text:
    A02A0417.
    DODSON v. DEAN.
    (567 SE2d 348)
   Ruffin, Judge.

This appeal originated from a divorce action between Thomas A. Dean and Diane Dodson filed in the Superior Court of Cherokee County. Before the final divorce hearing, the parties moved to recuse the trial judge on the basis that Dodson’s attorney had a lawsuit pending against the judge. The judge denied the motion, ruling that it was untimely and that the affidavit was insufficient. We granted Dodson’s application for interlocutory appeal, and for reasons that follow, we affirm.

The record shows that, on May 31, 2001, the trial court entered a rule nisi scheduling the final divorce hearing for July 16, 2001. On July 11, 2001, the parties filed a “Joint Motion for Disqualification arid Recusal” of the trial judge, the Honorable Frank C. Mills III, and all the other judges of the Superior Court of Cherokee County. Attached to the motion is an unnotarized pleading that purports to be an “affidavit” and brief supporting the motion.

The pleading states in relevant part that Dodson’s attorney, Luann Evans, had filed a civil action in the Cherokee County Superior Court “seeking a declaration that the Family Court as set up by [Judge Mills] is unconstitutional and illegally constituted [and] that [Judge Mills] has violated the Georgia Constitution.” The pleading further alleges that Judge Mills “must have personal feelings about [Dodson’s] counsel. Such feelings preclude impartiality toward [Dodson’s] counsel and thereby against [Dodson] herself.” Dodson also sought to disqualify the remaining superior court judges on the ground that her counsel had also accused them of illegally holding their positions. The trial judge denied the motion, concluding that it was untimely filed and that there was no affidavit attached. We find no error in this ruling.

Recusal motions are governed by Uniform Superior Court Rule (“USCR”) 25. USCR 25.1 requires that

[a]ll motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification, and not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.

When a trial judge is confronted with such motion, he must

temporarily cease to act upon the merits of the matter and shall immediately determine [(1)] the timeliness of the motion and [(2)] the legal sufficiency of the affidavit, and [(3)] make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.

However, “[i]f all three conditions precedent set forth in USCR 25.3 are not met, the trial judge shall deny the motion on its face as insufficient, and there is no need for the trial judge to assign the motion to another judge to hear.”

In this case, it is clear that Dodson’s motion did not meet all three conditions precedent. Dodson acknowledges in her appellate brief that counsel filed the complaint against Judge Mills on June 8, 2001. Dodson’s disqualification motion, filed July 11, was untimely because it was not filed within five days after she learned of these grounds, and it was filed later than ten days before the July 16 final hearing. Although Dodson contends that the judge should have nevertheless recused himself sua sponte, this does not explain her delay in moving for disqualification pursuant to the Uniform Superior Court Rules.

While untimeliness of the motion would have justified the court’s denial of Dodson’s motion, we also note that Dodson’s purported “affidavit” was not notarized. Dodson argues that the missing attestation is without consequence because “the Affiants were the three attorneys themselves, [so] no notary should be required.” But Dodson cites no authority supporting this proposition, and we have held that

[a]ffidavits must conform to OCGA § 9-11-56 (e), which is a codification of the common law requirements as to affidavits. A complete affidavit must satisfy three essential elements: (a) a written oath embodying the facts as sworn to by the affiant; (b) the signature of the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.

Accordingly, the lack of an attestation rendered the affidavit legally insufficient.

Finally, Dodson asserts that, despite the deficiencies, the trial judge should have recused himself sua sponte under Canon 3 (E) of the Code of Judicial Conduct. Canon 3 (E) (1) generally requires judges to “disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.” Subsections (a) through (c) of Canon 3 (E) (1) enumerate specific instances where disqualification is required. Dodson merely asserts that Judge Mills should have acted sua sponte because his “impartiality can be and was reasonably questioned.” However, Dodson cites no authority requiring sua sponte recusal under this standard, and we have generally ruled that such self-enforcement is not required.

Furthermore, although self-enforcement may be required where the reason for recusal is based on one of the specific instances enumerated in subsections (a) through (c), Dodson has not shown that any of those instances apply in this case. Among the circumstances addressed in these subsections, the only one that could conceivably apply would arise where “the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” But Dodson has pointed to no evidence that the trial judge harbored any such bias or prejudice against her attorney, and the court’s order reflects that the “judge in his own mind . . . considered the issue of recusal and [found] no reason to do so.” Accordingly, we find no error.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

Decided June 19, 2002.

Luann M. Evans, for appellant.

Michael E. McLaughlin, Gilder H. Howard, Sr, for appellee.

       In. her appellate brief, Dodson states that counsel’s lawsuit alleged that Judge Mills “consciously abused his judicial power, and acted unethically and improperly,” and that the suit sought “punitive damages against the judge personally as well as attorneys fees.” Dodson, however, has not cited the record in support of these contentions, and counsel’s complaint against Judge Mills is not included in the record. It is well established that “factual assertions contained in the parties’ briefs unsupported by evidence of record cannot be considered in the appellate process.” Boatright v. State, 192 Ga. App. 112, 115 (5) (385 SE2d 298) (1989).

       USCR 25.3.

        Gibson v. Decatur Fed. Sav. &c. Assn., 235 Ga. App. 160, 166 (3) (508 SE2d 788) (1998).

       This acknowledgment constitutes a binding admission in judicio. See Ray v. Scottish Rite Children’s Med. Center, 251 Ga. App. 798, 799, n. 2 (555 SE2d 166) (2001).

       See USCR 25.1.

       See Pope v. State, 257 Ga. 32, 35 (2) (b) (354 SE2d 429) (1987) (holding that appellant’s “disqualification argument is . . . untimely and need not be further considered by this Court on appeal”) (punctuation omitted).

       (Citation omitted.) Roberson v. Ocwen Fed. Bank, 250 Ga. App. 350, 352 (2) (553 SE2d 162) (2001).

       See id.; Smith v. Adamson, 226 Ga. App. 698, 699 (1) (487 SE2d 386) (1997) (“motion to recuse . . . was properly denied without a hearing before another judge, since [the movant’s] supporting ‘affidavit,’ which was not signed or notarized, was in any case legally insufficient to give rise to reasonable doubts about [the judge’s] impartiality”).

       See Barlow v. State, 237 Ga. App. 152, 156 (3) (513 SE2d 273) (1999); In re Brant, 230 Ga. App. 283, 285 (2) (496 SE2d 321) (1998); In the Interest of A. L. L., 211 Ga. App. 767, 769 (4) (440 SE2d 517) (1994).

       See Pope, supra at 34 (considering similar federal statute governing disqualification, 28 USC § 455, Court recognized that “subsection (b) enumerates specific disqualification standards. This subsection is meant to be self-enforcing, and it is the trial judge’s duty to disqualify himself as soon as he is aware that the grounds exist”) (citations and punctuation omitted); Lynott v. State, 198 Ga. App. 688, 689 (3) (402 SE2d 747) (1991) (addressing specific disqualification instances in Canon 3 (E) that were formerly addressed in Canon 3 (C), court ruled that “[t]his was not an instance where any violation of the specific standards of Canon 3 (C) of the Georgia Code of Judicial Conduct occurred, which would require sua sponte disqualification”).

       Georgia Code of Judicial Conduct Canon 3 (E) (1) (a).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A02A0458.
    ADES v. WERTHER.
    (567 SE2d 340)
   Ruffin, Judge.

Norman Werther sued Gary Ades and Marketing Spectrum, Inc. (“MSI”) for breach of contract. Werther subsequently dismissed MSI and proceeded against Ades, adding three fraud claims and a claim of unjust enrichment. The parties filed cross-motions for partial summary judgment: Ades on Werther’s fraud claims, and Werther on his claims for breach of contract and unjust enrichment. The trial court granted Werther’s motion with respect to his claim of unjust enrichment and denied summary judgment on the remaining claims. On appeal, Ades challenges this order. For reasons that follow, we affirm in part and reverse in part.

“Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” In reviewing the grant or denial of a motion for summary judgment, we conduct a de novo review and view the evidence in the light most favorable to the nonmovant.

So viewed, the record demonstrates that Ades was the executive vice president of MSI. In 1993, Sally Irle sued MSI, Ades, and Illeene Ruben, the president of MSI. The trial court entered a consent judgment in favor of Irle, which held MSI, Ades, and Ruben (collectively “the defendants”) jointly and severally liable for the sum of $120,000. To satisfy this judgment, the parties agreed that the defendants would pay Irle a lump sum of $30,000, followed by 30 monthly payments of $2,244.60. They further agreed that if the defendants failed to fulfill their obligations, “the entire amount of the Judgment shall be immediately due and payable,” less any amount already paid to Irle.

In February 1996, the defendants were late in paying Irle, and she filed a garnishment affidavit. In order to lift the garnishment, the defendants were required to pay approximately $80,000 into the registry of the court. However, MSI lacked the funds and was unable to obtain a loan. Thus, Ades contacted Werther, a family friend, to obtain the money. According to Werther, “Ades said that he had an employee that was suing him personally, and that he needed the money as collateral.” Ades also said “that he would repay this money within one month since the case would be resolved by then.” In his affidavit, Werther stated: “Based on Ades’ representation that he would pay back this loan within one month and that the money would never be disbursed from the bank account, I decided to loan Ades the money.”

