waxing the floors of K-Mart’s department store at about 7:00 in the morning on April 29, 1984. Later that afternoon, about 1:00, plaintiff went to K-Mart’s store with her husband, her son Mario Artesiano and her grandson to purchase merchandise. Upon entering the store, the group separated and, as plaintiff and her grandson were walking together through the store, plaintiff slipped and fell.

Plaintiff’s evidence regarding the circumstances of her fall was summarized in her affidavit and the affidavit of her son, Mario Artesiano. In this regard, plaintiff testified, in pertinent part, as follows: “I am sixty-seven (67) years of age and have waxed and polished floors for approximately forty-five (45) years. ... I have linoleum-type floors in my home, similar to the floor at the K-Mart store . . . and am familiar with the proper method used to wax this type of floor. ... I clean my floors with household ammonia and detergent. After the floors are dry, I apply liquid wax. My floors are not slippery and do not have excessive wax on them.

“On April 29, 1984, at approximately 1:00 p.m., I was walking down the automotive aisle at K-Mart with my grandson Philip next to me, when I slipped and fell. I was wearing casual shoes with low heels. ... I examined the floor just after I fell. I was lying on the floor and smelled the wax and saw and felt that the floor was excessively waxed. I had wax on my dress. ... I have never been to [this] K-Mart Store previous to April 29, 1984, and did not know that the floor was highly waxed and slippery in the area where I fell. ... I reported my fall to K-Mart’s assistant manager, Mr. Jimmy Schafer. I told him I slipped and fell because the floor was highly waxed . . .”

Mario Artesiano, testified in pertinent part, as follows: “The Plaintiff . . . directed me to the spot where she fell by describing the merchandise on the shelves. ... I told the assistant manager, Mr. Jimmy Schafer, that the Plaintiff had slipped and fell. ... I examined the spot where the Plaintiff fell. ... I felt the wax through the soles of my shoes. ... I also felt the wax with my hand. The area where the Plaintiff fell was highly waxed and [was] very slick and slippery.” (K-Mart’s assistant manager, Mr. Jimmy Schafer, offered no testimony on behalf of plaintiff, K-Mart or Ward.)

The trial court granted K-Mart’s and Ward’s motions for summary judgment in separate orders and this appeal followed. Held:

1. In her first and second enumerations of error, plaintiff contends the trial court erred in granting Ward’s motion for summary judgment.

In Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327), the Supreme Court “held that to prove that a ‘slip and fall’ is due to the defendant’s negligence in maintaining his floor, ‘the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.’ 246 Ga. at 624.” Martin v. Sears, Roebuck & Co., 253 Ga. 337, 338 (320 SE2d 174).

Upon discovery in the case sub judice, plaintiff deposed that she was familiar, based on forty-five years’ experience, with proper methods of waxing floors and that her fall was due to an excessive application of wax, which she was able to smell, feel and see after her fall. Plaintiff further deposed that she discovered wax on her dress after her fall and her son testified, in his affidavit, that he examined the area where plaintiff fell and found it to be “highly waxed and very slick and slippery.” Under strikingly similar circumstances in Martin v. Sears, Roebuck & Co., 253 Ga. 337, supra, the Supreme Court held that such “testimony satisfies the test in Alterman by offering some evidence of negligent application of materials used in treating the floor . . . [and therefore] created a conflict in the evidence as to a material issue which was sufficient to survive [a] . . . motion for directed verdict. OCGA § 9-11-50.” Martin v. Sears, Roebuck & Co., 253 Ga. 337, 338, supra. Consequently, since the undisputed evidence showed that Ward treated K-Mart’s floor with wax on the morning before plaintiff’s fall, we find the trial court erred in granting Ward’s motion for summary judgment as a genuine issue of material fact remains with regard to Ward’s application of materials to K-Mart’s floor. Compare K-Mart Corp. v. Spruell, 173 Ga. App. 884 (328 SE2d 577).

2. Plaintiff contends in her third and fourth enumerations of error that the trial court erred in granting K-Mart’s motion for summary judgment.

In her complaint, plaintiff alleged that K-Mart was negligent in failing “to exercise ordinary care in keeping its premises and approaches safe, in violation of OCGA [§] 51-3-1 . . .” While this Code section imposes a duty on a proprietor to exercise ordinary care in inspecting its premises for protection of invited persons, “[t]he true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. [Cits.]” Pound v. Augusta Nat., 158 Ga. App. 166, 167, 168 (279 SE2d 342). “Hence, in order for [plaintiff] to recover, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger of the part of the invitee. [Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721).]” Pound v. Augusta Nat., 158 Ga. App. 166, 168, supra.

Decided November 18, 1987.

Eugene A. Medori, Jr., Alice P. Weinstein, for appellant.

Lawrie E. Demorest, for appellees.

