text:
    A94A0818.
    BUTTS COUNTY et al. v. PINE RIDGE RECYCLING, INC.
    (445 SE2d 294)
   Johnson, Judge.

Pine Ridge Recycling, Inc., which owns property in Butts County, applied to the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources for a permit to operate a solid waste landfill on the property. Pine Ridge has been unable to obtain final approval for a permit from the EPD because Butts County has refused to give written verification that the proposed landfill is consistent with its multijurisdictional solid waste management plan. See OCGA § 12-8-24 (g). Pine Ridge filed the instant declaratory judgment and mandamus action against Butts County, its board of commissioners, and individual members of the board. The court granted partial summary judgment to Pine Ridge, finding that the proposed landfill is consistent with Butts County’s solid waste management plan and ordering the county to provide verification of such consistency to the EPD. Butts County appeals.

1. Butts County claims that the trial court erred in its interpretation of the Georgia Comprehensive Solid Waste Management Act. OCGA § 12-8-20 et seq. The trial court ruled that under the Act, Butts County must base its decision as to whether the Pine Ridge site is consistent with the county’s solid waste management plan solely on environmental and land use factors. Butts County argues that the court erred in failing to rule that in addition to these factors, Butts County may also consider the negative impact the proposed site will have on its program to reduce the amount of solid waste disposed of in the county. In making this argument, Butts County relies on OCGA §§ 12-8-21 (c) and 12-8-39.1, which require that the solid waste management plan of each city or county contain a program to reduce the amount of municipal solid waste being received at its disposal facilities by 25 percent. Construing this requirement in the context of the entire Act, we find Butts County’s argument to be unpersuasive.

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly.” OCGA § 1-3-1 (a). Here, the General Assembly’s intent is plainly stated in the Act. The policy of the State of Georgia is “to institute and maintain a comprehensive state-wide program for solid waste management.” (Emphasis supplied.) OCGA § 12-8-21 (a). Moreover, “[i]t is the intent of the General Assembly that every effort be undertaken to reduce on a statewide per capita basis the amount of municipal solid waste being received at disposal facilities during fiscal year 1992 by 25 percent by July 1, 1996.” (Emphasis supplied.) OCGA § 12-8-21 (c). We must construe the Act to effectuate the General Assembly’s intent and give force to all the Act’s provisions. City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991); Atlanta Rent-A-Car v. Jackson, 204 Ga. App. 448, 450 (419 SE2d 489) (1992). We therefore construe the statutory requirement that local governments implement programs to reduce the solid waste received at their disposal facilities as a method both to achieve the state-wide goal of 25 percent waste reduction and to measure the rate at which waste is being reduced; it is not, contrary to Butts County’s claim, a means by which local governments can refuse the presence of solid waste handling facilities. If Butts County’s interpretation of the statutory scheme were correct, a county could meet the waste reduction goal simply by refusing to allow any solid waste handling facilities inside its boundaries and by shipping all its solid waste to other counties. This interpretation not only contravenes the explicit intent of the Act to have a comprehensive state-wide program, it is also illogical. Solid waste reduction cannot be achieved simply by shipping the waste elsewhere; rather, as set forth in OCGA § 12-8-21 (b), the appropriate manner for reducing solid waste is “through source reduction, reuse, composting, recycling, and other methods.” (Emphasis supplied.)

“Where the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citations and punctuation omitted.) Nat. Svcs. Indus. v. Transamerica Ins. Co., 206 Ga. App. 337, 339 (1) (425 SE2d 327) (1992). OCGA § 12-8-31.1 (b) plainly provides, “[t]he local, multijurisdictional, or regional solid waste plan . . . shall identify those sites which are not suitable for solid waste handling facilities based on environmental and land use factors.” (Emphasis supplied.) Construing this statute by its plain terms, we hold that a local jurisdiction can only identify a site as unsuitable for a solid waste facility based on environmental and land use factors, not based on the fact that such a facility might increase the amount of waste disposed of in the county.

We note that our interpretation of the Act is consistent with that of the EPD director, who is charged with primary responsibility for the state’s solid waste management program. OCGA § 12-8-21 (d). In an amicus curiae brief, the director states, “OCGA § 12-8-39.1 should not be construed so as to prevent the siting of new facilities within a local jurisdiction in order to meet the 25% reduction goals. This construction would eliminate regional facilities, a centerpiece of the Act. . . . OCGA § 12-8-39.1 is intended as a tool for local jurisdictions to determine their progress toward meeting the 25% per capita reduction goal, and . . . consistency with a solid waste plan should be determined based upon environmental and land use factors, as stated in OCGA § 12-8-31.1 (b).” Although courts are not bound by the EPD director’s interpretation of the Act, it is entitled to great weight and deference. See Hosp. Auth. &c. v. State Health Planning Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912) (1993). Giving such deference to the director’s interpretation, we hold that the trial court did not err in its construction of the Act.

2. Butts County contends that the court erred in finding that it failed to demonstrate any valid land use or environmental criteria for excluding the Pine Ridge site from its solid waste management plan. The county claims that three valid criteria it relied on for excluding the site are solid waste reduction in the county, proximity of the site to an airport, and voter support of a publicly, rather than a privately, operated landfill. As already discussed in Division 1 of this opinion, Butts County’s argument concerning its attempt to reduce solid waste in the county by excluding the Pine Ridge site is without merit. The county’s other two claims also lack merit.

The Georgia Department of Community Affairs (DCA), in compliance with the Act, prepared the Minimum Planning Standards and Procedures for Solid Waste Management: Local and Multijurisdictional Plans. The Minimum Planning Standards provide a list of some of the environmental and land use factors to be considered in determining whether a site is unsuitable for a solid waste handling facility. The environmental limitations include floodplains, wetlands, groundwater recharge areas, water supply watersheds, fault zones, seismic impact zones and unstable areas. The land use factors include zoning restrictions, built-up areas, distance from national historic sites, proximity to airports, distance from jurisdictional boundaries and access. In the instant case, Butts County properly raised the proximity of the Pine Ridge site to an airport as a land use factor that it must consider. The trial court, however, ruled in favor of the county on this issue. The court held that Butts County must provide verification to the EPD that the Pine Ridge site is consistent with its solid waste management plan “except as to that portion contiguous to and including [the airport] which may violate [DCA] Rule 391-3-4-05 (1) (c).” Since the trial court found that the Pine Ridge site is consistent with the Butts County plan only to the extent that it falls outside the area banned by the DCA as too near an airport, the county has shown no error.

The court also did not err in failing to find that voter support for a publicly, instead of a privately, run landfill is a valid land use or environmental factor. While it is true that public involvement should be an element of a local solid waste management plan, the DCA Minimum Planning Standards list that involvement as an element separate and distinct from the environmental and land use considerations. The DCA Minimum Planning Standards provide that the goal of public involvement is to educate residents about solid waste management in terms of littering, recycling and waste reduction. Regardless of how a local government attempts to achieve this goal, the public involvement element of the local solid waste plan clearly is not a land use or environmental factor upon which the local government can find that a proposed site is inconsistent with the plan.

3. Butts County asserts that the trial court erred in ordering it to verify to the EPD that the Pine Ridge site is consistent with its solid waste management plan. The county argues that the appropriate remedy is for the court to invalidate the plan and order the county to rewrite it properly. We disagree and find that this case is analogous to and controlled by the decision in Tilley Properties v. Bartow County, 261 Ga. 153 (401 SE2d 527) (1991). In that case, the appellants were unable to get a permit from EPD to operate a rock quarry because the local government, based on an illegal zoning ordinance, refused to verify that the appellants complied with the ordinance. The trial court denied the appellants’ request for a writ of mandamus. The Supreme Court reversed the lower court, stating, “a condition precedent to the issuance of the permit [by EPD] is a certificate of land use approval from the local governing authority. Without the certificate of land use approval, a surface mining permit cannot be issued, and without the surface mining permit, a quarry cannot be allowed. A ‘county has the duty and obligation to work with property owners to allow them the highest and best use of their property. . . .’ [Cit.] Where, as in this case, the zoning ordinance is invalid, there is no valid restriction on the property, and the appellant has the right under the law to use the property as it so desires. Because there is no other specific legal remedy for the legal right, OCGA § 9-6-20, a writ of mandamus will lie to compel the officer to issue a certificate of land use to the appellant so that it might attempt to obtain a surface mining permit.” Id. at 155 (2).

Decided May 27, 1994

Reconsideration denied June 9, 1994

Constangy, Brooks & Smith, Gregory W. Blount, Donald W. Benson, Hemmann & Hemmann, Paul E. Hemmann, for appellants.

George E. Butler II, Smith, Gambrell & Russell, Stephen E. O’Day, for appellee.

In the instant case, Butts County’s refusal to verify that the Pine Ridge site is consistent with its solid waste management plan is invalid. Pine Ridge has the right to use its property as a solid waste landfill so long as it complies with all the requirements of the Act, including being consistent with the Butts County plan and obtaining a permit from the EPD. OCGA § 12-8-24. Because Pine Ridge has no other specific legal remedy for protecting its right, the trial court correctly found that a writ of mandamus will lie to compel Butts County to certify that the Pine Ridge site is consistent with its multijurisdictional solid waste management plan.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A1008.
    FINCH et al. v. WEAVER.
    (445 SE2d 289)
   Blackburn, Judge.