Werther wired $82,000 to MSI’s bank account, $81,220.04 of which was paid into the registry of the court. The money subsequently was paid to Irle to satisfy the balance of the consent judgment owed by MSI, Ades, and Ruben.

A month after lending Ades the money, Werther began calling to inquire when he would be repaid. Werther testified that “Ades informed [him] that the case was delayed but there was nothing to worry about.” A year later, Ades told Werther that the money had been used to satisfy the Irle judgment. According to Werther, Ades “apologized and assured [Werther] that he was personally responsible” for the debt, which he would pay back at a rate of $1,000 per week. Werther then received two $500 checks and a letter from MSI, promising that the loan would be repaid at a rate of $500 per week. In 1998, MSI filed for bankruptcy, but Werther was not listed as a creditor of the company. According to MSI’s chief financial officer, Jeffrey Miller, Werther was not listed as a creditor because the loan was to Ades, personally, rather than to MSI.

Evidently, Werther received no more money from MSI or Ades, and he sued both, alleging breach of contract. Werther subsequently dismissed MSI without prejudice, choosing to proceed solely against Ades. In his amended complaint, Werther added claims for unjust enrichment and fraud.

Ades moved for partial summary judgment on Werther’s fraud claims, and Werther filed a cross-motion for partial summary judgment on his claims for breach of contract and unjust enrichment. The trial court granted Werther’s motion with respect to his claim of unjust enrichment and denied the remaining claims. Ades appeals, contending that the trial court erred in (1) granting Werther’s motion as to unjust enrichment; and (2) denying Ades’ motion as to the fraud claims.

1. “ An action for unjust enrichment lies when money is paid on the debt of another, with his consent and approval, where the person making the payment was obligated to make the payment, and no consideration or benefit inures to his benefit, and credit for such payments inures to the benefit of the other party.’ ” However, the theory of unjust enrichment applies only when there is no legal contract. Thus, implicit in the trial court’s order is a finding that, as a matter of law, no contract existed. We disagree.

Werther’s primary cause of action against Ades is for breach of contract. Under OCGA § 13-3-1, “[t]o constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” Here, the undisputed evidence shows that Werther agreed to lend money with the expectation of being repaid. Thus, there appears to be a contract. Indeed, Ades does not dispute the existence of a contract, but merely maintains that he, personally, was not a party to it.

In its order granting summary judgment on Werther’s unjust enrichment claim, the trial court provides no basis for its conclusion that there was no enforceable contract. Arguably, the trial court found that it came within the statute of frauds, which requires a written agreement for “[a]ny commitment to lend money.” However, this case does not involve a commitment to lend money, but money already lent. And “[t]he provisions of the Statute of Frauds do not extend to cases where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.”

We can find no basis for summarily rejecting Werther’s contract claim, and neither the trial court nor the parties provide any insight as to why the contract fails as a matter of law. “[W]here there is a conflict in the evidence as to the existence of an oral contract or as to its terms, the matter must be submitted to a jury for resolution.” Here, there is such conflict, as the parties hotly contest whether Ades, personally, was a party to the agreement. Under these circumstances, there is a jury issue, and the trial court erred in ruling, albeit implicitly, that no contract existed between Werther and Ades. It follows that the trial court erred in granting Werther summary judgment on his unjust enrichment claim.

2. In his complaint, Werther alleges that Ades fraudulently induced him to make the loan by telling him that the loan would be repaid in one month and that the funds would be held in a bank account and not disbursed. Werther further alleges that Ades fraudulently induced him to forbear in collecting the loan by sending Werther a letter acknowledging that MSI would repay the loan. Ades contends that he is entitled to judgment as a matter of law as to all fraud allegations.

In reviewing such contention, “[w]e evaluate whether some evidence supports the five elements of fraud: (1) false representation by defendant; (2) scienter; (3) intent to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” The absence of a single element warrants summary judgment.

(a) Ades contends that he is entitled to summary judgment based upon the lack of evidence that any of his alleged representations to Werther, which involved promises to perform some act in the future, were fraudulent at the time made. We agree with Ades that, to sustain a claim of fraud under these circumstances, there must be some evidence that Ades made the alleged promises to Werther with a present intent not to perform. However, we disagree with Ades that there is insufficient evidence to submit the issue to a jury.

As fraud is inherently subtle, a claimant may survive summary judgment if there is slight, circumstantial evidence supporting a fraud claim. “It is peculiarly the province of the jury to pass on these circumstances showing fraud.” The record, viewed favorably to Werther, shows that Ades obtained money from Werther based upon a promise to repay the money in one month. At that time, however, Ades was in financial difficulty. According to Miller, neither MSI nor Ades had the assets to repay the money. Thus, there is some evidence that, to obtain the loan, Ades promised to repay the money in one month with the present intent not to perform, creating a jury issue on Werther’s fraud claim.

Ades also claims he is entitled to summary judgment based upon Werther’s “failure to conduct any due diligence whatsoever” prior to lending the money. Ades reasons that such failure precludes Werther from alleging justifiable reliance. Again, we disagree.

Justifiable reliance, more often than not, is a jury issue. If, however, the means of ascertaining the relevant facts are equally available to all parties, summary judgment may be appropriate. That is not the case here. According to Werther, Ades was frantic when he called to request a loan. When Werther attempted to delay providing the money, Ades said the situation was urgent and that he needed the funds immediately. When Werther agreed to send Ades a check, Ades indicated that processing a check would take too long, and he asked Werther to wire the money to the bank account. Under these circumstances, there is, at the very least, a jury issue on whether Werther was justified in relying on Ades’ representations in loaning the money.

Finally, Ades contends that he is entitled to summary judgment because “‘[firaud cannot be predicated on a promise which is unenforceable at the time it is made.’ ” Ades characterizes Werther’s claim as a guaranty agreement, under which Ades promised to repay Werther’s loan to MSI. As a guaranty must be in writing to be enforceable, Ades contends the agreement is void as a matter of law. However, Werther’s complaint alleges that he loaned the money to Ades, personally. Thus, Ades’ guaranty argument is misplaced. It follows that the trial court did not err in denying Ades’ motion for summary judgment on this basis.

(b) Ades also asserts that he is entitled to summary judgment on Werther’s claim that Ades fraudulently induced him to forbear collecting the debt. Although Werther’s claim is not entirely clear, he apparently contends that Ades fraudulently induced him to delay filing suit by sending a letter indicating that MSI would repay the loan at a rate of $500 per week. Again, given the evidence that Ades knew that MSI was incapable of repaying such loan, we agree with the trial court that there is sufficient evidence to submit this fraud issue to a jury. And, to the extent Ades contends that there is no evidence of damages, we disagree. In response to Ades’ motion for summary judgment, Werther asserted that his damage was the additional interest that would have accrued had he not delayed in filing suit. Thus, there is some evidence from which a jury could infer damages, and the trial court did not err in denying Ades’ motion for summary judgment as to this count.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Barnes, J., concur.

Decided June 19, 2002.

Friedman, Dever & Merlin, Hayes M. Dever, Michael F. O’Neill, Alison K. Arce, for appellant.

Peter J. Ross, for appellee.

       Werther also alleged a claim for litigation expenses, but that claim is not at issue on appeal.

       (Punctuation omitted.) Jackson v. Ford, 252 Ga. App. 304 (1) (555 SE2d 143) (2001).

       See id.

        Fleming v. C & S Nat. Bank, 243 Ga. 144, 146 (1) (253 SE2d 76) (1979).

       See Phillips v. Blankenship, 251 Ga. App. 235, 236 (2) (554 SE2d 231) (2001); Smith Svc. Oil Co. v. Parker, 250 Ga. App. 270, 272 (4) (549 SE2d 485) (2001).

       OCGA § 13-5-30 (7).

       (Punctuation omitted.) Rose v. Cain, 247 Ga. App. 481, 484 (3) (544 SE2d 453) (2001).

       (Punctuation omitted.) Dover v. Mathis, 249 Ga. App. 753, 754 (549 SE2d 541) (2001).

       See id.

       See Mabry v. Pelton, 208 Ga. App. 891, 893 (3) (432 SE2d 588) (1993).

       Although Werther alleges this conduct constitutes two separate counts of fraud, both counts are based upon the same loss - the $82,000 loan. Thus, we address the two counts as one claim of fraud.

        Lakeside Investments Group v. Allen, 253 Ga. App. 448, 450 (559 SE2d 491) (2002).

       See id.

       See Buckley v. Turner Heritage Homes, 248 Ga. App. 793, 795 (3) (547 SE2d 373) (2001).

       See Fann v. Mills, 248 Ga. App. 460, 464 (2) (546 SE2d 853) (2001).

       (Punctuation omitted.) Id.

       See Dyer v. Honea, 252 Ga. App. 735, 740 (3) (b) (557 SE2d 20) (2001).

       See id.

       See OCGA § 13-5-30 (2).

       Werther also contends that “Ades sent this letter with the intention of deceiving Plaintiff into believing that. . . Ades was not personally liable for said loan.” As Werther has consistently maintained that Ades is liable on the loan, we fail to see how this statement either induced or was intended to induce any action on Werther’s part.


author: Mikell, Judge.

text:
    A02A0580.
    OWENBY v. HOLLEY et al.
    (567 SE2d 351)
   Mikell, Judge.