In the case sub judice, plaintiff deposed that she had not been to K-Mart’s store before the day she slipped and fell. Further, plaintiff testified in her deposition that she noticed the floor was “very shiny” before her fall; however, she affirmed on cross-examination that the area where she slipped and fell was not “shinier than other parts of the aisle [where she fell] . . . [and that it] didn’t look any different to [her] before [she] fell.” Under these circumstances, we cannot say, as a matter of law, that plaintiff failed to exercise ordinary care for her own safety as she traversed K-Mart’s floor. Absent actual or implied notice of its existence, an excessively waxed floor is not such a condition which would reveal to a person, acting in the exercise of ordinary care, the existence of a hazard to walking. Compare Pound v. Augusta Nat., supra. See Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1) (318 SE2d 235). Consequently, plaintiff’s evidence showing that a hazardous condition existed on K-Mart’s floor which caused her to slip and fall and her evidence showing that she was not aware of the hazardous condition before her fall was sufficient to sustain plaintiff’s burden on summary judgment; i.e., evidence indicating fault on the part of K-Mart in failing to exercise ordinary care in keeping its premises safe and ignorance of the danger on the part of plaintiff. Inasmuch as genuine issues of material fact remain, the trial court erred in granting K-Mart’s motion for summary judgment. See 63 ALR2d 641, § 14 and cits.

Judgment reversed.

Sognier and Beasley, JJ., concur.


text:
    74892.
    LUMLEY v. THE STATE.
    (363 SE2d 69)
   McMurray, Presiding Judge.

Defendant appeals from the denial of his plea of former jeopardy and from the trial court, sua sponte, declaring a mistrial shortly after the beginning of his trial on an accusation charging the offense of driving under the influence. During the cross-examination of the State’s first witness the jury was excused and a colloquy ensued concerning the scheduling of the testimony of one of defendant’s witnesses. Reference was made to a conversation in chambers between the trial court and defense counsel on the question of taking the testimony of a defense witness “out of time.” However, the colloquy revealed a misunderstanding in that the trial court envisioned defendant’s presenting his witness out of turn as occurring after the close of the State’s evidence, therefore, as the first defense witness. Defense counsel had envisioned interrupting the State’s presentation of its evidence in order to obtain the testimony of the defense witness who was not available the following day (Wednesday). There was not sufficient time remaining on that date (Tuesday) to permit completion of the State’s case and the presentation of the testimony of the defense witness at issue.

After the misunderstanding became known, the colloquy continued in regard to possible remedies to the situation. Defense counsel urged the interruption of the State’s case in order to permit the witness to testify on that date but argued against recessing the trial to the second following day (Thursday), contending that such would be prejudicial to defendant.

The trial court declared a mistrial, to which defendant objected. Subsequently, defendant filed his plea of former jeopardy which was denied. Held:

Defendant contends that a second trial on the same charge is barred because the first trial was “terminated improperly.” See OCGA § 16-1-8 (a) (2). However, termination is not improper where the “[t]rial court finds that the termination is necessary because . . . (B) Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant^]” OCGA § 16-1-8 (e) (2) (B). “[T]he trial court appears to be empowered, as a proper termination not barring further prosecution, to declare mistrial when it is impossible to proceed with trial without injustice to the defendant, independent of the defendant’s consent or lack of consent.” State v. Abdi, 162 Ga. App. 20, 22 (288 SE2d 772) (affirmed 249 Ga. 827 (2) (294 SE2d 506)). This principle appears to govern the case sub judice. Whether or not the trial court’s discretion in regard to the conduct of the trial may have permitted it to require the interruption of the State’s case in order to obtain the testimony of defendant’s witness, there is nothing shown in regard to the scheduling misunderstanding which would have compelled such a solution. (We note in this regard, the trial court has the duty to ensure a fair trial to all parties in a case. State v. Abdi, 162 Ga. App. 20, 22, supra.) Thus, the posture of the trial was such that it could either be completed without the defense witness, a choice presumably prejudicial to defendant, or the completion of the trial could have been delayed to permit the return of the defense witness on the second following day, a choice which defendant emphatically argued against as being prejudicial. As, the trial court was faced with a situation where no viable option for continuing the trial did not involve prejudice to defendant, it correctly concluded that termination was a manifest necessity. The trial court did not err in declaring the mistrial or in overruling defendant’s plea of former jeopardy. See also Illinois v. Somerville, 410 U. S. 458 (93 SC 1066, 35 LE2d 425); Abdi v. State, 249 Ga. 827 (2) (294 SE2d 506); Haynes v. State, 245 Ga. 817 (268 SE2d 325).

Decided November 18, 1987.

M. Francis Stubbs, for appellant.

J. Clayton Burke, Jr., Solicitor, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Carley, Judge. Banke, Presiding Judge,

text:
    74982.
    FOOTE v. THE STATE.
    (363 SE2d 180)
   Carley, Judge.

