Brock v. State

Court of Appeals of Georgia

Brock v. State

317 S.E.2d 547, 170 Ga. App. 559, 1984 Ga. App. LEXIS 1945

Court of Appeals of Georgia·Decided February 28, 1984·No. 67469·Published·Cited by 1 cases

Opinion

Shulman, Presiding Judge.

Appellant was convicted of obstructing a law enforcement officer (OCGA § 16-10-24) and driving an unsafe vehicle (OCGA § 40-8-7). Appellant was originally sentenced by the trial court to two consecutive one-year prison terms, but on appeal this court vacated the sentence and remanded the case to the trial court for resentencing. Brock v. State, 166 Ga. App. 649 (305 SE2d 180). While the case was on remand, appellant filed a motion to recuse the trial judge. This appeal follows the denial of that motion.

“[T]he motion to disqualify [must] be made as soon as the facts [560] demonstrating the basis for disqualification become known.” Hunnicutt v. Hunnicutt, 248 Ga. 516, 518 (283 SE2d 891). It appears from the record that the legal altercation upon which appellant bases his motion to recuse occurred several years before appellant committed the offenses that precipitated the instant trial and conviction. Therefore, since appellant was aware of those facts at the time the present case initially came to trial, and since he neglected to file his motion to recuse until the case was on remand nine months later, he has waived his opportunity to have the trial judge disqualified. Hunnicutt, supra. See also Romine v. State, 251 Ga. 208 (2) (305 SE2d 93). The trial judge properly denied appellant’s motion.

Decided February 28, 1984 — Rehearing denied March 29, 1984 — Kennedy R. Packer, for appellant. Ken Stula, Solicitor, for appellee.

Judgment affirmed.

McMurray, C. J., and Birdsong, J., concur.

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Shulman, Presiding Judge.

Appellant was convicted of obstructing a law enforcement officer (OCGA § 16-10-24) and driving an unsafe vehicle (OCGA § 40-8-7). Appellant was originally sentenced by the trial court to two consecutive one-year prison terms, but on appeal this court vacated the sentence and remanded the case to the trial court for resentencing. Brock v. State, 166 Ga. App. 649 (305 SE2d 180). While the case was on remand, appellant filed a motion to recuse the trial judge. This appeal follows the denial of that motion.

“[T]he motion to disqualify [must] be made as soon as the facts [560] demonstrating the basis for disqualification become known.” Hunnicutt v. Hunnicutt, 248 Ga. 516, 518 (283 SE2d 891). It appears from the record that the legal altercation upon which appellant bases his motion to recuse occurred several years before appellant committed the offenses that precipitated the instant trial and conviction. Therefore, since appellant was aware of those facts at the time the present case initially came to trial, and since he neglected to file his motion to recuse until the case was on remand nine months later, he has waived his opportunity to have the trial judge disqualified. Hunnicutt, supra. See also Romine v. State, 251 Ga. 208 (2) (305 SE2d 93). The trial judge properly denied appellant’s motion.

Decided February 28, 1984 — Rehearing denied March 29, 1984 — Kennedy R. Packer, for appellant. Ken Stula, Solicitor, for appellee.

Judgment affirmed.

McMurray, C. J., and Birdsong, J., concur.

Brock v. State, 317 S.E.2d 547, 170 Ga. App. 559, 1984 Ga. App. LEXIS 1945 (Ga. Ct. App. 1984).

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Opinion

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