The appellants, Joyce and John Finch, commenced this action against Neal Weaver on April 14, 1993, seeking to recover for personal injuries and loss of consortium resulting from a motor vehicle collision between Joyce Finch and Weaver on September 22, 1990. The trial court granted summary judgment to Weaver on the ground that the action was barred by the applicable statute of limitation. This appeal followed.

Joyce Finch filed an earlier action against Weaver on August 17, 1992, but voluntarily dismissed it on February 12, 1993, without prejudice. At the time of service, Weaver resided in a trailer located within a family compound owned by his father. Weaver’s sister, upon whom service was made, resided with the father in a separate dwelling located within the compound. Service was accomplished on the common grounds outside the dwellings, which were approximately 50 feet apart, and was accepted by the sister after she identified herself and her relationship to the defendant.

Weaver’s father owns both properties which, until 1992, had been divided into two parcels with separate mailing addresses. At the suggestion of the Gwinnett County Tax Assessor’s office, Weaver’s father consolidated the two parcels on January 15, 1992, in order to reduce his property tax liability.

1. With regard to Joyce Finch’s personal injury claim, the applicable period of limitation was two years from the date of the collision. OCGA § 9-3-33. Branton v. Draper Corp., 185 Ga. App. 820 (366 SE2d 206) (1988). The original action, which was dismissed, was filed within the statute of limitation. The instant action was commenced more than two years after the collision, but within six months of the dismissal of the original action. However, in order for the instant case to qualify as a renewal action under OCGA § 9-2-61, the earlier filing must have been a valid action, with proper service upon Weaver. Acree v. Knab, 180 Ga. App. 174 (348 SE2d 716) (1986).

The requisite service may be accomplished by delivering a copy of the summons and complaint to the defendant personally, or by leaving such copies at his “dwelling or usual place of abode with someone of suitable age and discretion residing therein. . . .” OCGA § 9-11-4 (d) (7); Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). “The return of service establishes prima facie evidence that personal service was made upon defendant. [Cit.]” Garrett v. Godby, 189 Ga. App. 183, 184 (1) (375 SE2d 103) (1988). In the case at bar, the summons and complaint in the first action were left with Weaver’s sister on the property containing both the house and the mobile home, all of which was owned by Weaver’s father. At the time of service, there were no markings on the structures indicating street addresses or occupants, and the property was considered one piece of property for tax purposes. Additionally, only the Weaver family lived on the property; they shared equal access to recreational areas on the property, and Weaver had a key to the house and continued to eat meals, watch television, and do his laundry there. Under these facts, we find “a continuing familial relationship between” Weaver and the rest of his family, see Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983), and that there was insufficient evidence to overcome the prima facie presumption that service was proper. Accordingly, we find the trial court erroneously granted summary judgment for Weaver on Joyce Finch’s personal injury claim.

Decided May 26, 1994

Reconsideration denied June 9, 1994

Steven K. Leibel & Associates, Steven K. Leibel, David C. Ates, for appellants.

Murray & Temple, William D. Strickland, John C. McCaffery, for appellee.

2. The applicable limitation period for John Finch’s loss of consortium claim is four years. OCGA § 9-3-33. Inasmuch as the second action was commenced before the expiration of the four-year period and the validity of the personal service upon Weaver in April 1993 was undisputed, the trial court also erred in granting summary judgment for Weaver on the loss of consortium claim. Babb v. Cook, 203 Ga. App. 437 (1) (417 SE2d 63) (1992).

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A0700.
    NICKELL v. IAG FEDERAL CREDIT UNION.
    (445 SE2d 335)
   Beasley, Presiding Judge.

In this appeal from a grant of summary judgment, appellant has the benefit of all favorable evidentiary inferences.

Nickell had a revolving credit loan from IAG secured by shares of IBM stock. Under the loan agreement, IAG had the right to liquidate the stock unilaterally when Nickell was in default and Nickell could not sell the shares without IAG’s permission. In October 1987 changes in the value of the stock resulted in the loan being undercapitalized, and IAG sent Nickell a letter on October 27 informing him of this fact. The letter stated that Nickell must take immediate action to fully secure the loan and discussed how this should be done if he wished to deposit more shares or transfer funds held in an IAG account. The letter required a response in 15 days and stated that he “must respond by completing the coupon below.” At the bottom of the letter were three options, each with a space in which to place a check mark. One option addressed the deposit of shares, one addressed the transfer of funds, and one stated “Please sell my stocks (whole shares only), I agree to pay the deficiency amount.” Nickell checked this third option and returned the form within the time specified.

IAG did not sell Nickell’s shares when it received the form. Had it done so, Nickell’s liability for deficiency would have been approximately $35,000. He was informed on December 7, 1987 that his loan was undercapitalized by $66,238.29. He informed IAG that he could not absorb such a deficiency, and IAG agreed not to liquidate until advantageous to Nickell. Nickell continued to make interest payments totaling $105,379.78 through March 1991.

IAG liquidated all of NickelPs collateral, leaving him with a size-able deficiency, and sued him for the principal sum of $80,160.81, plus interest, attorney fees, and costs. It was awarded summary judgment. Nickell counterclaimed for breach of contract and contends that if IAG had liquidated his shares in response to his November 9 election his debt would be considerably smaller. The loan agreement contains a provision that New York law governs disputes arising under it.

1. Nickell argues that IAG had an obligation to sell the shares under a New York statute governing the rights and duties of a holder of collateral. N. Y. Uniform Commercial Code § 9-207 (McKinney 1990). It states in part that “[a] secured party must use reasonable care in the custody and preservation of collateral in his possession.” N. Y. Uniform Commercial Code § 9-207 (1) (McKinney 1990). The credit agreement also includes a pledge by IAG to use “reasonable care for the custody and preservation of [the] collateral.” Failure to use reasonable care creates liability on the part of the secured party for any losses due to the failure. N. Y. Uniform Commercial Code § 9-207 (3) (McKinney 1990).

Nickell argues that this duty was breached by the failure to sell the shares on or about November 12, 1987, when IAG should have received the election he mailed on November 9. IAG responds that the decision of whether to liquidate was reserved to it alone under the credit agreement, that the agreement prevented Nickell from selling without its permission, and that § 9-207 did not impose upon IAG the duty claimed by Nickell. The issue then is simply what is the extent of the duty imposed by New York’s § 9-207.

It does not appear that New York’s highest court, the Court of Appeals, has addressed this issue; all cases cited by the parties or identified by us are from the intermediate Supreme Court, Appellate Division, or lower courts. Nickell cites Grace v. Sterling, Grace & Co., 289 NYS2d 632 (1968), for the proposition that whether the lender used reasonable care to preserve the value of securities pledged as collateral is a fact question. IAG cites First Trust &c. Co. v. W. W. Conde Hardware Co., 262 NYS2d 565 (1965), for the proposition that there is no duty to sell pledged securities in a declining market to preserve their value. To the extent that there is a conflict in these precedents as to the general duty under § 9-207, we believe the later case of Grace v. Sterling should control.

This case, however, does not require us to identify the full scope of the duty imposed by New York’s Uniform Commercial Code § 9-207. It is clear that under that Code section “when a demand is made of a creditor to liquidate the collateral and, after refusal to liquidate, the collateral substantially declines in value, the failure to liquidate, if negligent, is a breach of the secured party’s duty to use reasonable care in the custody and preservation of collateral. [Cits.]” Reich v. Bowery Savings Bank, 583 NYS2d 980, 982 (1992). We cannot say as a matter of law that Nickell’s response to the October 27, 1987 letter, with an indication that he had elected liquidation, does not constitute a “demand” to sell; to the contrary, it appears that it does. See Fed. Deposit Ins. Corp. v. Frank L. Marino Corp., 425 NYS2d 34 (1980). Whether the failure to liquidate was negligent is a jury question and the grant of summary judgment as to this issue was error.

2. Our decision that summary judgment was improper does not render moot the remainder of Nickell’s appeal, as he advances other theories that could be established at trial. Nickell maintains that the October 27 letter with its “election coupon” at the bottom constituted an offer to liquidate his shares and apply the proceeds to the loan, which he accepted. He contends that IAG then breached this agreement when it failed to sell his shares in a reasonable time after receiving his acceptance. The original agreement, as it appears in the record here, does not contain any clause limiting modifications or additional agreements.

The letter of October 27 appears to include an offer to modify the original credit agreement. The letter outlined the problem and referred to Nickell’s options. It demanded an election on Nickell’s part as to how he would address the undercollateralization, providing a response form at the bottom. It required response in 15 days and stated that he “must respond by completing the coupon below.” The coupon itself listed sale and liability for any deficiency as an option; sale was not a course of action first proposed by Nickell. Additionally, it appears that the line allowing the option of sale was added to the IAG’s undercollateralization notice specifically to give borrowers an option as to what could be done to correct the problem. Nickell complied with the response terms as set forth in the letter. These elements comport with contract formation under New York law, Valashinas v. Koniuto, 124 NE2d 300 (N. Y. 1954), and Nickell’s response created a modification to the original agreement. Such a written modification need not be supported by consideration. N. Y. General Obligations Law, § 5-1103 (McKinney 1990).