Appellant was charged as a recidivist with two counts of aggravated assault and one count of possession of a firearm by a convicted felon. The jury found appellant guilty of one count of aggravated assault and possession of a firearm by a convicted felon. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant contends that his trial counsel rendered ineffective assistance by failing to move to sever the trial on the aggravated assault charges from the trial on the charge of possession of a firearm by a convicted felon. This issue was not raised by appellant in his motion for new trial, although that motion was not filed by his trial counsel but by his appellate counsel. There has been no ruling by the trial court on appellant’s claim of ineffective assistance of counsel. In Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), the Supreme Court held that “[a]ny ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.” The instant case is factually different from Thompson. This case deals with a motion for new trial which was filed by appellant’s appellate counsel rather than a motion for new trial which was filed by trial counsel and later amended by appellate counsel. However, the rationale of Thompson is nevertheless controlling. In Thompson, the Supreme Court remanded the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel even though this claim was raised for the first time on appeal. The Supreme Court warned: “But, from the date this opinion is published in the Official Advance Sheets this court will no longer remand such cases.” Thompson, supra at 388. However, it is clear that the publication in the Official Advance Sheets as the trigger for the effective date of the decision in Thompson is intended to give notice of this change to new counsel with cases that are then pending in the trial court so that he may avoid any waiver of the ineffective assistance of counsel claim by including the claim in his motion for new trial or by amending a previously filed motion for new trial to include the claim. As the instant case was not pending in the trial court prior to the publication of the Supreme Court’s decision in Thompson v. State, it is controlled by Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). “Thus we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel.” Smith v. State, supra at 656. See also Hambrick v. State, 256 Ga. 148 (5) (344 SE2d 639) (1986). Compare Brown v. State, 257 Ga. 277, 279, fn. 1 (357 SE2d 590) (1987), wherein no remand was required because “the trial court heard and ruled on the claim of ineffective assistance of counsel. ...” The effect of such disposition would be to end the case as far as this court “is concerned until and unless a notice of appeal is filed by [appellant] after an adverse ruling subsequent to the [trial court’s] holding of the required hearing and the entry of the required findings concerning the issue of effective assistance of counsel. Of course, should the trial court find ineffective assistance of counsel requiring the grant of new trial, the new trial would proceed. Therefore, for all purposes, this particular case [would be] completed from the appellate review standpoint and [would] not reappear here except by virtue of a new notice of appeal from some future order entered by the trial court.” Midura v. State, 183 Ga. App. 523, 526 (359 SE2d 416) (1987). (Special concurrence.)

2. The appellant contends that the trial court erred in denying his motion for a mistrial made in response to an erroneous statement by the prosecuting attorney during cross-examination of a defense witness. The prosecuting attorney stated that “I’ve got a witness who had already said before that she lied to this jury.”

“In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury. [Cits.]” Watkins v. State, 237 Ga. 678, 682-683 (229 SE2d 465) (1976). See also Hoerner v. State, 246 Ga. 374, 375 (271 SE2d 458) (1980).

In the present case, the trial judge instructed the jury that the prosecutor’s comment was improper and was to be given no consideration during their deliberations, and he obtained individual assurances from them that they would be able to ignore the remark. In addition, the judge rebuked the prosecutor in the presence of the jury for making the remark. Under these circumstances, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial.

Judgment affirmed and case remanded with direction.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Sogniér, Pope, Benham and Beasley, JJ., concur. Banke, P. J., dissents in part.

Banke, Presiding Judge,

dissenting in part.

1. “ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.’ Strickland v. Washington, 446 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Askin v. State, 178 Ga. App. 810, 811 (344 SE2d 699) (1986).

The appellant’s conviction clearly resulted not from any inadequacy on the part of his trial counsel but from the overwhelming evidence of his guilt. It was shown without dispute that the appellant produced a pistol and intentionally fired two shots at the victim, hitting him once, after the victim intervened in a domestic quarrel between the appellant and the victim’s daughter. Although the appellant maintained that he fired the shots because the victim was advancing on him with a knife, it was further established without dispute that the victim was hit in the back, which evidence was consistent with the victim’s testimony that he was attempting to walk away from the appellant when the shooting occurred. Moreover, no knife was ever located at the scene. While the appellant’s counsel may have been remiss in failing to move for a severance of the firearm possession charge from the aggravated assault charge, I do not believe there is any reasonable likelihood under these circumstances that the omission contributed to the verdict. Accord Askin v. State, supra. Consequently, I would simply affirm the conviction.

2. Assuming that a remand were appropriate, the correct disposition of the case would not be to affirm the conviction but rather to vacate the denial of the motion for new trial, which, contrary to the first paragraph of the majority opinion, is obviously the order appealed from. It strikes me as inherently contradictory simultaneously to affirm the appellant’s conviction and to remand his case for further proceedings which may ultimately result in the reversal of that conviction.

Decided November 18, 1987.

Theresa M. Clyne, for appellant.

Harry N. Gordon, District Attorney, Kenneth W. Mauldin, Assistant District Attorney, for appellee.


text:
    74473.
    MITCHELL v. MITCHELL et al.
    (363 SE2d 159)
   Carley, Judge.

A series of cases ultimately culminates in this appeal. The series begins with the judgment and decree of divorce issued in 1982 by the Superior Court of Berrien County dissolving the marriage of appellee Mrs. Dana Mitchell and appellant Mr. Richard Mitchell (Divorce Action). The decree in this Divorce Action incorporated a settlement agreement whereby the permanent custody of Mr. and Mrs. Mitchell’s only child was awarded to appellee Mrs. Mitchell and visitation rights were granted to appellant.