In this action for specific performance, we reverse the grant of summary judgment to the defendants-appellees and affirm the denial of the plaintiff-appellant’s motion, holding that genuine issues of material fact remain for trial. The relevant facts follow.

In 1982, George L. Owenby executed a warranty deed conveying property to his sister, Lucy O. Mayfield, in exchange for $25,000. In the deed, Owenby reserved “an option to re-purchase property for $25,000.00 if grantee or her heirs decide to resale [sic] the property.” In connection with the sale, Mayfield executed a promissory note in the amount of $22,000. The note contains a clause stating: “Should I or my heirs sale [sic] said property, George L. Owenby shall have first potion [sic] to purchase said property for $25,000.00.” Contemporaneously with the transaction, Owenby and Mayfield executed the following document (“the agreement”):

As part of the consideration and the parties [’] mutual promises and agreement, party of the first part binds herself; her heirs and assigns to execute to said party of the second part his heirs and assigns a good and sufficient Warranty Deed upon the death of party of first part for the sum of $25,000.00 or for whatever principal amount has been paid to the party of the second part.

The agreement is signed under seal by Mayfield as party of the first part and Owenby as party of the second part.

Mayfield resided on the property until her death in November 1998. Shortly before she died, Mayfield executed a quitclaim deed transferring the property to the Lucy Owenby Mayfield Separate Property Trust (“Trust”). In July 1999, the trustee, Dorothy Holley, who is Mayfield’s daughter and executrix of her estate, conveyed the property via a quitclaim deed to herself and her sister, Lucy Ann Smith.

Owenby claimed he was entitled to purchase the property upon Mayfield’s death. When her heirs disagreed, Owenby filed suit, seeking specific performance of the agreement, cancellation of the quitclaim deeds, and attorney fees. Owenby moved for summary judgment, attaching the affidavit of attorney J. W. Morgan, who averred that Mayfield contacted him in 1982 to conduct the sale of the property; that he prepared the documents for the transaction, which included a warranty deed, security deed, promissory note, and resale agreement; and that

[t]here was no question at that time as to the intention of the parties, specifically that Mrs. Lucy O. Mayfield, wished to have and Mr. George L. Owenby, wished her to have what I believe to be, the old home place . . . during her life or until she was ready to dispose of same. That she was to pay him the sum of $25,000.00 as setforth [sic] in the deed executed that date, and that if she were to dispose of the property or die the property was to revert to Mr. George L. Owenby for the repayment of the sum of $25,000 she had paid, all of which is clearly setforth [sic] in the four instruments. . . .

In response to Owenby’s motion, the Mayfield heirs contended that a question of fact remained as to the intent of the signatories because the agreement was vague, ambiguous, and inconsistent with the note and warranty deed. In this regard, the Mayfield heirs argued that the agreement granted Mayfield a life estate, while the note and warranty deed granted Owenby an option to purchase the property. Next, the Mayfield heirs argued that the triggering terms in the deed and note had not been satisfied because the heirs had not decided to sell the property. Finally, the Mayfield heirs contended that specific performance was not a viable remedy because the agreement lacked a valid consideration.

In support of the Mayfield heirs’ position, Holley submitted an affidavit, in which she averred that Mayfield informed her that the property would pass to Holley and Smith upon Mayfield’s death, and that Owenby could exercise his option to repurchase the property after Mayfield’s death only if her heirs decided to sell it. Mayfield and Owenby’s sister, Dorothy Owenby Harden, similarly averred that Mayfield expressed the hope that her heirs would not sell the property and that she knew that event would trigger Owenby’s right to purchase it. The Mayfield heirs also supplied the affidavit of a certified real estate appraiser, Eddie Phillips, who opined that the fair market value of the property at the time of Mayfield’s death was between $48,500 and $52,500.

After a hearing on the motion for summary judgment, the trial court denied Owenby’s motion and, sua sponte, granted summary judgment to the Mayfield heirs. The court ruled as follows: the option contained in the note and warranty deed violated the rule against perpetuities; the agreement was a valid contract; and the agreement was void because it granted to Mayfield a life estate, while the note and deed conveyed to her fee simple title absolute. Owenby appeals these rulings.

1. The trial court erred in holding that Owenby’s option to purchase the property, as stated in the note and warranty deed, violated the rule against perpetuities. The rule in effect until 1990 provided: “Limitations of estates may extend through any number of lives in being at the time when the limitations commence, and 21 years, and the usual period of gestation added thereafter. . . .” Pursuant to this rule,

An owner of realty may legally sell it to another and at the same time reserve the right to repurchase the land within a specified time. However, an option to purchase realty or an interest therein which is unlimited as to the time within which the option may be exercised constitutes a perpetuity and is prohibited under the statute.

In the instant case, it is clear from the note and deed that the right to repurchase is reserved solely to “George L. Owenby.” As the option is personal to Owenby, it must be exercised in his lifetime. Thus, it does not violate the rule against perpetuities.

However, the Mayfield heirs are correct that the event which would trigger Owenby’s right to repurchase the property under the note and deed has not occurred, as there is no evidence of a decision to sell the property. It cannot reasonably be argued that the conveyance of the property to the Trust constituted a sale. A document captioned “Assignment of Real Estate to Revocable Living Trust” recites that “Lucy Owenby Mayfield, does hereby transfer and assign, without consideration and in order to change formal title only, all right, title and interest in the [property] to Lucy Owenby Mayfield, Trustee. . . .” Nor is there any evidence that the Mayfield heirs have decided to sell the property. Accordingly, the disposition of this appeal turns on the validity and interpretation of the agreement.

2. Several considerations guide our interpretation of the agreement at issue. First, a contract for the sale of an interest in real property must satisfy the statute of frauds, and “writings relied on to take the transaction out of the [sjtatute of [f]rauds must (a) identify the buyer and seller, (b) describe the subject matter of the contract, and (c) name the consideration.” In the instant case, while the agreement identifies the parties and names the consideration, it does not contain a description of the property. Normally, this defect would be fatal to its validity, because “[t]o satisfy the statute of frauds, a contract for the sale of land must describe the property to be sold with the same degree of certainty as that required in a deed conveying realty.” Here, however, we do not examine the agreement in a vacuum, as Owenby presented some evidence that it was executed at the same time as the note and warranty deed. OCGA § 24-6-3 (a) provides that “[a]ll contemporaneous writings shall be admissible to explain each other.” The note, warranty deed, and agreement are all dated May 29, 1982. Therefore, the note and deed may be considered to establish the missing property description in the agreement.

Whether the agreement may be specifically enforced, however, depends on the intent of the signatories. “It would be inequitable to carry a contract into effect where the court is left to ascertain the intention of the parties by mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated.” In the instant case, considering the agreement in light of the note and warranty deed, there is conflicting evidence of the signatories’ intent. The agreement purports to convey to Mayfield a life estate, while the note and deed grant her fee simple title, reserving to Owenby an option to purchase. “The cardinal rule of construction, both at common law and under our code, is[ ] that instruments containing conditions, limitations, and restrictions are to be construed in each case in such way as to carry into effect the intent of the parties as gathered from the instrument as a whole.” The inconsistency between the agreement and the remaining instruments creates an ambiguity which can only be resolved by the trier of fact, aided by parol evidence.

Decided June 19, 2002.

Ballard, Stephenson & Waters, W. D. Ballard, Eugene D. Butt, for appellant.

Bryan M. Pulliam, for appellees.

3. Finally, the Mayfield heirs assert that Owenby was not entitled to specific performance of the agreement because he failed to prove that the price was equitable.

To succeed in a claim for specific performance, the purchaser must prove the value of the property so as to enable the court to determine that the contract was fair, just and not against good conscience. And whether the price was adequate and whether enforcement of the contract was equitable are questions for the trier of fact.

The trial court made no ruling on this issue, but we hold that a question of fact remains thereon. Moreover, Hancock v. Hancock, cited by Owenby in support of his argument that he was entitled to summary judgment on this issue, is distinguishable. That case held that “the court will not inquire into the adequacy or inadequacy of the consideration” under OCGA § 23-2-133, formerly Code Ann. § 37-805, where a family settlement is involved. Owenby, however, has not established that the agreement was effected to settle a family dispute. Accordingly, he is not seeking to enforce a family settlement, and Hancock is inapposite.

Judgment affirmed in part and reversed in part.

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

       Owenby named as defendants Holley, in her individual capacity and as trustee and executrix; Smith; the Trust; Mayfield’s estate; Fred Mayfield III; and Mickey Jiffo (“Mayfield heirs”).

       OCGA § 44-6-1 (a), repealed by Ga. L. 1990, p. 1837, § 1. In 1990 Georgia adopted the Uniform Statutory Rule Against Perpetuities, OCGA §§ 44-6-200 to 44-6-206. OCGA § 44-6-201 (a) (1) provides in pertinent part: “A nonvested property interest is invalid unless: (1) When the interest is created, it is certain either to vest or to terminate within the lifetime of an individual then alive or within 21 years after the death of that individual.” For a discussion of the rule’s legislative history in Georgia from 1863 to the present, see Chaffin, Georgia’s Proposed Dynasty Trust: Giving the Dead Too Much Control, 35 Ga. L. Rev. 1, 10-14 (2000).