It was error for the trial court to award summary judgment on the issue of whether the October 27 letter and its response established a modification of the original agreement.

3. Nickell maintains that on December 7, 1987, an oral modification of the loan agreement was made, and that this was breached. Again, the original credit agreement, as it appears in the record, does not contain any clause prohibiting oral modification. IAG contends that any oral agreement was not supported by consideration. Nickell maintains that the breach of IAG’s duty of care under § 9-207 could constitute consideration. That, however, is not a complete statement of the law; it is the promise to forbear from enforcing a cause of action one might have that can constitute consideration, not the mere presence of the cause of action. Joab Commercial Laundries v. Reeder, 552 NYS2d 361, 362 (1990). The record does show evidence of mutual promises to forbear from asserting rights, and consideration does exist for the December 7, 1987, oral modification.

IAG states that Nickell ratified any departure from the oral agreement, but the communications to which it cites do not show ratification of IAG departure from the December 7 agreement.

4. Nickell maintains that promissory estoppel would also bar summary judgment for IAG, based on his reliance upon the representations made in the October 27 letter and the November 9 conversation. As a promissory estoppel theory lies outside the contract, it is not governed by New York law. “In order to prevail on a promissory estoppel claim, ‘[Nickell] must demonstrate that (1) [IAG] made certain promises, (2) [IAG] should have expected that [Nickell] would rely on such promises, and (3) [Nickell] did in fact rely on such promises to [his] detriment. (Cit.)’ [Cit.] See also OCGA § 13-3-44.” Lake Tightsqueeze, Inc. v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 180 (2) (435 SE2d 486) (1993).

Nickell has met these requirements. The October 27 letter carries the implied promise that IAG would liquidate his stock if he so elected. According to his verified answer and deposition testimony, IAG promised to cooperate with him and not liquidate any stocks unless advantageous to him. It should have been expected that reliance on these promises would prevent Nickell from initiating any efforts of his own to liquidate the stocks on November 10, 1987, or any subsequent date, before it was selling at a price more advantageous to him. Although there is not straightforward testimony that Nickell did not pursue liquidation because of the promises, that is the clear inference. As Nickell paid all outstanding interest for a significant period after the promises were made, his reliance was patently to his detriment.

5. Finally, Nickell contends that an award of attorney fees was improper as there was no proof of the amount of reasonable fees submitted. Our decision that summary judgment was not proper makes this issue moot, even had proof of reasonable attorney fees been presented.

Decided June 9, 1994.

Boyce, Ekonomou & Atkinson, Andrew J. Ekonomou, Howell A. Hall, for appellant.

Macey, Wilensky, Cohen, Wittner & Kessler, Richard B. Maner, Susan L. Howick, for appellee.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       Other cases addressing this issue cited by IAG are either from other jurisdictions or do not rely upon § 9-207.


author: Pope, Chief Judge.

text:
    A94A0805.
    JACKSON v. THE STATE.
    (444 SE2d 875)
   Pope, Chief Judge.

Defendant Michael M. Jackson appeals from his conviction for felony obstruction of a law enforcement officer, OCGA § 16-10-24 (b), on the ground the evidence was insufficient to support his conviction. Specifically, he argues the State failed to prove he committed the offense of obstruction in the manner alleged in the indictment.

While on patrol on October 24, 1992, Deputy Stan Hartline of the Dade County Sheriff’s Office observed defendant’s brother, Mark, whom he knew had no valid driver’s license, driving a pickup truck that bore no license tag. The truck pulled into a residential driveway and the deputy pulled his patrol car in behind it. As the deputy questioned Mark about the violations, he asked Mark to remove his hands from his pockets. Mark refused and fled into the woods behind the house. Several people then emerged from the house and began shouting at the deputy, who called for backup. Mark reappeared and began shouting obscenities at Deputy Greg Latta, who had responded to the call for assistance. As Deputy Hartline advised Mark he was under arrest, Mark began to struggle and had to be subdued by both deputies and the sheriff who had also responded to the call. Deputy Hartline testified that around this same time, defendant stood in the back of a truck with a tire iron raised over his head and threatened to kill him and the other officers if they did not leave his brother alone. Defendant, who was only a few feet away from Deputy Hartline and the sheriff, cursed at the officers and repeated this threat several times. At this point, Deputy Hartline drew his revolver and advised defendant to drop his weapon. After being advised three times to drop the weapon, defendant did so. The other officers present corroborated Deputy Hartline’s testimony. Defendant testified that he simply beat the back of the truck with the tire iron and did not fight with any of the officers.

A person commits the offense of felony obstruction of a law enforcement officer when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer. . . .” OCGA § 16-10-24 (b). The indictment charged defendant with knowingly and wilfully obstructing Deputy Stan Hartline in the lawful discharge of his duties by “using loud and profane language and by fighting said officer.” The State must prove the offense of obstruction was committed in the manner alleged in the indictment. Evans v. State, 138 Ga. App. 620 (1) (227 SE2d 448) (1976). Defendant argues the State failed to do this because there is no evidence he physically fought with Deputy Hartline. We disagree.

Decided June 9, 1994.

Charles G. Wright, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

The word “fight” as a noun has been defined not only as a physical struggle, but also as “[a] verbal disagreement.” Webster’s New Intl. Dictionary, 2d ed., Unabridged. The definition of “fight” or “fighting” as a verb includes “[t]o act in opposition to anything; to struggle; contend; strive; clash.” Id. Verbal threats of force or violence can obstruct an officer and authorize a felony conviction under OCGA § 16-10-24 (b). Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992). Communications that reasonably can be interpreted as threats of violence can constitute opposition to an officer’s authority sufficient to support a conviction for obstruction. Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990).

As related above, all of the officers present testified that defendant, who was only a few feet from Deputy Hartline and the sheriff, raised a tire iron above his head and threatened to kill the officers if they did not leave his brother alone. Defendant repeated this threat several times and initially refused to drop the tire iron. At the very least, this evidence established that defendant had a verbal disagreement with Deputy Hartline over the arrest of his brother and that he acted in opposition to Deputy Hartline’s authority, thereby interfering with the performance of the deputy’s duties in arresting defendant’s brother. That the indictment used the word “fighting” did not require the State to prove defendant physically fought with the officer; it was enough to show defendant verbally threatened him and acted in opposition to his authority by wielding the tire iron. Accordingly, we find the evidence was sufficient to allow a rational trier of fact to find defendant guilty beyond a reasonable doubt of felony obstruction of a law enforcement officer as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Johnson, Judge.

text:
    A94A1241.
    HENRY COUNTY BOARD OF REGISTRARS et al. v. FARMER.
    (444 SE2d 877)
   Johnson, Judge.

Brenda Farmer was appointed to the Henry County Board of Registrars by the chief judge of Henry County Superior Court. On October 22, 1992, Farmer addressed a letter “To Whom It May Concern” in which she stated that she was resigning from her post effective immediately. The letter was delivered to Betty Latimer, the chief registrar. Farmer later telephoned Latimer, offering to apologize and asking to rescind her resignation. Latimer told her that she had already been administratively terminated and nothing could be done to reinstate her. Farmer also attempted to rescind her resignation in writing one week later. Eventually, Farmer filed this action seeking reinstatement and back pay, claiming that the October 22 resignation was ineffective because it was not directed to and was not accepted by a judge of the superior court of the county as required by OCGA § 21-2-211. During the pendency of the litigation, Farmer’s term of office expired, rendering the issue of reinstatement moot and limiting the actión to one for back pay.

Following a bench trial, in which the above facts were not in dispute, the trial court concluded that OCGA § 21-2-211 requires that the chief judge accept the resignation of a registrar and that the Code does not authorize delegation of that duty to the chief registrar. Therefore, the resignation was ineffective and Farmer was awarded back pay.

1. Henry County first asserts that the trial court erred in concluding that the resignation of a member of the County Board of Registrars must be accepted by the chief judge to be effective. The language at issue in OCGA § 21-2-211 provides that any registrar may resign at any time by submitting a resignation to the judge of the superior court in each county or the senior judge in time of service in those counties having more than one judge. Henry County argues that the statute requires only the submission of a resignation, and that Latimer forwarded Farmer’s resignation to the judge, thereby satisfying the requirements of the statute. We disagree. Henry County urges a selectively strict reading of the statute. It asks us to strictly construe that portion of the statute which requires only that a resignation be submitted, not accepted. But, it would ignore the rest of the sentence which requires that the resignation be submitted to the judge who appointed the registrar. It argues that submission to anyone who then forwards it to the judge satisfies the statute.

Decided June 9, 1994.

Blount & Cash, Ernest D. Blount, Martin C. Jones, for appellants.

Harrison & Harrison, Stephen P. Harrison, for appellee.