Subsequently, appellant filed a complaint requesting a change with regard to his visitation rights (Parental Visitation Rights Action). Appellant was represented in his Parental Visitation Rights Action by an attorney. Appellant’s visitation rights were eventually amended in conformity with a new settlement agreement executed by the parties and entered as an order of the court.

Shortly thereafter, in January of 1984, appellant filed a petition for change of custody (Parental Custody Action). In this Parental Custody Action, the trial court entered an order which did the following: granted temporary custody to appellant on the condition that he not remove the child from Berrien County until further order of the court; granted temporary visitation rights to the maternal grandparents, appellees Mr. and Mrs. Turner; and, set a date for a hearing on permanent custody. Prior to the date set by the trial court for the hearing on permanent custody, however, appellant filed an agreement with the court. This agreement, which was signed by both appellant and appellee Mrs. Mitchell, purported to give permanent custody of the child to appellant. Although this agreement between Mr. and Mrs. Mitchell as to permanent custody was filed with the court, it was never incorporated into an order of the court. No hearing on appellant’s petition for permanent custody was held and, shortly after the change of custody agreement had been filed with the court, appellant left Georgia with the minor child.

Less than six months later, appellees Mr. and Mrs. Turner filed their independent action for grandparents’ visitation rights (Grandparents’ Visitation Rights Action). This Grandparents’ Visitation Rights Action was brought under OCGA § 19-7-3 and appellant was named as the defendant therein. There is a dispute as to whether appellant, who was no longer living in Georgia, was ever served with the petition for grandparents’ visitation rights. However, it is clear from the record that appellant did not appear to contest appellees Mr. and Mrs. Turner’s claim and that the court entered a final order which granted to them the grandparents’ visitation rights that they sought. The attorney who represented appellees Mr. and Mrs. Turner in their Grandparents’ Visitation Rights Action and who has continued to represent them in all subsequent proceedings is the same attorney who represented appellant in his Parental Visitation Rights Action.

Subsequently, in June of 1986, appellee Mrs. Mitchell went to Oklahoma, where appellant was then living with the child. Under circumstances that remain unclear, appellee Mrs. Mitchell returned with the child to Berrien County. Appellant swore out a warrant against appellee Mrs. Mitchell for “child stealing” and in late June of 1986, she was arrested in Berrien County under the Oklahoma warrant.

On June 30, 1986, appellees Mr. and Mrs. Turner filed a pleading which they styled as an amendment to the petition which had initiated their Grandparents’ Visitation Rights Action in 1984. In this amendment, appellees Mr. and Mrs. Turner sought custody of their grandchild (Grandparents’ Custody Action). The trial court granted appellees Mr. and Mrs. Turner temporary custody pending a hearing on permanent custody.

On July 10, 1986, the trial court conducted a hearing and entered an order which purported to consolidate the following series of cases: the original 1982 Divorce Action; appellant’s 1984 Parental Custody Action; and, appellees Mr. and Mrs. Turner’s 1984 Grandparents’ Visitation Rights Action and their 1986 Grandparents’ Custody Action. Thereafter, the trial court entered a final judgment in the consolidated case which granted permanent custody of the child to appellees Mr. and Mrs. Turner and which granted to appellee Mrs. Mitchell and appellant only limited visitation rights. Pursuant to this court’s grant of his application for a discretionary appeal, appellant brings this appeal from the trial court’s order awarding permanent custody of his son to appellees Mr. and Mrs. Turner.

1. Several of appellant’s enumerations of error relate to the issue of the jurisdiction of the trial court.

The Parental Custody Action, which had been filed by appellant in 1984, had only resulted in an award of temporary custody to appellant. “[A] judgment awarding temporary custody is not a final judgment but only interlocutory and does not adjudicate the parental rights of the parties nor suspend them. ...” Adams v. State, 218 Ga. 130, 132-133 (126 SE2d 624) (1962). The agreement between Mr. and Mrs. Mitchell purporting to give permanent custody to appellant was of no legal effect, did not serve to terminate the Parental Custody Action, and appellee Mrs. Mitchell thereafter still retained permanent custody pursuant to the divorce decree. “Where the issue of custody has been previously adjudicated by a court of competent jurisdiction in a divorce case, the children become wards of the court, and no contract of the parties attempting to change custody of the children is binding on the court. [Cits.]” Wood v. Knight, 221 Ga. 746, 748 (1) (146 SE2d 880) (1966). Although the agreement between Mr. and Mrs. Mitchell purporting to change permanent custody to appellant was filed with the court, it was never incorporated into an order of the court. Fortson v. Fortson, 195 Ga. 750 (2) (25 SE2d 518) (1943).

It follows that there was never a final order which terminated the Parental Custody Action. Since five years had not elapsed subsequent to the last order which had been entered in the Parental Custody Action, it follows that that action was still pending before the trial court. Since the Parental Custody Action was still pending, it follows that the trial court had personal jurisdiction over appellant, who initiated that action, and jurisdiction over the subject matter of the permanent custody of the child. “ ‘A court, having obtained jurisdiction, retains it until the final disposition of the cause.’ [Cit.]” Slater v. Slater, 216 Ga. 242, 245 (115 SE2d 353) (1960). See also Brewer v. Williams, 210 Ga. 341 (1) (80 SE2d 190) (1954); Terhune v. Pettit, 195 Ga. 793 (25 SE2d 660) (1943).