       (Citations, punctuation and emphasis omitted.) Floyd v. Hoover, 141 Ga. App. 588, 592 (2) (234 SE2d 89) (1977).

        Williams v. Cowan, 226 Ga. 319, 320 (174 SE2d 789) (1970).

       (Citation and punctuation omitted.) Wiley v. Tom Howell & Assoc., 154 Ga. App. 235, 236 (267 SE2d 816) (1980).

       (Punctuation and footnote omitted.) Bulloch South, Inc. v. Gosai, 250 Ga. App. 170, 172 (1) (550 SE2d 750) (2001); see also OCGA § 13-5-30 (4).

       See, e.g., Baker v. Jellibeans, Inc., 252 Ga. 458, 459 (1) (314 SE2d 874) (1984).

       (Citations and punctuation omitted.) Wiley v. Tom Howell & Assoc., supra, 154 Ga. App. at 236.

        Wadley Lumber Co. v. Lott, 130 Ga. 135, 137-138 (60 SE 836) (1908).

       Cf. Bulloch South, Inc. v. Gosai, supra, 250 Ga. App. at 174 (1) (a).

       OCGA § 23-2-133.

       (Citations and punctuation omitted.) Surman v. Blansett, 246 Ga. App. 183, 186 (2) (539 SE2d 890) (2000).

       223 Ga. 481, 487 (3) (b) (156 SE2d 354) (1967).

       (Citations and punctuation omitted.) Id.; see also Mitchell v. Mitchell, 191 Ga. App. 139, 140 (1) (381 SE2d 84) (1989).


text:
    A02A0827.
    WEST et al. v. VILLAGE FORD-MERCURY, INC.
    (567 SE2d 355)
   Ruffin, Judge.

Ronnie and Dutchie West sued Village Ford-Mercury, Inc. (“Village Ford”) under a negligent entrustment theory for damages sustained in an automobile collision. Village Ford moved for summary judgment, and the trial court granted the dealership’s motion. The Wests appeal. Finding no error, we affirm.

On appeal, we review the trial court’s summary judgment ruling de novo and “construe the evidence and all reasonable inferences therefrom in the light most favorable to [the Wests] as the nonmovant [s].” Summary judgment is appropriate only if no genuine issue of material fact remains concerning the Wests’ claim.

Viewed in this light, the evidence shows that, on June 27,1998, a Ford Escort driven by Dorothy Manning collided with the Wests’ car. Manning, who was driving at a high rate of speed, hit the Wests from behind, pushing their car off the road and causing it to roll over. Ronnie West noticed that the Escort, which did not have a license plate, had Village Ford dealership tags on the front and rear. West assumed, therefore, that Village Ford owned the car.

Manning testified by affidavit, however, that Village Ford had no ownership interest in the Escort at the time of the collision. According to Manning “[o]n or about June 18 and June 19, 1998[, she] used [her] father, Willie Hamilton, to help purchase [the Escort] from Village Ford.” Manning’s husband, who worked as a car detailer at Village Ford, saw the car on Village Ford’s lot, inquired about purchasing it, and told Village Ford’s owner that Manning’s father was willing to place the car in his name.

Hamilton testified that he went with his daughter to Village Ford to sign papers so she could “get the car.” An application to finance the Escort through Ford Motor Credit Company (“Ford Motor Credit”), dated June 18, 1998, bears Hamilton’s signature. He also signed an “Assignment and Warranty of Title by Registered Owner,” indicating that he purchased the Escort from Village Ford on June 19, 1998, as well as a simple interest vehicle retail installment contract and an odometer disclosure statement, both dated June 19, 1998. In addition, Hamilton signed an extended service plan agreement dated June 18, 1998.

Although Hamilton, who was 72 years old at the time of his deposition, could not recall exactly when he signed these documents, he testified that he executed them before the June 27, 1998 wreck. After Hamilton signed the papers, Manning took possession of the car.

A Ford Motor Credit representative testified that his company opened an account relating to the Escort in Hamilton’s name on June 19, 1998. That same day, Ford Motor Credit purchased from Village Ford the retail installment contract signed by Hamilton. According to the representative, “[t]his transaction was processed on June 24, 1998, and settled on June 25, 1998 with the purchase amount of [$]8,195.95 being transmitted to Village Ford Mercury by an electronic funds transfer.” Another Ford Motor Credit representative testified that, on the day the credit company processed the transaction and funded the purchase, Hamilton was the vehicle owner, with Ford Motor Credit as the primary lienholder.

On July 16, 1998, the State of Georgia issued a certificate of title listing Hamilton as the Escort’s owner. Hamilton, however, never made the payments required under the financing agreement, and, in September 1998, Ford Motor Credit repossessed the car from Village Ford, where it had been taken after the June 27, 1998 collision.

Following the wreck, the Wests sued Village Ford, Hamilton, Manning, and her husband for damages. As to Village Ford, they alleged that, at the time of the collision, the dealership owned the Ford Escort and negligently entrusted it to Manning, despite knowing that Manning was not a competent driver. Village Ford moved for summary judgment, arguing that it did not own the car at the time of the wreck. According to Village Ford, because the Wests’ negligent entrustment theory was “based on the presupposition that Village Ford retained some ownership interest in the vehicle,” summary judgment was appropriate. The trial court agreed and granted the motion.

Generally, “[l]iability for negligent entrustment is predicated upon ‘a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless.’ ” On appeal, the Wests argue that questions of fact remain as to whether Village Ford had some ownership interest in the Escort, rendering summary judgment improper. We disagree.

Under the Uniform Commercial Code, “[u]nless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place.” Prior to the June 27, 1998 collision, Hamilton signed purchase and financing documents relating to the car sale, Ford Motor Credit financed the purchase in Hamilton’s name and paid Village Ford the Escort’s purchase price, and Manning took possession of the vehicle. The evidence thus shows that Village Ford sold its interest in the car to Hamilton before the collision.

On appeal, the Wests claim that a factual dispute remains regarding when Village Ford applied for a license tag and certificate of title in Hamilton’s name — either before the collision or over a week later, on July 6, 1998. Even if this question remains, however, vehicle ownership can change hands under the Commercial Code “ ‘without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser.’ ” The Motor Vehicle Certificate of Title Act (“the Act”) also recognizes that, between a buyer and seller, ownership to an automobile may pass before the buyer obtains the certificate of title. As we have explained, the Act “provide [s] a simple statutory method of proving ownership to motor vehicles but it is not exclusive. The statute did not change the existing case law as to the manner in which ownership of chattels including automobiles could be proven. The certificate is not the title or ownership itself but only evidence of it.”

Regardless of whether Village Ford applied for the title or tag before or nine days after the wreck, the evidence shows that the dealership sold its interest in the Ford Escort prior to June 27, 1998. As noted above, before the collision, Hamilton signed numerous documents relating to the purchase, including the “Assignment and Warranty of Title by Registered Owner,” Ford Motor Credit financed the purchase, and Hamilton’s daughter took possession of the vehicle. Under these circumstances, the alleged delay in obtaining or applying for the certificate of title or tag did not affect the ownership transfer.

Decided June 19, 2002.

Joseph E. East, for appellants.

Finally, the Wests argue that any title transferred to Hamilton was void or voidable because the dealership and Manning fraudulently induced Hamilton to enter the purchase agreement. Hamilton testified that he never intended to buy a car and did not understand that the documents he signed involved a purchase. According to Hamilton, he merely “signed for [Manning] to get [a car].” Hamilton further testified that he did not provide the information included on the car financing application and that much of the information was wrong.

Based on this testimony, the Wests seek to treat the purchase as void for purposes of their personal injury suit. They have pointed to no evidence, however, that Hamilton ever rescinded or sought to void the purchase transaction based on fraud. Furthermore, they have not cited any case law or statutory provision authorizing a stranger to a purchase contract to void or rescind that contract. Under OCGA § 13-5-5, “[flraud renders contracts voidable at the election of the injured party,” not a third party like the Wests. (Emphasis supplied.) And we have found nothing in Georgia’s Commercial Code that gives the Wests such a right.

Simply put, the Wests are strangers to the transaction between Hamilton and Village Ford. As such, they cannot deem that transaction void, despite the allegedly fraudulent circumstances surrounding it. The trial court did not err, therefore, in concluding that the dealership sold its ownership interest in the car before the June 27, 1998 collision. It follows that the trial court properly granted Village Ford summary judgment.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

Young, Thagard, Hoffman & Smith, Matthew R. Lawrence, Crowley & Billiard, Scott C. Crowley, for appellee.

        Hindmon v. Virgil’s Food Mart, 252 Ga. App. 732 (556 SE2d 135) (2001).

       See id. at 732-733.

        Trent v. Franco, 253 Ga. App. 104, 109 (2) (558 SE2d 66) (2001).

       Throughout this case, the Wests have argued that Village Ford is liable to them because the dealership owned the Escort on June 27, 1998. They have not claimed that - and we need not consider whether - Village Ford negligently entrusted the vehicle to Manning by selling the vehicle to Hamilton or delivering it to Manning after the sale. See Selph v. Brown Ford Co., 181 Ga. App. 547 (353 SE2d 11) (1987) (“[T]o be liable for the negligent entrustment of a vehicle [a party] must be the owner of the vehicle, the party in control of the vehicle, or the party who placed the vehicle in the hands of the incompetent driver.”); see also Reddell v. Allen, 193 Ga. App. 102-103 (1) (386 SE2d 735) (1989) (“Entrusting of a vehicle may be accomplished by sale as well as by loan”).