While this precise issue involving county registrars has not previously been addressed by the appellate courts in Georgia, we find it instructive to review OCGA § 21-2-211 in light of OCGA § 45-5-1 (a) (2) which states that all offices in the state shall be vacated by resignation, when accepted. Prior to acceptance, the resignation is ineffective. See Smith v. Miller, 261 Ga. 560, 561 (407 SE2d 727) (1991). This court recognized that a teacher’s resignation prior to its acceptance by the board of education may be rescinded. Allen v. Lankford, 170 Ga. App. 605, 606 (317 SE2d 645) (1984). Henry County has not provided this court with any authority, other than its narrow reading of the statute, in support of its position that the mere submission of a resignation to someone not authorized to accept it will render a resignation irrevocable. Even though there was evidence that Latimer had forwarded the letter of October 22 to the chief judge, there was no evidence that the letter was either received or accepted. Giving the statute its reasonable intendment, as well as reading it in conjunction with the authorities cited above, we conclude that the trial court’s finding that the resignation was not effective until accepted was not clearly erroneous, and will not be disturbed.

2. Having found that Farmer’s purported resignation of October 22, 1993 was ineffective, we need not reach Henry County’s second allegation of error.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A1409.
    OBIOZOR v. THE STATE.
    (445 SE2d 553)
   Birdsong, Presiding Judge.

Godfrey Okechukwu Obiozor appeals his conviction of trafficking in heroin of more than 28 grams and unlawfully having under his control marijuana of less than one ounce in weight. Held:

1. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), establishes the proper test to use when sufficiency of the evidence is challenged when “the challenge arises from the overruling of a motion for directed verdict . . . based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra. Haxho v. State, 186 Ga. App. 393 (367 SE2d 282) is physical precedent only and, also, is distinguishable from this case; it is not controlling.

2. Appellant’s claim of denial of his statutory and constitutional rights of speedy trial are not persuasive.

(a) Appellant failed to file timely his request for speedy trial under OCGA § 17-7-170. Also, at the motion hearing, appellant’s counsel expressly abandoned on the record any claim of violation of appellant’s statutory speedy trial rights. As this issue was not effectively litigated before the trial court, it has not been preserved on appeal. See Nodvin v. West, 197 Ga. App. 92, 95 (3a) (397 SE2d 581). Further, an appellant cannot complain of a ruling which his own trial conduct or procedure aided in causing (Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309)); and, in no situation, will a trial judge’s ruling be reversed for not going further than requested. Lyon v. State, 262 Ga. 247, 248 (3a) (416 SE2d 523).

(b) We also find appellant’s claim of violation of his constitutional right to a speedy trial to be without merit. Mere passage of time, standing alone, does not compel a finding of denial of due process. Simpson v. State, 150 Ga. App. 814, 815 (258 SE2d 634). Nevertheless, the delay in bringing appellant to trial was sufficient, for purposes of determining whether his Sixth Amendment speedy trial rights were violated, to invoke the balancing test of Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101). An original indictment was returned and filed against appellant on October 2, 1991; he was brought to trial November 1, 1993, and verdict was returned on November 2, 1993. In the interim, on January 8, 1992, a federal indictment was entered against appellant who ultimately pled guilty on June 4, 1992, and was sentenced in the United States District Court of the Southern District of Texas. The term of confinement was 210 months. Subsequently, appellant was transferred to Louisiana for federal incarceration. On March 3, 1993, appellant, while in federal confinement, filed pro se a motion to dismiss or, in the alternative, an order that he be brought to trial on the State charges forthwith. His application for appointment of counsel for indigent defendant was filed August 26, 1993. On September 13, 1993, appointed defense counsel filed a notice of appearance. On that same day, defense counsel filed a motion for extension of time to file additional motions, asserting, inter alia, that he could not adequately represent appellant without a reasonable time extension to file defense motions. That same date, defense filed a self-stylized Brady motion for discovery of certain specified reports, documents, and witness information; and in the alternative requesting an in camera inspection of the documents therein identified. There exists no evidence of record that the delay in this case was attributed to a “serious abuse” by means of a “ ‘deliberate attempt’ ” on the part of the State to delay trial to hamper the defense. Compare Perry v. Mitchell, 253 Ga. 593, 594-595 (322 SE2d 273). Although the State had a duty, under the Sixth Amendment as made applicable by the Fourteenth Amendment, to make a diligent, good-faith effort to bring petitioner to trial in Georgia notwithstanding his trial and incarceration for a federal offense (Smith v. Hooey, 393 U. S. 374 (89 SC 575, 21 LE2d 607)), the record is void of any evidence that the State failed timely to initiate a request for appellant’s release, especially after the date when appellant filed his demand to dismiss or for immediate trial. Further, appellant does not claim any actual prejudice in the presentation of his defense arising from the delay; any other harm flowing to appellant was minimal within the meaning of Barker v. Wingo, supra at 534. Assuming appellant has suffered some degree of anxiety and concern as a result of the pending public accusation — even though he was confined miles away in another jurisdiction for a violation of federal law — nevertheless, some of the delay in prosecuting this case was attributable to his confinement by federal authority and some of the delay was attributable to his own trial procedure (for example, in filing the motion for extension of time and indicating a lack of ability to effectively proceed to trial at that instant). Compare Perry v. Mitchell, supra, with Smith v. Hooey, supra, and Hill v. Wainwright, 617 F2d 375 (5th Cir.). Applying the balancing factors of Barker v. Wingo, supra, we find that appellant was not deprived in this instance of his due process right to a speedy trial. Compare Foster v. State, 211 Ga. App. 22, 23 (437 SE2d 872) (anxiety and concern arising from incarceration will not, standing alone, create prejudice sufficient to compel a dismissal).

3. (a) Appellant asserts that the trial court erred in admitting similar transaction evidence which erroneously placed appellant’s character in evidence. However, material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. Greer v. State, 199 Ga. App. 106, 107 (403 SE2d 825). Once the three affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2a) (409 SE2d 649) have been met, evidence of similar transactions is admissible even though the defendant’s character is incidentally placed in evidence thereby (see Boyce v. State, 258 Ga. 171 (366 SE2d 684)). Any danger arising from this incidental placing of an appellant’s character in evidence is offset when a. balancing test is applied to determine whether the relevance of the similar transaction evidence outweighs its prejudicial impact. See generally Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455); see also Williams v. State, 194 Ga. App. 822 (392 SE2d 297). To insure that the evidence of similar transaction is not being introduced solely to raise an improper inference as to an accused’s character, we have tested it for legal relevance. Adams v. State, 208 Ga. App. 29, 34 (3a) (430 SE2d 35) (physical precedent only as to Division 3). For reasons hereinafter discussed, we find the evidence of appellant’s conviction in federal court, following a plea of guilty to conspiracy to import into the United States heroin in excess of one kilogram, was admitted without error as similar transaction evidence. (Note: Testimony establishes the weight of the imported heroin as being approximately five kilograms or twelve-and-one-half pounds; heroin has a street value of about $1,000,000 a pound, and uncut heroin has a wholesale value of about $220,000 a kilo.) We further find that the probative value of this similar transaction evidence outweighs any potential for prejudice arising by incidentally placing appellant’s character in issue.

(b) Appellant enumerates as error that the standards for admission of similar transaction evidence were not sustained by the State. At trial appellant conceded the State had satisfied both the first and second affirmative requirements of Williams v. State, 261 Ga., supra at 642 (2a). Appellant also concedes in his brief that the State satisfied the requirement of presenting evidence that the appellant/defendant was the perpetrator of the independent crime; thus, this issue has been abandoned; likewise abandoned is any claim that the trial court failed to make the affirmative findings on the record required by Williams v. State, 261 Ga., supra. Court of Appeals Rule 15 (c) (2).

Before any evidence of an independent offense may be introduced, the State must show a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Campbell v. State, 263 Ga. 824, 825 (2) (440 SE2d 5). There is no requirement that the other transaction must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Sessions v. State, 207 Ga. App. 609 (1) (428 SE2d 652). The ultimate issue in determining admissibility of similar transaction evidence is not mere similarity but relevance to the issues of the case on trial. Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130). Where a similar transaction offense is shown to be part of a larger plan or scheme for which a defendant is being tried, a sufficient logical connection exists between the two offenses to meet the requirements of the third prong of Williams v. State, 261 Ga., supra (sufficient connection or similarity). See Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316).

The State has asserted several factors showing factual similarity between the similar transaction evidence and the heroin offense on trial; however persuasive this argument may be, even more persuasive is the valid connection existing between these two offenses. Appellant pled guilty and was convicted of conspiring to import over one kilogram of heroin into this country. It can only be reasonably inferred that parties would not conspire to bring a large ¿nd expensive quantity of illegal drugs into this country, thereby risking threat of detection and subsequent prosecution, without having a greater plan or scheme of transferring or distributing a substantial portion of those drugs to others for profit. Thus, the federal conspiracy offense had a unique connection to appellant’s trafficking in heroin offense; the conspiracy to import heroin offense unequivocally was relevant in that proof of it tends to establish, within the meaning of Campbell, supra, that appellant was trafficking in heroin as averred in the indictment. Cf. Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670). An appellate court will not reverse the correct ruling of a trial court regardless of the reasons given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

4. Appellant enumerates that the trial court erred in overruling appellant’s motion to strike hearsay evidence and abused its discretion in allowing the prosecution to rehabilitate the witness through additional questioning. This enumeration contains two separate assignments of error in violation of OCGA § 5-6-40. When, as here, appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383); Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820); West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567).