2. Appellant enumerates as error the trial court’s grant of permanent custody, contending that appellees Mr. and Mrs. Turner had filed no viable pleadings pursuant to which the trial court was authorized to award them custody.

The only pleading ever filed by appellees Mr. and Mrs. Turner wherein they sought permanent custody of the child was the purported 1986 amendment to the petition which had initiated their 1984 Grandparents’ Visitation Rights Action. A final order in the Grandparents’ Visitation Rights Action had been entered long before appellees Mr. and Mrs. Turner had attempted to amend their petition for those visitation rights so as to seek permanent custody. “[A] pleading may be amended after judgment but only insofar as to make it conform to the evidence. [Cit.]” (Emphasis in original.) Buffington v. Nalley Discount Co., 117 Ga. App. 820 (162 SE2d 212) (1968). Thus, the 1986 amendment to the petition which had initiated the Grandparents’ 1984 Visitation Rights Action could not have initiated a viable Grandparents’ Custody Action.

However, the trial court did not hold the hearing and enter its order as to permanent custody of the child based solely on the Grandparents’ Custody Action. The hearing was held as to all the cases which the trial court had ordered consolidated, including the 1984 Parental Custody Action which had been initiated by appellant against appellee Mrs. Mitchell. As discussed in Division 1, the Parental Custody Action was still pending in the trial court. In a custody suit initiated by one parent against the other, “[t]he trial court has the power to award custody to third persons. ...” Guest v. Williams, 240 Ga. 316 (1) (240 SE2d 705) (1977). See also Cothran v. Cothran, 237 Ga. 487 (228 SE2d 872) (1976); Larson v. Gambrell, 157 Ga. App. 193 (276 SE2d 686) (1981). Since the Parental Custody Action was still pending at the time of the hearing, it follows the trial court had the legal authority to award permanent custody to appellees Mr. and Mrs. Turner notwithstanding the fact that they themselves had not initiated their own viable action seeking custody.

3. Appellant enumerates the grant of permanent custody to appellees Mr. and Mrs. Turner as erroneous for lack of sufficient evidence.

“[A]n award of child custody to a third party must be based upon more than the ‘best interests’ of the child because such an award is in derogation of the right to custody of the parent, in whose custody the law presumes the child’s best interest will be served. Thus, it is only when the present unfitness of the parent is established by clear and convincing evidence that the trial judge is authorized to consider an award of custody to third parties.. [Cit.] Therefore, if appellant has demonstrated that there has been a change in condition justifying a change in his child’s custody, he is entitled to that custody absent a finding that he is ‘unfit.’ [Cit.]” Larson v. Gambrell, supra at 194. “The law contemplates that one of the natural parents will be awarded custody of the child unless the present unfitness of the parents is established by clear and convincing evidence at the hearing on permanent custody. Only then is the trial court authorized to consider an award of custody to third parties.” Childs v. Childs, 237 Ga. 177, 178 (227 SE2d 49) (1976). See also Blackburn v. Blackburn, 249 Ga. 689 (292 SE2d 821) (1982).

The trial court’s order granting permanent custody to appellees Mr. and Mrs. Turner contains a finding that both appellee Mrs. Mitchell and appellant are presently unfit. Compare Childs v. Childs, 237 Ga. 177 (227 SE2d 49) (1976) and 239 Ga. 304 (236 SE2d 646) (1977); Larson v. Gambrell, supra. However, the order erroneously fails to state that the trial court applied the proper standard of “clear and convincing” evidence in finding that present parental unfitness. See In re R. L. Y., 181 Ga. App. 14 (351 SE2d 243) (1986). “The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test.” In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). “[B]ecause the trial court did not make it clear that it applied the required [evidentiary] standard in this case, the order . . . must be reversed and the case remanded for further findings [and conclusions] by the trial court applying the correct standard.” In re R. L. Y., supra at 17.

To facilitate the entry of the new order, we reiterate the following: Custody must be awarded to one of the natural parents, either appellee Mrs. Mitchell or appellant, unless there is clear and convincing evidence that both are presently unfit. If the trial court finds there has been a change in condition justifying a change in custody from appellee Mrs. Mitchell but it cannot find that there is clear and convincing evidence of appellant’s present parental unfitness, appellant must be awarded custody. That the trial court may be of the opinion that appellees Mr. and Mrs. Turner possess a superior fitness to appellant is immaterial. “A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. [Cit.] Only under compelling circumstances found to. exist by clear and convincing proof may a court sever the parent-child custodial relationship. . . . The ability of a parent to raise his or her child may not be compared to the superior fitness of a third person. That ability must be examined in a scrutinous, abstract light. Only in custody disputes between parents may a court determine which party is more suitable to be awarded custody, this being the so-called ‘best interest of the child’ test.” Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981). If, after the trial court’s entry of a new order, any losing party contends that the new findings and conclusions are not consistent with this opinion, such party may then avail himself of the provisions of OCGA § 5-6-35 and apply to this court for a discretionary appeal.