       OCGA § 11-2-401 (2).

       See Mitchell Motors v. Barnett, 249 Ga. App. 639, 640-641 (1) (549 SE2d 445) (2001); Right Touch of Class v. Superior Bank, 244 Ga. App. 473, 474-475 (1) (536 SE2d 181) (2000); American Mut. &c. Ins. Co. v. Cotton States Mut. Ins. Co., 149 Ga. App. 280, 281 (2) (A) (253 SE2d 825) (1979).

        Mitchell Motors, supra at 641 (1); see also OCGA § 11-2-401 (2).

       OCGA § 40-3-1 et seq.

       See OCGA § 40-3-32 (d); Right Touch, supra; Canal Ins. Co. v. Woodard, 121 Ga. App. 356, 358-359 (1) (173 SE2d 727) (1970). We note that, as to third parties who may acquire an interest in the vehicle, a sales transaction is not effective until the certificate of title is transferred to the buyer. See OCGA § 40-3-32 (d); Canal Ins., supra. The Wests, who have not acquired an interest in the Escort and only seek to establish' ownership for their personal injury suit, do not fall within this provision. See American Mut., supra at 281-282 (2) (B); OCGA § 40-1-1 (39) (defining “owner” for purposes of the Act).

       (Punctuation omitted.) Bank South v. Zweig, 217 Ga. App. 77, 78 (1) (456 SE2d 257) (1995) (physical precedent only); see also Palmer v. State, 250 Ga. 219, 223 (5) (297 SE2d 22) (1982) (Act provides additional method of establishing title to motor vehicles but does not change existing law as to how ownership can be proven).

       See Mitchell Motors, supra; Right Touch, supra.

         See Phillips v. MacDougald, 219 Ga. App. 152, 153 (2) (a) (464 SE2d 390) (1995) (third parties to contract allegedly procured through fraud not allowed to treat contract as void because injured party had not declared contract void).


author: Ellington, Judge.

text:
    A02A1533.
    SMITH v. THE STATE.
    (567 SE2d 359)
   Ellington, Judge.

A Walker County jury convicted Cornelius Smith of theft by bringing stolen property into the state, OCGA § 16-8-9, and giving a false name, OCGA § 16-10-25. Smith appeals from the denial of his motion for new trial, contending the evidence was insufficient to support his theft conviction. We affirm.

On appeal, this Court views the evidence in the light most favorable to the verdict using the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). On appeal Smith no longer enjoys the presumption of innocence, and we do not weigh the evidence or judge the credibility of witnesses. Casey v. State, 267 Ga. 433, 434-435 (479 SE2d 715) (1997). Viewed in this light, the record shows the following. On December 8, 1997, Tjuana Duckett’s 1991 white Nissan Sentra was stolen from the parking lot of her apartment complex in Chattanooga, Tennessee. Duckett saw her car being driven from the lot. She followed the thief in a friend’s car, flashing her headlights to get the thief to stop. After being pursued for almost ten minutes, the thief pulled over by the side of the road. Duckett approached the thief and asked for her car back. The thief said he would give Duckett her car back for $20; however, when Duckett walked toward him, he drove away.

On December 14, 1997, police discovered Duckett’s car in LaFayette, Georgia, parked behind a church. The car had an improper Georgia tag on it, but the police were able to trace the car to Duckett through its vehicle identification number. Duckett identified her car and her personal effects found in the car.

Several witnesses testified that “D. C.,” who was later identified as Cornelius Smith, had been driving the car in Georgia. Smith had been staying with his girlfriend, Becky Singleton, who lived a few blocks away from the church where the car was found. Singleton testified that Smith arrived at her house in LaFayette about five hours after the car was reportedly stolen. He was with his friend “Twin,” who, despite the nickname, looked nothing like Smith. Witnesses testified that Smith appeared to be in possession of the car, though he let others drive it. Singleton testified that the car contained a woman’s personal effects. She also noticed that, at that time, the car had a Tennessee tag. Smith explained that he borrowed the car from a cousin in Chattanooga. Witnesses testified that Smith parked the car so that the tag was not visible from the street. The police later found Duckett’s Tennessee tag discarded beside a highway.

Decided June 19, 2002.

Jennifer E. Hildebrand, Melodie S. Bedford, for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

When Smith was arrested, he told a law enforcement officer that his name was Eric Stewart. Smith also told his girlfriend, who knew him only as “D. C.,” to report his name as “Eric Smith” if the police ever came looking for him. Smith said he knew the car was stolen, but that he did not steal it. Duckett, however, picked Cornelius Smith’s picture out of a photographic lineup and identified him in court as the person who took her car.

Smith contends the evidence was insufficient to support his conviction for theft by bringing stolen property into the state. He argues that there was no evidence that he was the one who brought the car into Georgia. OCGA § 16-8-9 provides that “[a] person commits the offense of theft by bringing stolen property into this state when he brings into this state any property which he knows or should know has been stolen in another state.” See also Cunningham v. State, 222 Ga. App. 740, 742 (1) (b) (475 SE2d 924) (1996). In this case, witness testimony places Smith in possession of the car in Tennessee minutes after the theft and in possession of the car in Georgia hours after the theft. Smith admitted that he knew the car was stolen. The testimony of other witnesses establishes that Smith took custody and control of the car, treated it as his own, and even explained that he came into possession of the car by virtue of a cousin in Tennessee. Given this evidence, the jury could infer that Smith drove or participated in driving the stolen car from Tennessee to Georgia. Viewed with all inferences in favor of the jury’s verdict, the evidence adduced at trial was sufficient to enable a rational trier of fact to find Smith guilty of theft by bringing stolen property into the state. See Watson v. State, 252 Ga. App. 244, 246-247 (2) (555 SE2d 896) (2001).

Judgment affirmed.

Smith, P. J, and Eldridge, J., concur.


text:
    A02A1590.
    MORRISON v. THE STATE.
    (567 SE2d 360)
   Ellington, Judge.

A Lowndes County jury convicted Johnny Lee Morrison, Sr. of two counts of violating Georgia’s Controlled Substances Act, OCGA § 16-13-30. He appeals from the denial of his motion for new trial. Finding no error, we affirm.

The evidence presented, viewed in the light most favorable to the verdict, shows that on December 14, 2000, police officers from the Lowndes County Sheriff’s Office Narcotics Division arranged a controlled buy of cocaine between Morrison and his cousin, Joseph McGoggle, at a motel. Before the controlled buy, the officers searched McGoggle to ensure that he did not have any illegal contraband or money on his person. The officers gave McGoggle a $100 bill and wired him with an audiotape listening device. As officers watched from a nearby motel room, McGoggle called Morrison and arranged the buy. Morrison arrived about ten minutes later. McGoggle and Morrison exchanged the $100 bill for a rock of cocaine. The officers videotaped the transaction.

McGoggle gave an arrest signal to the officers, who ran toward the two men. McGoggle lay down on the ground with the cocaine in his hand. Morrison threw his hands in the air and started to run. The officers saw Morrison throw some money and cocaine before they tackled and handcuffed him. The officers found the $100 bill and a rock of cocaine on the ground and retrieved the cocaine from McGoggle’s hand. Following a jury trial, Morrison was convicted of possession of cocaine, OCGA § 16-13-30 (a), and possession with intent to distribute cocaine, OCGA § 16-13-30 (b).

1. On appeal, Morrison complains that the trial’s bench conferences were not transcribed, characterizing the missing proceedings as “major decisions” involving objections and arguments “unknown and undeterminable at this time.” He contends that microphones were visible around the judge’s bench, so that he “assumed” the entire proceedings would be transcribed.

Morrison failed, however, to follow the statutory means for completing a transcript under these circumstances. “[W]here the transcript does not fully disclose what transpired at trial, it is the duty of the complaining party to have the record completed pursuant to OCGA § 5-6-41.” (Citation omitted.) Mapp v. State, 204 Ga. App. 647, 648 (2) (420 SE2d 615) (1992). Under OCGA § 5-6-41, a party can attempt to reach an agreement with the opposing party about what transpired during trial for the purpose of recreating a transcript. If they are unable to reach an agreement, they can submit the issue to the court. Since Morrison failed to follow the OCGA § 5-6-41 procedure, he is unable to show error or harm by the record on appeal. See Mapp v. State, 204 Ga. App. at 648 (2). We find the trial court did not err in denying the motion for new trial on the basis that the bench conferences were not transcribed.

2. Morrison complains that a photocopy of the $100 bill should not have been admitted. Morrison objected to the photocopy at trial on the basis of lack of authentication, but abandoned that argument on appeal. Morrison now argues that the photocopy was inadmissible as irrelevant, citing Snelling v. State, 215 Ga. App. 263, 265-266 (1) (b) (450 SE2d 299) (1994). He failed, however, to object at trial to the photocopy on that basis. Accordingly, he has waived these objections to the evidence. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citation and punctuation omitted.) Williams v. State, 234 Ga. App. 191, 195 (6) (506 SE2d 237) (1998).