Although cursory examination reveals that any admission of hearsay testimony of Special Agent Klemm as to the similar transaction incident was harmless under the circumstances, we elect to review only appellant’s assertion that the trial court erred in allowing the prosecution to rehabilitate the witness Klemm by additional in-court questioning. A trial court has discretion in regulating and controlling the business of the court, and an appellate court should never interfere with the exercise of this discretion, unless it is plainly apparent that the discretion was abused and harmful error resulted. See Neesmith v. State, 161 Ga. App. 463, 464 (2) (288 SE2d 718). Under the attendant circumstances, the trial court did not abuse its discretion in deferring ruling on the objection and allowing additional questioning of the witness (see Maher v. State, 239 Ga. 305, 306 (2) (236 SE2d 647)); the object of all legal investigation is the discovery of truth. OCGA § 24-1-2; see Owens v. State, 205 Ga. App. 824, 825 (2) (423 SE2d 731).

Decided June 9, 1994.

David J. Walker, Sr., for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Presiding Judge. Andrews, Judge,

text:
    A94A0111.
    SHOEMAKE v. THE STATE.
    (445 SE2d 558)
   Beasley, Presiding Judge.

Shoemake appeals her conviction of armed robbery. OCGA § 16-8-41.

During the State’s cross-examination of a character witness as to defendant’s reputation, the district attorney asked for and was permitted a bench conference. He stated that he was going to ask the witness if he had heard that Shoemake pled guilty to the charge for which she was on trial. Defense counsel stated in objection, “That’s putting her character in issue.” The prosecuting attorney responded, “You just did that.” The court allowed the question, and the State cross-examined in the hearing of the jury:

“Q. Did you hear that she walked in this little room back here several months ago and [pled] guilty to this armed robbery charge she’s now standing trial for?”

After initially equivocating, the witness admitted that he had heard it. The State repeated:

“Q. You knew about it, didn’t you?

“A. Yeah.”

Shoemake was then called and explained to the jury that she had pled guilty to this charge because she was scared, did not realize that she was not guilty, and was told it was the best thing to do because she might get a life sentence; however, she ultimately changed her plea because she knew she was not guilty. In cross-examining Shoemake, the prosecuting attorney suggested that she changed her plea because she was going to get a longer sentence than she had expected. Shoemake again objected because there had been no sentence in that the plea had been withdrawn before a sentence was set or imposed, there was no evidence of such, and it was irrelevant. The objection was overruled.

After the defense witnesses had testified, defense counsel moved for a mistrial because of the State’s reference to Shoemake’s withdrawal of her guilty plea. Counsel stated that he did not have any law specifically on point, but that criminal plea negotiations are similar to civil settlement negotiations and that defendant had a constitutional right to withdraw the plea. The court denied the motion.

Shoemake contends that the court erred in allowing the prosecuting attorney to knowingly inject evidence of her withdrawn plea.

This evidence was inadmissible under OCGA § 17-7-93 (b): “At any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty’; and the former plea shall not be admissible as evidence against him at his trial.” See Byrd v. State, 186 Ga. App. 446, 449 (2) (367 SE2d 300) (1988); Mathis v. State, 145 Ga. App. 754 (245 SE2d 41) (1978); Smith v. State, 85 Ga. App. 459, 467 (3) (69 SE2d 281) (1952).

Shoemake did not expressly object to the evidence on this ground at trial. “In order for an assignment of error on the admission of allegedly inadmissible evidence to be valid it must appear that a specific objection to the evidence was made at the time it was offered, and it must further appear from the assignment of error what the objection was. [Cits.]” Jackson v. State, 108 Ga. App. 529, 530 (1) (133 SE2d 436) (1963). “ ‘ “Although there may be a ground of objection to testimony which would have been good if made, yet if the objection made be not good, it will be overruled. [Cit.]” [Cit.]’ [Cits.]” House v. State, 227 Ga. 257 (1) (181 SE2d 31) (1971). The objection made at trial, that the evidence was prohibited character evidence, is not reasserted on appeal. This may be so because it is not valid, as defendant had presented evidence of her good character. Although defendant later moved for a mistrial on the ground that the guilty plea was inadmissible even though she put her character in evidence, the denial of the motion is not enumerated as error. Moreover, the timeliness of the motion is questionable, because it was not made until after the close of all the evidence. See Nelson v. State, 208 Ga. App. 671, 672 (3) (431 SE2d 450) (1993).

Shoemake argues that the error in the admission of evidence of a defendant’s withdrawal of a guilty plea is of such serious magnitude that even if she erred procedurally in the manner and timeliness of pursuing it, a new trial is required. Considering the circumstances of this case, we agree.

It is evident that the prosecuting attorney knew the evidence was inadmissible because it called for a bench conference before he broached the subject. When defendant failed to object on the ground of the statutory prohibition, he proceeded. The court gave no curative instructions, thus distinguishing this case from Smith, supra. The jury here was simply permitted to consider the plea as substantive evidence of guilt and to weigh the significance of the withdrawal and defendant’s explanation of the entry of the plea.

Such evidence, inadmissible by statute, was highly prejudicial. The State used the guilty plea made in this very case to attack the evidence of good character, in order to persuade the jury that she did commit the crime. Obviously, it went directly to the question of her commission of the crime, as well.

The view expressed in the dissent in Smith, supra at 476, applies to this case: “In Flournoy v. State, [82 Ga. App. 518 (61 SE2d 556) (1950)], this court held as follows: ‘Courts of justice have the highest duty imposed upon them to safeguard the rights of defendants, and where ... a prosecuting attorney knowingly injects into the case by his questions an illegal element to the prejudice of the defendant, a mistrial is often the only complete and satisfactory remedy.’ [N]o harm can be done a defendant greater than that of calling to the attention of the jury the fact that he has previously pleaded guilty to the same charge for which he is on trial under a subsequent plea of ‘not guilty.’ For this reason no doubt, our lawmakers placed in the Code section the provision that ‘such former plea shall not be given in evidence against him on his trial.’ There are some prejudicial errors that can be corrected by instructions and rebukes on the part of the trial court. There are others that such measures only tend to accentuate. . . . [A]n error such as the one here involved belongs to the latter class and . . . only a mistrial could serve to correct it.”

In this case the court erred in ruling it admissible in the first place, when faced with an opportunity to avert an announced and calculated effort to introduce it. No steps were even taken by the court to lessen the impact of the evidence, when the belated motion for mistrial was made, assuming arguendo that instructions could have erased the earlier revelation and cured the error. See OCGA § 17-8-75; Castell v. State, 250 Ga. 776, 779 (lb) (301 SE2d 234) (1983).

We cannot say that the error was harmless. The evidence implicating defendant in the armed robbery was not so overwhelming that we can safely conclude that the jury would have been persuaded beyond a reasonable doubt of defendant’s guilt, without the evidence of her plea. McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993). She is entitled to a fair trial, one in which this evidence is excluded. Thomas v. State, 248 Ga. 247, 253 (11) (282 SE2d 316) (1981).

Judgment reversed.

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

Decided June 10, 1994.

Dan T. Pressley, Sr., for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Andrews, Judge,

dissenting.

As acknowledged by the majority, no objection was made below on the ground that OCGA § 17-7-93 (b) had been violated. Shoemake’s only statement after the reference to the guilty plea was made was “[t]hat’s putting her character in issue.” The witness had been called by Shoemake solely as a character witness and had already placed her character in issue. Jones v. State, 257 Ga. 753, 755 (1) (363 SE2d 529) (1988). The motion for mistrial was not made until after the close of the evidence and was not timely. Nelson v. State, 208 Ga. App. 671, 672 (3) (431 SE2d 450) (1993).

The objection made was not good and the objection now argued and addressed by the majority was never made below. Miller v. State, 260 Ga. 133, 135 (2) (390 SE2d 50) (1990); House v. State, 227 Ga. 257 (1) (181 SE2d 31) (1971); Edwards v. State, 188 Ga. App. 667, 670 (7) (374 SE2d 97) (1988).

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


text:
    A94A0781.
    CALDWELL v. THE STATE.
    (445 SE2d 560)
   Beasley, Presiding Judge.

Caldwell pled guilty to an indictment for burglary which charged that he entered a school without authority and with the intent to commit a theft. OCGA § 16-7-1. His motion to withdraw the guilty plea was denied.

1. Caldwell asserts that his plea was not freely and voluntarily made because he received ineffective assistance of counsel. He also contends that the trial court failed to ascertain on the record whether a factual basis existed for the plea, in violation of USCR 33.9. We heed not address the assertion of ineffective assistance of counsel.

The purpose of USCR 33.9 is to “ensure that the trial court is satisfied that a factual basis does exist for the plea.” Evans v. State, 212 Ga. App. 805, 807 (443 SE2d 296) (1994). There is no indication anywhere in the record that the trial court was so satisfied at the time it accepted the plea. The transcript of the acceptance of the guilty plea does not indicate any inquiry into the factual basis, and the remainder of the record does not suggest any awareness of a factual basis. When the record fails to show that the court ascertained a factual basis, there is no affirmative showing in the record that the plea was knowingly and voluntarily entered. Id.

Decided June 10, 1994.

J. D. Rasnick, Richard L. Montgomery, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William T. McBroom III, Daniel A. Hiatt, Assistant District Attorneys, for appellee.