4. Appellant filed a motion requesting the trial court to dismiss all pleadings which had been filed by appellees’ attorney. As the grounds for this motion, appellant asserted that appellees’ attorney had a disqualifying conflict of interest in that he is the same attorney who had represented appellant in his 1983 Parental Visitation Rights Action. From July 1984 to the present, that attorney has represented appellees Mr. and Mrs. Turner and he has also represented appellee Mrs. Mitchell in the various visitation and custody actions. Appellant enumerates as error the trial court’s refusal to grant his motion.

Standard 69 of the Standards of Conduct of the State Bar of Georgia provides: “A lawyer shall not represent a client whose interests are adverse to the interests of a former client of the lawyer in any matter substantially related to the matter in which the lawyer represented the former client unless he has obtained written consent of the former client after full disclosure.” Appellant has not given his written consent to his former attorney’s representation of appellees. To the contrary, he has taken every opportunity to protest the participation of the attorney in the proceedings as counsel for appellees. There is no question that the matters in which the attorney has represented and is representing appellees is substantially related to the matter in which he formerly represented appellant, to wit: rights in and to the child. However, having already held in Division 2 that the Grandparents’ Visitation Rights Action is long since over and that the pleading which initiated the Grandparents’ Custody Action was both invalid and superfluous, we need not determine whether the dismissal of all pleadings filed on behalf of appellees by the attorney is a proper means of securing enforcement of Standard 69. Nevertheless, in any future proceedings in this or any other case involving the issue of the respective rights of appellant and appellees to and in the child, the trial court is instructed that, upon a proper motion by appellant, the attorney should be disqualified from appearing as counsel for appellees, insofar as there is an obvious conflict of interest.

Decided November 5, 1987

Rehearing denied November 19, 1987

Galen P. Alderman, Elsie H. Griner, for appellant.

William S. Perry, for appellees.

5. Appellant also enumerates as error the trial court’s failure to dismiss various contempt citations against him. However, the trial court has never denied appellant’s motions to dismiss the contempt citations. It has simply never ruled on them. “ ‘This court sits to review rulings of the trial courts, and it will not pass upon questions on which no ruling has ever been made by the trial judge.’ [Cits.]” (Emphasis in original.) Ballard v. Waites, 194 Ga. 427, 430 (5) (21 SE2d 848) (1942). The trial court having as yet made no ruling on any of the citations for contempt or the motions to dismiss them, the merits of this enumeration cannot be addressed.

6. The order granting permanent custody to appellees Mr. and Mrs. Turner is reversed and the case is remanded to the trial court for the entry of a new order which makes a determination as to custody which is not inconsistent with this opinion.

Judgment reversed and case remanded with direction.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    74821.
    MENDEZ v. THE STATE.
    (363 SE2d 262)
   Banke, Presiding Judge.

Alejandro Mendez was indicted, tried by a jury and convicted of a violation of the Georgia Controlled Substances Act (trafficking in cocaine). He appeals from the denial of his motion for new trial. Held:

1. In his first enumeration of error, the appellant contends the trial court erred in denying his motion for directed verdict of acquittal. The cocaine was seized from an automobile which the appellant was driving on 1-75 in Whitfield County; Georgia. The evidence showed that the appellant had rented this vehicle the previous day in Miami, Florida. Three bags of cocaine were found under the back seat, two of which were wrapped in a Miami Herald newspaper dated the previous day, i.e., the day the automobile was rented. The appellant argues that the mere presence of the contraband under the back seat of the car was insufficient to sustain a conviction where there was an opportunity fpr access by others, including a passenger who was also arrested and indicted but who failed to appear for the trial of the case.

The equal access rule, “as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. [Cits.]” Castillo v. State, 166 Ga. App. 817, 821-822 (305 SE2d 629) (1983). However, “[i]f two or more persons shared actual or constructive possession of a thing, possession is joint.” Thomas v. State, 153 Ga. App. 686, 689 (266 SE2d 335) (1980).

Decided November 3, 1987

Rehearing denied November 19, 1987

John M. Comolli, Marsha L. Sutherland, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

As it was shown that the appellant was both the driver and the renter of the car, and as it was evident that the cocaine was placed under the back seat no earlier than the day he rented the vehicle, we hold that a rational trier of fact would have been authorized to conclude beyond a reasonable doubt that he was in knowing possession of the contraband, either by himself or jointly with the passenger. Consequently, we hold that the trial court did not err in denying the appellant’s motion for a directed verdict.

2. The appellant contends that the search which preceded the seizure of the contraband was unlawful in that the arresting officer employed deceitful means to induce him to give his written consent to the search. However, based upon our examination of the transcript of the hearing on the appellant’s motion to suppress, we conclude that the officer’s testimony supported the trial court’s determination that the appellant voluntarily consented to the search of the vehicle. Consequently, we hold that the court did not err in denying the motion to suppress. See Weaver v. State, 178 Ga. App. 91, 92 (341 SE2d 921) (1986).