3. Morrison contends that one of the police officers was not properly qualified as an expert to give his opinion of the street value of two rocks of crack cocaine. This enumeration lacks merit.

The trial court has the discretion to allow an experienced police officer to testify to the street value of cocaine which has been seized. Kimbrough v. State, 215 Ga. App. 303-304 (1) (450 SE2d 457) (1994). The officer in this case testified that he had six years of experience as a police officer dealing with crimes involving “street level drugs” and narcotics and that he had participated in more than a hundred cocaine investigations. When asked to give his opinion, based upon this experience, of the approximate value of the two rocks of crack cocaine recovered at the scene, the officer opined that the street value of the smaller one was $50 and the larger rock was worth $100. The admission of this testimony was proper. Id.

4. Morrison argues that he is entitled to a new trial because McGoggle, his cousin, allegedly perjured himself on the stand at trial. The affidavit was not newly discovered evidence under OCGA § 5-5-23, but would serve only to impeach McGoggle’s trial testimony. Therefore, it cannot be the basis for a new trial. Drake v. State, 248 Ga. 891, 894 (1) (287 SE2d 180) (1982). “The law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” (Citation and punctuation omitted.) Osborn v. State, 233 Ga. App. 257, 260 (3) (504 SE2d 74) (1998). Accordingly, the trial court did not err in denying the defendant’s motion for a new trial on this ground.

Decided June 19, 2002.

Edith M. Edwards, for appellant.

J. David Miller, District Attorney, J. Bennett Threlkeld, Assistant District Attorney, for appellee.

5. Morrison contends the trial court erred when it sentenced him as a recidivist. Contrary to Morrison’s argument on appeal, the State properly filed a notice to treat him as a recidivist for sentencing purposes, based upon Morrison’s two prior convictions as a habitual violator under OCGA § 40-5-58. An individual who has previously been convicted of a felony shall be sentenced upon conviction of a subsequent felony to the maximum prescribed punishment for that offense, although the trial court may suspend or probate part or all of the sentence. OCGA § 17-10-7 (a).

In this case, Morrison was convicted of possession of cocaine and possession with intent to distribute cocaine. OCGA § 16-13-30 (a), (b). The maximum punishment for a first conviction of possession with intent to distribute cocaine is thirty years, with a minimum of five to serve. OCGA § 16-13-30 (b), (d). This is the sentence Morrison received. Accordingly, there was no error.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

        Johnson v. State, 231 Ga. App. 114, 119 (4) (497 SE2d 666) (1998).

       At trial, an officer testified that, due to the limited availability of funds, the sheriff’s office later photocopied the $100 bill used in this controlled buy so that the officers could reuse the bill in subsequent buys. The photocopy was admitted into evidence.

       We note that, at the motion for new trial hearing, the State argued that no improper evidence was admitted following the bench conferences, and the trial court agreed. The first bench conference involved routine pre-trial matters prior to voir dire. During two subsequent bench conferences, the trial court sustained Morrison’s hearsay objections and the State complied with the trial court’s ruling, so Morrison was not harmed by the failure to transcribe. When Morrison objected to hearsay during a bench conference a third time, the State affirmatively warned its witness, a police officer, to limit his testimony to actions he took during the controlled buy. The record shows that no improper evidence was admitted at that time. The final untranscribed bench conference involved Morrison’s motion for a directed verdict, which was properly denied.

       Under OCGA § 5-5-23, newly discovered evidence that might justify a new trial means material evidence that is “not merely cumulative or impeaching in its character but relating to new and material facts.”


author: Eldridge, Judge.

text:
    A02A1622.
    OGLE v. THE STATE.
    (567 SE2d 700)
   Eldridge, Judge.

A Pierce County jury found Johnny Ray Ogle guilty of armed robbery for his participation in such act at Lairsey’s Quick Change convenience store in Blackshear. Without challenging the sufficiency of the evidence against him, he appeals and claims that the trial court erred in permitting the State to introduce State’s Exhibit 2, a chrome plated .357 magnum handgun, because a proper chain of custody was not established; that the trial court erroneously admitted Ogle’s statement to the police given in violation of Miranda; that the trial court erred in considering his criminal record during sentencing without notice of aggravation being provided pursuant to OCGA § 17-10-2 (a); and that he received ineffective assistance of counsel at trial. Each of these alleged errors is meritless, and we affirm.

1. “A weapon may be admissible if the identification is sufficient to allow the jury to decide, under the evidence relative to identification, whether it is the identical weapon used by the defendant.” Here, a videotape of the incident captured by the convenience store’s surveillance camera shows that, at approximately 8:30 p.m. on February 14, 1998, a chrome plated .357 magnum handgun with a wooden handle was used to perpetrate an armed robbery of Lairsey’s Quick Change convenience store. The store clerk identified State’s Exhibit 2 as looking like the gun that was used.

Ogle’s co-defendant, Kenneth M. Logan, pled guilty to the offense. At Ogle’s trial, he took the stand and testified that Ogle suggested the robbery of the Quick Change as an “easy score.” Ogle drove Logan to the store and went inside himself to “scope it out.” The store’s surveillance camera recorded his visit. After he left, he gave Logan a ski mask, a .357 magnum chrome plated handgun with a wooden handle, and sent him into the Quick Change to rob it. Logan testified that following the robbery, they gave the gun to Teresa Ogle, appellant’s wife. He identified State’s Exhibit 2 as looking like the weapon he used.

Witness Brandi Stewart identified State’s Exhibit 2 as Teresa Ogle’s gun and testified that she had seen the weapon in Ogle’s truck. Teresa Ogle testified that Ogle visited her residence at 7:30 p.m. on the incident date and her residence was located approximately four miles from the Quick Change; that she owns a chrome plated .357 magnum handgun with a wooden handle; that Ogle knew where the gun was located and had fired it several times; and that the weapon in the store videotape looked like her gun. She identified State’s Exhibit 2 as looking like her gun. Teresa Ogle’s mother and sister testified that they retrieved Teresa’s .357 from her house and gave it to Teresa’s father, Sam Wilson. The lead detective identified State’s Exhibit 2 as the weapon he obtained from Wilson, Teresa’s father, and thereafter gave to the prosecution.

We conclude this evidence was sufficient to establish a chain of custody as to State’s Exhibit 2. The role such weapon played in the incident was for the jury to decide. “A weapon is generally admissible if it is similar to the one used in the crime even though it is not conclusively shown to be the same one.”

2. Next, Ogle claims a Miranda violation in the admission of a statement he made to a police officer. There was no such violation in this case. The single statement about which Ogle complains was not in any way the result of police questioning, but was a volunteered statement about his whereabouts at the time of the incident.

Crucial is whether a statement results from a custodial interrogation. If an accused volunteers a noncoerced statement then it is not necessary to invoke the tests which only apply to information obtained as a result of interrogation. This was recognized in Miranda, supra at 478, where it was held: “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.”

3. We also find no violation of OCGA § 17-10-2 (a) in the trial court’s consideration of Ogle’s apparently extensive criminal record when imposing sentence. Contrary to Ogle’s contentions, “we have held specifically that the statute does not require written notice; all that is required is blear notice.’ ” “Plea bargain negotiations can serve the same purpose as the giving of notice under OCGA § 17-10-2 (a). . . . When plea bargain negotiations are conducted, the defendant can be given blear notice’ of what the State intends to rely upon in aggravation of sentencing at the guilty plea hearing.” “The important requirement [is] that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record.”

In this case, Ogle’s trial counsel testified at the motion for new trial hearing that she had notice of the State’s intent to introduce his prior record in aggravation of sentence and that she had been given Ogle’s Georgia Crime Information Center report which was “longer than my arm.” Defense counsel testified that the district attorney and she “went over it [criminal record] a good bit about his sentencing” during plea negotiations. The prosecutor confirmed that fact, stating, “We discussed it in plea negotiations prior to court. We [had] lengthy discussions as to what possible sentences were on this and why the state was offering what it did. He turned it down. We discussed it with her [defense counsel] what the chances of what he was gonna get if he went to trial based on his prior record.” Accordingly, there is no factual basis for the instant claim of error.

4. Finally, Ogle claims he received ineffective assistance of counsel at trial. In order to prevail on such claim, Ogle must show that his counsel’s performance was deficient and that, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Ogle has failed to meet this burden.

The primary basis for Ogle’s claim of ineffective assistance is that his attorney failed to object to the trial court’s consideration of his criminal record during sentencing because notice of aggravation was not served pursuant to OCGA § 17-10-2 (a). However, this claim of error has been decided adversely to Ogle in Division 3, supra. Ogle also contends his defense counsel failed to object to the admission of Ogle’s statement to a police officer as a violation of Miranda. However, this claim has been decided adversely to Ogle in Division 2, supra. In addition, Ogle claims:

(a) That his attorney failed to file discovery motions. The record shows, however, that the district attorney had a complete open file policy, and Ogle’s trial attorney testified that she had copies of everything in the prosecutor’s file. In that regard, Ogle fails to state what more would have been obtained had discovery motions been filed;

(b) That his attorney failed to file a “reveal the deal” motion with regard to witness Stewart. However, it was anticipated that Stewart, one of Ogle’s girlfriends, would testify favorably for Ogle, and his trial attorney made a strategic decision not to undermine such testimony by impeachment: “it wouldn’t have done me any good to make my witness out to be a bad person for us, she was gonna be a witness for us.” “[W]e refuse to second-guess counsel’s strategic decision”; and

(c) That defense counsel failed to object when, as a part of the rule of sequestration invoked by Ogle, the trial court did not admonish the witnesses to refrain from talking to each other. In a demonstration of prejudice, we are directed to the fact that one of Ogle’s girlfriends/witnesses apparently learned during the course of the trial through a discussion with Ogle’s wife (also a witness) that Ogle had given another girlfriend/witness an engagement ring.