A defendant’s challenge to the validity of his guilty plea imposes on the State the burden of establishing that the plea was knowingly and voluntarily made. Collum v. State, 211 Ga. App. 158, 159 (438 SE2d 401) (1993). Where “the record does not show that the trial court determined that a factual basis existed for the guilty plea . . . the State did not meet its burden of showing affirmatively by the record that appellant’s guilty plea was knowingly and voluntarily entered. [Cit.]” Id. at 160. Consequently, as in Collum, the trial court should have granted appellant’s motion to withdraw the guilty plea.

2. Caldwell’s other enumerations of error are moot.

Judgment reversed.

Johnson, J., concurs. Andrews, J., concurs in the judgment only.


text:
    A94A0879.
    FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    (445 SE2d 338)
   Beasley, Presiding Judge.

In April 1991, an automobile collision injured three persons insured by Government Employees Insurance Company (“GEICO”), which paid personal injury protection (“PIP”) benefits. In April 1993, GEICO sued Fire & Casualty Insurance Company of Connecticut (“FCICC”), insurer of the other involved vehicle, to recover the benefits paid. GEICO relied on former OCGA § 33-34-3 (d) (1) (A), which allowed subrogation in instances when one vehicle involved weighed more than 6,500 pounds unloaded. The weight threshold is not contested.

FCICC moved for summary judgment, arguing that the statute had been repealed effective October 1, 1991, before institution of the suit, and could not serve as a basis for a subrogation claim. Summary judgment was denied, a certificate of immediate review was given, and FCICC’s application for an interlocutory appeal was granted.

The sole question is whether the repeal of the statute providing a right of subrogation to recover no-fault benefits paid in certain circumstances extinguishes those subrogation rights when the collision occurred before the repeal but the subrogation suit was brought after the repeal. We conclude that it does not.

We have previously addressed the effect of the 1991 repeal and replacement of the Motor Vehicle Accident Reparations Act on remedies available in suits instituted after October 1, 1991, involving collisions that occurred before the repeal, but we have not addressed the issue of the repeal’s effect on subrogation rights. We have determined that the defendant’s right to deduct the amount of PIP benefits previously paid to a plaintiff from a court judgment pursuant to former OCGA § 33-34-9 (b) is a substantive statutory right that became fixed at the time of collision and was unaffected by the repeal. Glover v. Colbert, 210 Ga. App. 666 (437 SE2d 363) (1993); Walker v. Willis, 210 Ga. App. 139 (435 SE2d 621) (1993). On the other hand, we have held that the repeal prevents recovery of attorney fees and punitive damages for bad faith failure to pay no-fault benefits as provided in former OCGA § 33-34-6, absent an independent contractual provision so specifying. Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992); Steptoe v. Auto-Owners Ins. Co., 210 Ga. App. 756, 757 (1) (437 SE2d 626) (1993).

FCICC urges us to follow the rule of statutory construction set forth in Gold v. Pioneer Fund, 107 Ga. App. 855, 860 (132 SE2d 144) (1963), that “the repeal of a statute without reservation takes away all remedies given by it and even defeats all actions and proceedings pending under it at the time of its repeal, and this is especially so where the statute repealed is one creating a cause of action. [Cits.]” FCICC argues that subrogation was a right of recovery only by operation of former OCGA § 33-34-3 (d), so that its repeal defeats any action for recovery under it.

This reasoning has not been followed in resolving cases concerning the 1991 repeal of the Motor Vehicle Accident Reparations Act and is not considered controlling. The 1991 repeal was not “without reservation”; to the contrary, the Act specifically stated that it was prospective as to policies and did not affect coverages in effect on October 1, 1991. Ga. L. 1991, p. 1628, § 3.1. Further, it is well established that the primary canon of statutory interpretation is to look for the intent of the legislature. OCGA § 1-3-1 (a); Republic Claims Svc. Co. v. Hoyal, 210 Ga. App. 88, 90 (1) (435 SE2d 612) (1993). The legislature’s specific exclusion of existing coverages shows it intended that relations between the insured and insurer not be affected by the Act without further action by the parties. Subrogation is an important economic facet of that relationship and is linked to the defendant’s right to deduct PIP benefits received from any judgment, a right which survived the repeal. Glover and Walker, supra. Additionally, the matter at issue in Gold concerned the statutory designation of an agent for service; its reasoning can be confined to procedure.

Decided June 10, 1994.

Webb, Carlock, Copeland, Semler & Stair, Fred M. Valz III, Christopher G. Moorman, Scott D. Huray, for appellant.

Edward M. Harris & Associates, Edward M. Harris, Jr., Vicki M. Knott, for appellee.

All these factors suggest that the rule pronounced in Gold is inappropriate here. Terry and its progeny, in fact, rest upon the principle that repeal of a law authorizing a penalty defeats the right to recover the penalty. Terry, supra at 225; State Farm Mut. Auto. Ins. Co. v. Young, 207 Ga. App. 355, 356-357 (427 SE2d 835) (1993); Steptoe, supra. Terry and its reasoning applies to cases concerning “bad faith” penalties found in former OCGA § 33-34-6.

In those cases in which we have addressed the effect of the repeal on the defendant’s right to deduct PIP payments from a judgment, we have not followed the Gold rule and have determined that legislative intent is best served by the right surviving the repeal. See Glover and Walker, supra. Defendant’s right to deduct PIP payments and subrogation together ensure that the appropriate party pays for the damage but that no party receives a windfall. The defendant tortfeasor’s statutory right to the defense provided under former OCGA § 33-34-9 (b) for reduction of award to reflect no-fault PIP benefit payments “became fixed at the time of the collision.” Glover, supra at 669. Likewise, the insurer’s right to subrogation for PIP benefits paid becomes fixed at the time of collision.

FCICC argues that the right to subrogation conferred by the former statute did not vest until FCICC received notice of GEICO’s assertion of the right, which was after the repeal. However, there is no basis in former OCGA § 33-34-3 for such a trigger.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1395.
    BLACK v. CATOOSA COUNTY SCHOOL DISTRICT et al.
    (445 SE2d 340)
   Beasley, Presiding Judge.

Larry Black appeals from a final order enjoining him from serving as a member of the Catoosa County School Board so long as he serves as a Catoosa County Deputy Sheriff. The action is one for declaratory judgment and injunctive relief, filed by the Catoosa County School District and the Catoosa County Board of Education and its members individually. Black’s term of office was to begin January 1, 1994, and to expire on December 31, 1996. The trial court accepted plaintiffs’ position that Black’s intended service on the school board would violate OCGA § 45-2-2 and Section 3 of the Act of March 30, 1993, Ga. L. 1993, p. 4258. The first prohibits a person from holding or being commissioned to hold more than one county office at one time except by special enactment of the General Assembly. The second provides, in pertinent part, that “[n]o person shall be a member of the board [of education] if that person also holds another county office, . . . pursuant to [OCGA § 45-2-2].”

Decided June 10, 1994.

Duncan & Mickles, Brian M. House, for appellant.

Examination of the record on appeal, which includes a stipulation of the case pursuant to OCGA § 5-6-41 (i), and an analysis of the applicable law show the trial court’s order to be well reasoned, thorough, and complete. We expressly adopt its analysis as follows.

A county school board member is a county officer as a matter of law. Stanford v. Lynch, 147 Ga. 518, 519 (94 SE 1001) (1918). Likewise, a sheriff is a county officer. 1983 Ga. Const., Art. IX, Sec. I, Par. III; Carter v. Veal, 42 Ga. App. 88 (2) (155 SE 64) (1930). Both a county school board member and a sheriff are commissioned officers. OCGA §§ 45-3-30; 45-3-31. Pursuant to OCGA § 45-2-2, it is clear that one cannot be a commissioned officer (school board member) and be a deputy for any other commissioned officer (sheriff) at the same time.

Even though the voters of Catoosa County have elected appellant Black by a majority vote and he has high respect as a law enforcement officer, it is the duty of the courts to abide by the laws which have been promulgated by the legislature.

We affirm the court’s declaration that Black cannot hold both the position of Catoosa County School Board Member from Education District Three and the position of Catoosa County Deputy Sheriff. It follows that the injunction prohibiting him from doing so is not improper.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Renzo S. Wiggins, for appellees.

       Inasmuch as this is an appeal from the issuance of a permanent injunction, it was originally filed in the Supreme Court. 1983 Ga. Const., Art. VI, Sec. VI, Par. Ill (2). The Supreme Court transferred the appeal to this court.


author: Judge Harold R. Banke.

text:
    A92A1702.
    MACON TELEGRAPH PUBLISHING COMPANY v. TATUM.
    (446 SE2d 797)
    Decided June 13, 1994.

      Anderson, Walker & Reichert, Walter H. Bush, Jr., Susan S. Cole, for appellant.

      Adams & Hemingway, William P. Adams, Butler, Wooten, Overby & Cheeley, Albert M. Pearson III, for appellee.

      Spencer Lawton, Jr., District Attorney, J. Tom Morgan, District Attorney, Glass, McCullough, Sherrill & Harrold, Robert E. Wilson, Hull, Towill, Norman, & Barrett, David E. Hudson, Edward J. Tarver, amici curiae.
   Judge Harold R. Banke.