3. The appellant enumerates as error the failure of the trial court to charge the jury that the flight of the passenger could be considered evidence of his (the appellant’s) innocence. It is, of course, the law of this state that the flight of a defendant is a factor which the jury is authorized to take into account in determining his guilt or innocence. See Carter v. State, 180 Ga. App. 269 (349 SE2d 19) (1986). However, we are aware of no authority, and none is offered by the appellant, which would suggest that, as a general legal principle, the flight of one co-defendant constitutes evidence of the innocence of another. While the appellant’s counsel was certainly free to argue this theory to the jury, as he in fact did, the court clearly did not err in failing to give such a charge.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74904.
    CAMPBELL v. THE STATE.
    (363 SE2d 293)
   Carley, Judge.

Appellant was indicted on three counts of aggravated assault and was tried before a jury in the Superior Court of Cobb County. The jury returned verdicts of guilty on all three counts. The trial court denied appellant’s motion for new trial and he appeals from the judgments of conviction and sentences entered on the jury verdicts.

The sole enumeration is that the trial court erred in “refus[ing] to inquire into the Specific Selection procedures of the all white jury Venire.” Appellant did make a timely challenge to the array. However, the trial court did not refuse to consider that challenge. Instead, appellant failed to offer any evidence to support his challenge, relying instead upon the mere observation that there were no blacks included among the forty-two potential jurors. “The burden is upon the defendant challenging the array of a jury to establish a prima facie case that there has been systematic exclusion of a distinct class of citizens. [Cit.]” Orkin v. State, 236 Ga. 176, 191 (4) (223 SE2d 61) (1976). “ ‘Purposeful discrimination is not shown by evidence that a single panel from whom 12 are chosen for the jury contained a disproportionately small percentage of women or blacks compared to the population at large.’ [Cits.]” McGinnis v. State, 135 Ga. App. 843, 844 (1) (219 SE2d 485) (1975). “In order to show systematic exclusion, the defendant must demonstrate sufficiently to establish a prima facie case that (1) the sources from which the jury list was drawn are tainted in that they provide the opportunity for discrimination, and (2) that use of these sources resulted in a substantial disparity between the percentages of the separate class on the jury list and in the population as a whole. [Cits.] Implicit in these requirements is that the defendant has the burden of showing that the group he seeks to prove has been systematically excluded constitutes a distinct and separate class of citizens. [Cits.]” Orkin v. State supra at 191 (4). Here, appellant made no evidentiary showing such as would factually distinguish our Supreme Court’s recent holding in Pope v. State, 256 Ga. 195, 196 (1) (345 SE2d 831) (1986): “[The] contention that blacks are unconstitutionally underrepresented on the Cobb County traverse jury list is answered by Cook v. State, 255 Ga. 565 (11) (340 SE2d 843) (1986), wherein we found the underrepresentation of blacks on the Cobb County jury lists ... to be constitutionally insignificant whether analyzed absolutely or comparatively.”

Appellant’s reliance on Batson v. Kentucky, 476 U. S. _ (106 SC 1712, 90 LE2d 69) (1986), is misplaced. That case dealt with the use of peremptory challenges to exclude blacks, who had been called for jury duty, from actually serving as jurors. It did not deal with a challenge to the array itself. Appellant had “no right to a jury selected from a list which perfectly mirrors the percentage structure of the community. What is required is a list which represents a fair cross-section of the community and which is not the product of intentional racial or sexual discrimination. [Cit.]” (Emphasis in original.) Cook v. State, supra at 573 (11). Appellant having failed to make a prima facie showing that the all white venire was not a fair cross section of Cobb County and was a product of intentional racial discrimination, the trial court did not err overruling appellant’s challenge.

Decided November 6, 1987

Rehearing denied November 19, 1987

Linda B. Borsky, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74675.
    HOLCOMB v. THE STATE.
    (363 SE2d 320)
   McMurray, Presiding Judge.

Defendant was arrested by a Troup County deputy sheriff for the offenses of improper passing, possession of a firearm during commission of a felony, driving under the influence (DUI), possession of more than one ounce of marijuana and possession of drug related objects. A preliminary hearing on the charges was held in the Magistrate’s Court of Troup County. At that hearing the testimony revealed that defendant was driving an automobile stopped for improper passing and that the various contraband was found during a subsequent search of the automobile. At the conclusion of the preliminary hearing, the firearms charge was dismissed and the four remaining charges were bound over to the next term of superior court. (The drug paraphernalia charge was also dropped at some later time.)

Plea negotiations between defense counsel and the district attorney ensued regarding the remaining charges. Two of the offenses, the DUI and the improper passing, appeared on the calendar of the State Court of Troup County. Defendant entered a guilty plea on these misdemeanor charges.