Decided June 19, 2002.

Teresa G. Bowen, for appellant.

Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

However, the admonition with regard to the rule of sequestration is that the witnesses not discuss the case or their testimonies thereon with each other; conversation unrelated to the indicted charges and/or testimony is not precluded by the rule. Accordingly, regardless of whether the trial court gave the proper rule of sequestration admonishment as to witness communication, a conversation between witnesses about Ogle’s impending nuptials — while perhaps placing Ogle in a personally precarious position — had nothing whatsoever to do, even tangentially, with the armed robbery at the Quick Change so as to evidence an abuse of sequestration. Such conversation, then, cannot demonstrate prejudice as a violation of the rule and provides no basis for an attorney objection thereon.

On further review, we find that Ogle’s remaining contentions with regard to his trial attorney either are factually meritless or fail to show prejudice so as to “undermine confidence in the outcome” of the trial. “Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiencies.” Accordingly, the trial court’s conclusion that Ogle received effective assistance of counsel was not clearly erroneous.

Judgment affirmed.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citations and punctuation omitted.) Thomas v. State, 268 Ga. 135, 139 (10) (485 SE2d 783) (1997).

       (Footnote omitted.) Davis v. State, 272 Ga. 327, 330 (4) (528 SE2d 800) (2000).

       Absent a Miranda violation, Ogle’s statement was not limited to use as impeachment evidence only, as Ogle argues by brief. Brown v. State, 226 Ga. App. 140, 141-144 (486 SE2d 370) (1997).

       (Citation and punctuation, omitted.) Brenneman v. State, 200 Ga. App. Ill, 113 (1) (407 SE2d 93) (1991).

       (Citation omitted.) Mullinax v. State, 242 Ga. App. 561, 563 (2) (530 SE2d 255) (2000).

        Martin v. State, 207 Ga. App. 861, 862 (429 SE2d 332) (1993).

       (Punctuation and footnote omitted.) Young v. State, 245 Ga. App. 684, 686-687 (3) (538 SE2d 760) (2000).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Nihart v. State, 227 Ga. App. 272, 275 (1) (c) (488 SE2d 740) (1997).

       OCGA § 24-9-61; O’Kelley v. State, 175 Ga. App. 503, 504-505 (1) (333 SE2d 838) (1985).

        Strickland v. Washington, supra, 466 U. S. at 694 (III) (B).

       (Citation omitted.) Eggleston v. State, 247 Ga. App. 540, 543 (2) (544 SE2d 722) (2001).

        Banks v. State, 250 Ga. App. 728, 730 (2) (552 SE2d 903) (2001).


author: Blackburn, Chief Judge.

text:
    A02A0364.
    RICHARDSON v. THE STATE.
    (567 SE2d 693)
   Blackburn, Chief Judge.

Reginald Edward Richardson was convicted of theft by taking a motor vehicle, criminal trespass, battery, simple battery (two counts), and giving a false name. In this appeal, Richardson contends that the trial court erred in denying his motion for new trial. He challenges the sufficiency of the evidence only as to two crimes. He also claims that he was denied effective assistance of counsel and asserts that the trial court erred in considering his prior convictions during the sentencing phase. After review of these alleged errors, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Richardson no longer enjoys the presumption of innocence. Pollard v. State. The evidence, when viewed in that light, established that the victim and Richardson married in 1986, separated after 21 days, and divorced in 1988. Their relationship was often tumultuous and marred by violence.

After having no contact for nearly 13 years, Richardson approached his ex-wife for help. She agreed to let Richardson live with her and her mother temporarily because he had no job, money, or car, and she wanted to “help him get himself on the right track.” After moving into the victim’s apartment, Richardson began working at a nearby construction site. Shortly after Richardson moved in, arguments arose, primarily about money and Richardson’s reluctance to pay his own bills. After a particularly violent altercation, police were summoned. Deciding she had “had enough,” his ex-wife told him to move out, and he relocated nearby. Subsequently, when Richardson continued to seek food from her, his former spouse would drop things over her third-floor balcony because she was afraid of him and was reluctant to open her apartment door.

Late one night, the victim heard Richardson banging on her door and yelling her name. After she said, “[g]o away, we can talk tomorrow,” Richardson kicked in the door, splintering the wooden frame and breaking the locks. He immediately punched her in the mouth, knocking her backward. After the victim yelled for her elderly mother to dial 911, Richardson placed his hand over her mouth and nose so “I couldn’t even breathe.”

As the victim’s mother, who has Alzheimer’s disease, heart problems, and diabetes, asked, “where’s the phone, where’s the phone?” Richardson attacked her. Grabbing his former mother-in-law around the waist, Richardson slammed and dragged her across the room, throwing her down. While doing so, he announced, “fw]ell, if I’m going to jail then I might as well go for something.” Richardson then pulled out what the victim described as “a big, old western gun,” and pointed it directly at her. During the ensuing struggle over the gun, it discharged into the ceiling. After the gun blast, Richardson fled, taking the victim’s car keys. She testified that “he got to my car, got in, and was gone.” After contacting her by phone five or six times and ignoring her pleas to return her car, Richardson finally revealed that the car was parked at a place known as the Bluff. When his ex-wife located her car parked there, she contacted police. Since Richardson had her keys, the car had to be towed.

Three days after Richardson’s violent outburst, while on routine patrol, Officer Thomas B. Stephens encountered a marooned motorist whose car had run out of gas. The stranded motorist was, in fact, Richardson, who was driving a stolen vehicle. While aiding Richardson by using his cruiser’s “push bumper” to move the car to a gas station, Stephens learned that the car had been reported stolen. When arrested, Richardson gave what Stephens described as “a prison I.D. or an inmate I.D. card.” Stephens recognized Richardson’s face on the card but noticed the name on the card was “Randy Richardson or something of the sort.” Stephens testified that “he gave me an I.D. that was not his true identity.”

1. Richardson contends that the evidence was insufficient to support a finding of theft by taking a motor vehicle. However, the victim testified that after Richardson absconded with her car keys, her car was missing. The responding officer to the scene, the same officer who would later apprehend Richardson, testified that the victim told police Richardson had taken her keys and left in her car. Richardson’s ex-wife denied giving him permission to use her car and testified that Richardson refused to return it even though she begged him to do so. Only after Richardson disclosed the whereabouts of the vehicle was she able to locate her car. No evidence indicated that the ignition had been subjected to any tampering. From this evidence, the jury could find all the requisite elements of theft by taking a motor vehicle. Cook v. State; see OCGA § 16-8-2.

2. Richardson contends that the evidence was insufficient to support a finding of giving a false name. He asserts that the record contains no evidence that he deliberately tried to mislead the officer as to his correct identity. Claiming that the ID card had been issued to him by the Department of Corrections (“DOC”), he argues that the DOC, not he, is responsible for the error because “for 13 years the Department of Corrections referred to this man as Randy Robinson.”

While no copy of this ID card appears in the record, and regardless of the origin of the card, the arresting officer testified that Richardson gave him a false name. See OCGA § 16-10-25. No evidence presented at trial shows that the name that Richardson provided to the officer appears on Richardson’s official birth certificate, Social Security card, or driver’s license. See Johnson v. State. No evidence shows that Richardson is, in fact, anyone other than Richardson. On the contrary, Exhibit 3, admitted for sentencing purposes, shows that Richardson had been indicted in another case in a different county as “Randy Robinson.” In the sentencing sheet for that case had been inserted: “true name: Reginald Richardson.”

3. Richardson contends that the trial court erred in considering bis prior convictions at sentencing. He claims that the State failed to provide proper notice as required by OCGA § 17-10-2 of its intent to seek recidivist sentencing.

When the State seeks to present evidence in aggravation, it must provide the defendant with “clear notice” of all previous convictions sought to be introduced at trial. West v. Waters Although this “clear notice” need not be in writing even though written notice is preferable, the notice must be “adequate and clear.” Mullinax v. State.

Here, the State met the “clear notice” requirement. The State faxed its “Notice of State’s Intention to Seek Punishment of the Defendant as a Repeat Offender” to defense counsel. Although defense counsel advised the trial court that he did not recall receiving the facsimile and that it had likely been sent to his former office, counsel stated that he had no reason to doubt that the State had sent it to him. When the trial court inquired as to whether there was any issue that this was Richardson’s fifth felony conviction, defense counsel responded, “five seen those certified copies [of felony convictions], Judge, that he’s provided me, and I was provided with a criminal history early on, which has a number of arrests and convictions.” Later, at the motion for new trial hearing, defense counsel was asked,

Prosecutor: And do you remember you and I had a conversation about the State filing recidivist treatment — filing for recidivist treatment previously?
Defense counsel: You and I talked about recidivism, we talked about his convictions, and we talked about everything in regards to plea negotiations before the case went to trial.