In Macon Telegraph Pub. Co. v. Tatum, 208 Ga. App. 111 (430 SE2d 18) (1993), this court affirmed the trial court’s judgment entered on a jury verdict for the plaintiff in an action for invasion of privacy based upon the defendant newspaper’s publication of the plaintiff’s name in a story concerning a sexual assault. However, in Macon Telegraph Pub. Co. v. Tatum, 263 Ga. 678 (436 SE2d 655) (1993), the Supreme Court reversed, finding that the plaintiff could not recover damages for such. Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A94A0693.
    SMITH v. THE STATE.
    (445 SE2d 341)
   Beasley, Presiding Judge.

On August 25, 1993, Smith pled guilty to the charge of affray and was sentenced to 12 months. On September 8, 1993, he filed a motion to withdraw his plea and vacate the conviction. A hearing was set for September 16, 1993; Smith’s counsel did not appear, had not filed a conflict letter pursuant to USCR 17.1, and the motion was dismissed.

On September 17, 1993, Smith filed a notice of appeal from his conviction and sentence, as well as from the dismissal of his motion to withdraw plea. On October 25, 1993 he filed a motion in the trial court to supplement the record for appeal pursuant to OCGA § 5-6-41 (f). The materials he wished to include in the record consisted of affidavits attesting to a conflict his attorney had on September 16, 1993, and what occurred in court on that date. A hearing on this motion was held on November 11, 1993 and the motion was denied. The record submitted to this court contains a transcript of only the November 11, 1993 proceeding.

1. Smith contends that the court should not have dismissed his motion to withdraw the plea. Although his counsel asserts that he had a conflict in another court, it is undisputed that no conflict letter was filed pursuant to USCR 17.1. This is not a case in which there was sufficient, although incomplete, compliance with USCR 17.1. Rather, counsel made no attempt to comply with the rule. Compare Robinson v. Robinson, 256 Ga. 188, 189 (1) (345 SE2d 597) (1986). It was not error to dismiss the motion. Grandison v. State, 200 Ga. App. 309, 310 (2) (408 SE2d 135) (1991); Baker v. State, 190 Ga. App. 219 (378 SE2d 525) (1989).

2. Smith asserts that the trial court erred by denying his motion to supplement the record for appeal. In resolving conflicts on a motion to supplement the record, the trial court’s decision is “dispositive, and is not subject to our review. OCGA § 5-6-41 (f), (g); Patterson v. State, 233 Ga. 724, 730-731 (7) (213 SE2d 612) (1975).” Smith v. State, 260 Ga. 274, 276 (3) (393 SE2d 229) (1990). Additionally, any information concerning a conflict in Smith’s counsel’s schedule is irrelevant, given our decision on the requirements of USCR 17.1.

3. Smith has moved this court to supplement the record. “ ‘Any issue as to the correctness of the record is to be resolved by the trial court (cit.), for that court retains jurisdiction even after the case is docketed in this Court to add additional record, (cit.), and “is still the final arbiter of any differences in the preparation of the record.” (Cit.)’ [Cit.]” Harp v. State, 204 Ga. App. 527, 528 (1) (420 SE2d 6) (1992). The motion is denied.

4. Although the motion to withdraw his plea was properly dismissed below, Smith argues on appeal that his guilty plea was not knowingly and voluntarily made, and that there was no factual basis for it. “[A] timely filed appeal from a judgment entered on a guilty plea, such as the appeal brought by appellant, is a prescribed means to challenge that guilty plea. [Cit.]” Agerton v. State, 191 Ga. App. 633 (382 SE2d 417) (1989). The dismissal of his motion below does not affect the procedural posture of this enumeration.

“Notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.” USCR 33.9. No such inquiry appears. “Since the record does not show that the trial court determined that a factual basis existed for the guilty plea, we conclude that the State did not meet its burden of showing affirmatively by the record that appellant’s guilty plea was knowingly and voluntarily entered. [Cit.]” Collum v. State, 211 Ga. App. 158, 160 (438 SE2d 401) (1993). Unlike Collum, this is not a case in which the transcript of the motion hearing could aid in determining whether an inquiry was made. “Accordingly, the trial court should have granted appellant’s motion to withdraw his guilty plea.” Evans v. State, 212 Ga. App. 805, 806 (443 SE2d 296) (1994).

Decided June 13, 1994.

Lloyd J. Matthews, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

5. Smith’s remaining enumerations of error are moot.

Judgment reversed.

Johnson, J., concurs. Andrews, J., concurs in the judgment only.


text:
    A92A0794.
    DEPARTMENT OF HUMAN RESOURCES v. POSS et al.
    (446 SE2d 796)
   Beasley, Presiding Judge.

In Poss v. Dept. of Human Resources, 206 Ga. App. 890, 895 (426 SE2d 635) (1992), we held in Division 1 that the court did not err in granting the department’s motion for summary judgment on plaintiffs’ derivative negligence claim, but we held in Divisions 2 through 6 that the court erred in granting the department’s motion for summary judgment on plaintiffs’ direct negligence claim. Accordingly, the judgment in the plaintiffs’ appeal in Case No. A92A0793 was affirmed in part and reversed in part. In Division 7, we held that the court did not err in denying the department’s counterclaim for attorney fees and litigation expenses for frivolous litigation. Accordingly, the judgment in the department’s cross-appeal in Case No. A92A0794 was affirmed.

On certiorari in Case No. S93G0571, the Supreme Court reversed our holding with respect to plaintiffs’ direct negligence claim. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993). Accordingly, we vacated our original judgment with respect to Divisions 2 through 6 of our opinion and made the judgment of the Supreme Court the judgment of this court. Poss v. Ga. Dept. of Human Resources, 211 Ga. App. 754 (441 SE2d 101) (1994).

Subsequent to vacating our judgment with respect to these divisions, it has come to our attention that the Supreme Court also reversed our judgment in the department’s cross-appeal.

Decided May 19, 1994

Reconsideration dismissed June 14, 1994.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Robert H. Benfield, Jr., for appellees.

Therefore, our judgment is also vacated with respect to Division 7, and the judgment of the Supreme Court is hereby made the judgment of this court. The trial court’s refusal to entertain the department’s counterclaim for attorney fees and litigation expenses for frivolous litigation in Case No. A92A0794 is reversed.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A94A0073.
    OXFORD v. HASTY.
    (445 SE2d 276)
   Andrews, Judge.

After receiving this matter from the Supreme Court, we have reviewed the record and find that the facts of the case are the following. On November 16, 1990, Robert Hasty, appellee here, filed a petition to set aside a deed against C. Allen Oxford (“Allen Oxford”), Ruby Ann Oxford, and B. D. & B. Commercial Builders. The petition alleged that on May 9, 1990, defendant Allen Oxford executed a promissory note in favor of Hasty in the amount of $37,825.31. The note was due and payable on or before July 1, 1990 and was not paid in accordance with its terms. Subsequent to the default, Hasty filed suit and obtained a judgment against Allen Oxford in the amount of $44,202.18.

The petition further alleged that on May 9, 1990, B. D. & B. Commercial Builders owned certain real property located at 245 Camden Road. B. D. & B. continued to own the property until July 26, 1990. Allen Oxford owned 100 percent of the stock of B. D. & B. and had full control over its assets. On July 26, 1990, Allen Oxford caused B. D. & B. to transfer the property located at 245 Camden Road to himself and his wife. At the time that B. D. & B. transferred the property, the loan on the property was $462,358.67. After the conveyance, B. D. & B. was insolvent. The petition further claimed that also on July 26, 1990, Allen Oxford transferred all of his interest in the Camden Road property to his wife, Ruby Oxford, for no consideration. After the transfer, Allen Oxford was insolvent.

According to the complaint, at all times Ruby and Allen Oxford knew that Allen Oxford was insolvent and that Hasty was a creditor of his. The petition alleged that they acted in a fraudulent attempt to defeat Hasty’s legitimate claims as creditor.

The case came for trial before a jury. Ruby Oxford testified that she knew of the note to Hasty and knew that her husband was insolvent. She testified regarding the transfer of the Camden property to her. Introduced at trial was a copy of the filed transfer tax document, which showed that Allen Oxford had transferred his interest in the property to Ruby Ann Oxford as a gift for “love and affection.” The deed which was introduced showed that the consideration for the transaction was $10.

At the conclusion of the evidence, the court granted Hasty’s motion for a directed verdict. The court declared that the deed from Allen to Ruby Oxford was null and void and that title to said property was vested in both Allen and Ruby Oxford. From this judgment, Ruby Oxford appeals.

In her two enumerations of error, Oxford claims that the trial court erred by directing the verdict in favor of Hasty and in denying defendants’ motion for directed verdict. She claims that she purchased the Camden property from B. D. & B. and paid a cash consideration and that it became solely her property.

The trial court’s order was based on OCGA § 18-2-22 (3), which provides that “[e]very voluntary deed or conveyance, not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance” shall be fraudulent in law against creditors and as to them shall be null and void. Under this statute “the only facts necessary to be shown in order to render the deed from the husband to his wife fraudulent in law, are the indebtedness, the insolvency of the debtor, and that the deed was voluntary. When these facts are proved, the law conclusively presumes a fraudulent intent and declares the instrument void so far as creditors who held demands against the debtor at the time of the conveyance are concerned.” (Citations and punctuation omitted.) Chambers v. C & S Nat. Bank, 242 Ga. 498, 501 (1) (249 SE2d 214) (1978).