Subsequently defendant filed his “motion in autrefois convict” contending that the pleas to the misdemeanor charges bar any prosecution for the felony possession of marijuana. Defendant appeals from the denial of his “motion in autrefois convict” based upon his claim of double jeopardy. Defendant’s plea to the DUI charge was for driving under the influence of alcohol or drugs, and that the laboratory tests indicate that defendant’s blood was negative for ethyl alcohol but positive for marijuana. Held:

In McCannon v. State, 252 Ga. 515 (315 SE2d 413), defendant was stopped while operating a car on the public highway by two State Patrol officers. The indictment in that case alleged one of the troopers leaned into the car and while he was doing so defendant drove off causing the trooper to fall to the highway, injuring him. Count 2 of the indictment alleged that as defendant drove away he drove over the other trooper’s foot, injuring him. Defendant was arrested on charges of DUI, possession of marijuana and assault on an officer. The DUI charge was dropped because of negative chemical test results and plea negotiations were begun by counsel for defendant and the district attorney.

A tentative plea bargain was reached in which defendant McCannon agreed to enter a plea of guilty to possession of marijuana and join the armed forces in exchange for dropping of the assault charges. The plea bargaining agreement was not consummated.

On February 26, 1982, an accusation was brought in Oglethorpe Superior Court charging defendant McCannon with the offense of misdemeanor possession of marijuana. On May 18, 1982, an indictment was returned charging defendant McCannon with two counts of aggravated assault upon an officer. On June 1, 1982, defendant McCannon entered a plea of guilty to the accusation for possession of marijuana. On August 27, the guilty plea was withdrawn and a plea of nolo contendere was entered, whereupon defendant McCannon was sentenced the same day. Subsequently, when defendant McCannon was notified that he would be arraigned on the indictment alleging aggravated assault upon an officer, a plea of statutory double jeopardy was filed arguing that the possession of marijuana offense and the aggravated assault upon an officer offense arose from the same conduct and must have been prosecuted in a single prosecution because both were known to the district attorney and within the jurisdiction of Oglethorpe Superior Court. Defendant McCannon’s plea of double jeopardy was rejected by the Oglethorpe Superior Court and by this court. In McCannon v. State, 252 Ga. 515, 518, supra, our Supreme Court in reversing our decision at 168 Ga. App. 471 (309 SE2d 636), provided a final resolution of the argument raised by the defendant McCannon, and set forth for future use an outline of our statute governing double jeopardy. As to the facts of that case, the Supreme Court noted that “both crimes were known to the district attorney at the time of the first prosecution. They were within the jurisdiction of a single court. They arose out of the same conduct or transaction. Thus, they come within the provisions of OCGA § 16-1-7 (b) (Code Ann. § 26-506). Further, the second prosecution is barred by OCGA § 16-1-8 (b) (1) (Code Ann. § 26-507) under the division of our outline designated (ii).” We now address the application of the McCannon v. State, 252 Ga. 515, 518, supra, outline to the case sub judice.

Guided by the outline of relevant statutes found in McCannon v. State, 252 Ga. 515, 517, 518, supra, we note that OCGA § 16-1-7 (b) provides that: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.” Also germane to our decision is that portion of OCGA § 16-1-8 (b) (1) identified as subsection (ii) of the McCannon outline which provides, “A prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution: (1) resulted in either a conviction or acquittal and . . . (ii) is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge) . . .” McCannon v. State, 252 Ga. 515, 517, supra.

In the case sub judice, it is uncontroverted that the prosecution had knowledge of all of the charges and that all are within the jurisdiction of a single court. The issue presented is whether the felony possession of marijuana charge arises from the same conduct as the misdemeanor traffic charges. The State’s argument that it does not rests largely upon Rogers v. State, 166 Ga. App. 299 (304 SE2d 108). A problem arises in the fact that Rogers is predicated upon Trimble v. State, 156 Ga. App. 9 (274 SE2d 10). Both of these cases were decided prior to the decision in McCannon v. State, 252 Ga. 515, 519, supra, which overruled Trimble and noted that it failed to give consideration to the above-stated subsection (ii) of the McCannon outline while relying entirely upon subsection (iii). Subsection (iii) of the McCannon outline provides: “A prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution: (1) resulted in either a conviction or acquittal and . . . (iii) is for a crime which involves the same conduct, unless (A) each prosecution requires proof of a fact not required on the other prosecution or (B) the crime was not consummated when the former trial began.” McCannon v. State, 252 Ga. 515, 517, 518, supra. A reading of Rogers v. State, 166 Ga. App. 299, supra, shows that it follows Trimble in failing to consider the statutory language set forth in subsection (ii) of the McCannon outline. Therefore, we decline to apply Rogers to the case sub judice.

Returning to the issue as stated, we find that the felony possession of marijuana offense arose from the same conduct or transaction as the misdemeanor traffic offenses. Thus, the prosecution of defendant on the felony possession of marijuana charge is barred. McCrary v. State, 171 Ga. App. 585 (320 SE2d 567); State v. McCrary, 253 Ga. 747 (325 SE2d 151); McCannon v. State, 252 Ga. 515, supra. See also Breland v. State, 135 Ga. App. 478, 479 (218 SE2d 153); Frazier v. State, 138 Ga. App. 640, 642 (227 SE2d 284); Keener v. State, 238 Ga. 7, 8 (230 SE2d 846).

Decided November 19, 1987.

Lee R. Hasty, for appellant.

Arthur E. Mallory III, District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

Judgment reversed.

Sognier and Beasley, JJ., concur.