Since the record shows that Richardson received “clear notice” as required by OCGA § 17-10-2, the trial court did not err in imposing a recidivist sentence. See Mullinax, supra.

Decided May 7, 2002

Reconsideration denied June 20, 2002.

Sidney L. Storesund, for appellant.

Reginald E. Richardson, pro se.

4. Richardson asserts that the trial court erred by not finding his trial counsel was ineffective. He claims that his counsel failed to adequately confer with witnesses about the false name charge and did not seek a jury charge relating to the false name charge for the prison ID card. He also complains that his counsel failed to cross-examine the victim about the differences between what she had told him she would testify to prior to trial and her actual testimony at trial.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency prejudiced him. Rucker v. State Failure to satisfy either requirement is fatal to an ineffectiveness claim. Brewer v. State Consequently, absent a showing of prejudice, no inquiry need be made into trial counsel’s purported deficiencies or vice versa. Ortiz v. State

Here, Richardson raises only unsubstantiated generalities. He did not specifically name a single witness with whom his counsel failed to confer. Nor did he frame the jury instruction that purportedly should have been sought. Although Richardson claims that he was prejudiced by his trial counsel’s failure to cross-examine his ex-wife “as to the differences in what she had told him she would testify to prior to trial and her subsequent testimony at trial,” he cited to no particular discrepancy. Since Richardson failed to show that the trial court’s finding that he was not denied effective assistance of counsel was clearly erroneous, that finding must be affirmed. Kelly v. State.

5. Richardson contends that the trial court erred in denying his motion for new trial because the prosecutor stated during his closing argument that he did not believe a particular defense witness. The transcript, however, fails to show that Richardson interposed any objection. Therefore, any issue as to the purported impropriety of the remark was not preserved, and the issue was waived. Rogers v. State.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Patrick H. Head, District Attorney, C. Lance Cross, Amelia G. Pray, Assistant District Attorneys, for appellee.

        Pollard, v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

        Cook v. State, 180 Ga. App. 139, 140 (348 SE2d 687) (1986).

        Johnson v. State, 149 Ga. App. 273, 274 (1) (253 SE2d 889) (1979).

       Although not entered in evidence, a Georgia Crime Information Center report indicates that Richardson has availed himself of multiple birth dates, several different Social Security numbers, and multiple aliases, including that of “Randy Robinson.”

        West v. Waters, 272 Ga. 591 (1) (533 SE2d 88) (2000).

        Mullinax v. State, 242 Ga. App. 561, 563 (2) (530 SE2d 255) (2000).

        Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

        Ortiz v. State, 222 Ga. App. 432, 434 (5) (474 SE2d 300) (1996).

        Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

        Rogers v. State, 247 Ga. App. 219, 222-223 (5) (543 SE2d 81) (2000).


author: Barnes, Judge.

text:
    A02A0242.
    GODLEWSKI v. THE STATE.
    (567 SE2d 704)
   Barnes, Judge.

Proceeding pro se following a citation for speeding, Ronald Godlewski was found guilty and fined $200. He appeals, contending that he did not knowingly and voluntarily waive his right to counsel.

The first question to be addressed is whether Godlewski was entitled to appointed defense counsel as a matter of right, and the answer to that question turns on whether he was sentenced to imprisonment. “When an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional. . . right to counsel attaches. Argersinger v. Hamlin, 407 U. S. 25, 37 (96 SC 2006, 32 LE2d 530) (1972).” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984). Counsel need not be appointed for defendants in misdemeanor cases, however, when defendants are not sentenced to a term of imprisonment. Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992). Further, last month the United States Supreme Court held that even imposition of a suspended sentence to confinement “that may ‘end up in the actual deprivation of a person’s liberty’ ” may not be imposed unless the defendant was provided counsel. Alabama v. Shelton, 535 U. S. 654 (122 SC 1764, 1767, 152 LE2d 888) (2002).

Unless otherwise provided for with respect to particular offenses, violations of the traffic code are misdemeanors, and penalties for violating the traffic code will be as provided for in OCGA § 17-10-3. OCGA § 40-6-1 (a); Chastain v. State, 231 Ga. App. 225, 228 (4) (498 SE2d 792) (1998). Although under OCGA § 17-10-3 (a) (1) and (2), Godlewski could have been sentenced to confinement, he was not entitled to appointed counsel because the sentence actually imposed did not include imprisonment.

That, however, does not end our inquiry. Deren v. State, 237 Ga. App. 387, 388 (515 SE2d 191) (1999).

A criminal defendant has a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. A criminal defendant may forfeit his right to counsel by a knowing and intelligent waiver. Since [Godlewski] pled not guilty and went to trial, the state must also prove that the decision to proceed pro se was made knowingly and intelligently.

Decided June 20, 2002.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Keith C. Martin, Solicitor-General, for appellee.

(Citations and punctuation omitted.) Id.

“As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver. Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment of this right.” (Citations and punctuation omitted.) Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998).

Although no particular questions are required as evidence of this waiver, “the record must reflect that the defendant was made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver.” (Citation and punctuation omitted.) State v. Watson, 244 Ga. App. 484 (536 SE2d 170) (2000). The State may carry this burden by showing a valid waiver through either a trial transcript or other extrinsic evidence. Dunn v. State, 234 Ga. App. 623, 625 (3) (507 SE2d 170) (1998).

Although Godlewski’s brief asserts that he appeared, without counsel, on the day of trial expecting only that he would be arraigned and the trial court refused his request for a continuance to retain an attorney, these allegations are not supported by the record. The record in this case consists of nothing more than the uniform traffic citation and a copy of Godlewski’s conviction and sentence. Nevertheless, “[w]hen the record is silent, waiver is never presumed, and the burden is on the [S]tate to present evidence of a valid waiver.” (Citations and punctuation omitted.) Braswell v. State, 240 Ga. App. 510 (1) (523 SE2d 904) (1999). The State, however, concedes that it cannot carry its burden of showing that Godlewski entered a valid waiver of the right to counsel. Therefore, we must reverse Godlewski’s conviction and remand his case for a new trial. Deren, supra, 237 Ga. App. at 388.

Judgment reversed and remanded.

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


text:
    A02A0329.
    ABARCA v. THE STATE.
    (567 SE2d 368)
   Barnes, Judge.

Rosendo Abarca appeals the trial court’s order denying his motion to dismiss his hit and run prosecution on the ground of double jeopardy. For the reasons that follow, we affirm.

On the second day of Abarca’s earlier trial, scheduled to begin at 9:00 a.m., the following exchange took place between defense counsel and the previous trial judge at 9:15 a.m.:

THE COURT: Are there any prosecutors in the hall?
THE DEPUTY: No, your Honor.
THE COURT: Are there any prosecutors present? I’ll entertain a motion from the defense.
[DEFENSE COUNSEL]: We’d like to request that the court grant a directed verdict of not guilty for the defendant.
THE COURT: I will dismiss for want of prosecution.
[DEFENSE COUNSEL]: That, too.
THE COURT: All right. ... I will grant the motion.
[DEFENSE COUNSEL]: Thank you, judge.

The trial court then entered a written order summarizing the events in the courtroom, and dismissing the case for want of prosecution, noting that it had granted the defendant’s motion to dismiss the case for want of prosecution. It later denied the State’s motion for reconsideration, noting that the defendant “elected to seek termination of the case against him on a basis unrelated to guilt or innocence,” so double jeopardy considerations did not bar a retrial. The court also recused itself from further proceedings.

The defendant subsequently moved the new trial judge to dismiss the prosecution against him on the ground of double jeopardy because, after evidence was presented to an impaneled jury, the previous judge dismissed the matter for failure to prosecute. After the State opposed the motion, the trial court denied it, holding that retrial was not barred because the defendant requested or acquiesced to the dismissal.

The defendant had been placed in jeopardy before the earlier trial was terminated, as the previous jury had been impaneled and sworn. See Ferguson v. State, 219 Ga. 33, 35 (3) (131 SE2d 538) (1963). Our constitution prohibits a person from being tried more than once for the same offense, except when a new trial has been granted after conviction or in case of mistrial. Ga. Const, of 1983, Art. I, Sec. I, Par. XVIII.

The circumstances under which a defendant who successfully moves for mistrial may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Prosecutorial misconduct amounting to harassment or overreaching, even if sufficient to justify a grant of mistrial, is nevertheless insufficient to bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.

Decided June 20, 2002.

George Handelsman, Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

(Citations, punctuation and emphasis omitted.) State v. Oliver, 188 Ga. App. 47, 48 (1) (372 SE2d 256) (1988).

In this case, the evidence does not establish that the prosecutor intended to provoke the defendant into moving for a mistrial and thus subvert the protections afforded by the Double Jeopardy Clause. The defendant himself moved to dismiss the case for want of prosecution, which is equivalent to moving for a mistrial. See State v. Cooperman, 147 Ga. App. 556, 557-558 (249 SE2d 358) (1978). Because “a second prosecution is not barred if the defendant consents or waives his right to object to the mistrial which ended the first trial,” the trial court did not err in denying the defendant’s motion to dismiss. State v. Abdi, 162 Ga. App. 20, 21 (288 SE2d 772) (1982).

Judgment affirmed.

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