Here, it is undisputed that Allen Oxford was indebted to Hasty and that this indebtedness predated the conveyance of the deed from Allen Oxford to his wife and existed at the time of the conveyance. Ruby Oxford testified that she was aware of this indebtedness at the time of the attempted deed conveyance. Similarly, there was no dispute that Oxford was insolvent and that Ruby Oxford was aware of this insolvency.

The dispute in this case focuses on the requirement that the conveyance be “voluntary.” Although the transfer tax filing, introduced as an exhibit at trial, indicated that the transfer from Allen to Ruby Oxford was for “love and affection,” appellant Oxford argues that the conveyance was not voluntary and that Allen Oxford merely held the undivided one-half interest in trust for her. She contends that there was no evidence of a gift and that both names were on the title initially because it was required by the lender. She claims that she paid B. D. & B. $132,102.26 for the property and that because Allen Oxford paid nothing for the title he was required to convey his portion of the title to her.

Decided May 12, 1994

Reconsideration denied June 14, 1994

Hatcher, Irvin & Pressley, Henry M. Hatcher, Jr., for appellant.

“A valuable consideration is founded on money, or something convertible into money, or having a value in money.” (Citation omitted.) Stokes v. McRae, 247 Ga. 658, 659 (1) (278 SE2d 393) (1981). Appellant Oxford carefully traces the funds and the rationale behind the transfer from Allen Oxford to herself, though her explanation focuses on the transfer from B. D. & B. to both of the Oxfords.

With regard to the transfer from Allen to Ruby Oxford, the evidence is that there was a $10 consideration recited on the deed. Thus, the deed was not upon its face a voluntary conveyance, but was prima facie a deed based on valuable consideration. See Pharr v. Pharr, 206 Ga. 354 (57 SE2d 177) (1950).

“Whether a conveyance is in fact voluntary depends upon the intention of the parties, which is to be ascertained from the facts and circumstances at the time of its execution.” Pharr, supra at 357. Here, the trial court’s direction of the verdict was proper. There was no evidence that Allen Oxford was indebted to Ruby Ann Oxford and there is no explanation of more than nominal consideration she paid him. Compare Avary v. Avary, 202 Ga. 22 (6) (41 SE2d 314) (1947). The funds which Oxford traces were paid to the bank in consideration of the transfer from the corporation to the couple; they were not paid to Allen Oxford for his transfer of the property to her. See generally Garner v. State Banking Co., 150 Ga. 6 (102 SE 442) (1920). Moreover, the transfer tax document showed that the conveyance was a gift and that the consideration was “love and affection.” These circumstances, in addition to the close familial relationship, see Merrell v. Beckwith, 263 Ga. 779, 781 (1) (439 SE2d 488) (1994), establish that the conveyance was voluntary under OCGA § 18-2-22 (3). See Bussell v. Glenn, 197 Ga. 816 (1) (2) (30 SE2d 617) (1944); compare Brown v. C & S Nat. Bank, 253 Ga. 119 (2) (317 SE2d 180) (1984). Accordingly, the trial court’s actions were proper.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

Charles N. Center, for appellee.


author: Smith, Judge.

text:
    A94A0342.
    HOWARD v. THE STATE.
    (445 SE2d 532)
   Smith, Judge.

Kay Milligan Howard was charged with murder. She was convicted by a jury of felony grade involuntary manslaughter, OCGA § 16-5-3 (a), and her motion for new trial was denied.

Howard was charged in the shooting death of her husband, Kell Leverne Howard. Her defense was that the gun she was holding discharged accidentally. At the charge conference, defense counsel requested a charge on reckless conduct, OCGA § 16-5-60 (b). The court agreed to charge on reckless conduct as requested by the defense, but stated it would also have to charge OCGA § 16-5-3 (a), involuntary manslaughter by causing the death of another without intention to do so during the commission of an unlawful act. In its charge to the jury, the court did exactly that. The jury twice requested and received a recharge on involuntary manslaughter. Eventually, the jury returned a verdict finding her guilty of this lesser included offense. Howard was sentenced to eight years incarceration, with four years probated.

1. Three of Howard’s four enumerations of error involve the court’s charge on involuntary manslaughter and the resulting verdict. The thrust of all three enumerations is that the court’s charge on the lesser included offense of involuntary manslaughter was confusing to the jury, that the jurors believed they were convicting Howard of a misdemeanor rather than a felony, and that they would not have convicted her of involuntary manslaughter had they known it was a felony. Howard argues that because of this confusion, the judgment must be reversed. We do not agree.

(a) This case is different from Freeman v. State, 210 Ga. App. 183 (435 SE2d 461) (1993) (trial court must accept jury’s verdict of guilty of involuntary manslaughter even when jury not charged regarding that crime). In this case, the jury was charged on involuntary manslaughter in the commission of an unlawful act and returned a verdict finding Howard guilty of that crime.

(b) OCGA § 16-5-60 (b) defines reckless conduct, a misdemeanor, as “causing] bodily harm to or endangering] the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person [when] the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” The court charged the jury on reckless conduct using the statutory language.

OCGA § 16-5-3 (a) provides that “[a] person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.”

The court instructed the jury that “[a] person commits involuntary manslaughter in the commission of an unlawful act when that person causes the death of another human being without any intention to do so by the commission of an unlawful act, constituting a misdemeanor. That means, not a felony. In that connection, I charge you that reckless conduct is a misdemeanor.” Both of the requested recharges were in substantially the same language. All three charges were correct statements of the law.

At the sentencing hearing, a juror testified that based on these charges and recharges the members of the jury believed that in voting to find Howard guilty of involuntary manslaughter they were finding her guilty of a misdemeanor, rather than a felony. When questioned by the court, however, the juror testified she heard the court’s definition of reckless conduct and had not violated her oath as a juror. She testified she believed Howard had engaged in reckless conduct in handling the gun and, in so doing, caused the death of the victim. At the hearing on the motion for new trial, the jury foreman testified similarly, and affidavits to similar effect from other jurors were admitted.

The trial court correctly found that this evidence did not impeach the jury’s verdict and did not require that he amend the sentence, vacate the conviction, or order a new trial. Although the jurors indicated they would not have voted to find Howard guilty of involuntary manslaughter in the commission of an unlawful act had they known it was punishable as a felony, “the legal status of the crime (felony or misdemeanor) and the resulting punishment if a guilty verdict is returned, is of absolutely no concern to the jury. [Cit.] In determining whether the defendant was guilty of the crime of involuntary manslaughter [in the commission of an unlawful act] . . . , the jury was required to make its decision on the basis of the evidence and the evidence alone.” Cooper v. State, 167 Ga. App. 440, 443 (306 SE2d 709) (1983) (Carley, J., concurring specially). As pointed out by the trial judge, the jurors’ testimony showed clearly that they correctly applied the judge’s instructions to the facts as found by them, and arrived at a proper verdict. Therefore, even if the charge confused the jury and was thus error despite being a correct statement of the law, any such error was harmless.

(c) Contrary to Howard’s contention, we find no error in the court’s failure to charge on involuntary manslaughter in the commission of a lawful act in an unlawful manner. The court charged the jury regarding accident. If the shooting was an accident, no crime was committed. Because “everyone knows the deadly force of a gun, intent to kill can be inferred from the shooting of the gun.” Willis v. State, 258 Ga. 477 (1) (371 SE2d 376) (1988). Therefore, if the shooting was not an accident but the result of reckless conduct, the crime was involuntary manslaughter in the commission of an unlawful act, a felony.

Decided May 23, 1994

Reconsiderations denied June 14, 1994

Jane K. Mitchell, James E. Hardy II, for appellant.

Garry T. Moss, District Attorney, for appellee.

2. Howard also contends the trial court erred in ordering restitution, arguing that the court did not comply with the requirements of OCGA §§ 17-14-8 through 17-14-10 that a hearing be held regarding restitution, that certain factors be considered in ordering restitution, and that certain written findings be made. See Cannon v. State, 246 Ga. 754, 756 (3) (272 SE2d 709) (1980).

At the sentencing hearing, the court heard testimony from the victim’s children regarding funeral and medical expenses. It was established that the funeral expenses were $5,133.52. The court took into consideration Howard’s ability to pay, the goal of rehabilitation, and other factors enumerated in OCGA § 17-14-10. It ordered Howard to pay restitution for funeral expenses and medical expenses not to exceed the sum of $5,000. This sum complies with the provision in OCGA § 17-14-9 that “[t]he amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” However, because we are unable to discern from the designated record any written findings as required by OCGA § 17-14-8 (a), that portion of the sentence imposing restitution is vacated and remanded to the trial court for the preparation of written findings in compliance with OCGA § 17-14-8 (a). Garrett v. State, 175 Ga. App. 400, 403 (1) (333 SE2d 432) (1985).

Judgment affirmed in part and vacated and remanded in part with direction.

Pope, C. J., and McMurray, P. J., concur.