Brown v. City of Marietta

449 S.E.2d 540, 214 Ga. App. 840, 94 Fulton County D. Rep. 3439, 1994 Ga. App. LEXIS 1075
CourtCourt of Appeals of Georgia
DecidedOctober 17, 1994
DocketA94A1154
StatusPublished
Cited by11 cases

This text of 449 S.E.2d 540 (Brown v. City of Marietta) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. City of Marietta, 449 S.E.2d 540, 214 Ga. App. 840, 94 Fulton County D. Rep. 3439, 1994 Ga. App. LEXIS 1075 (Ga. Ct. App. 1994).

Opinion

Birdsong, Presiding Judge.

Frank L. Brown has filed a direct appeal under OCGA § 5-6-34 (a) of his conviction for driving under the influence of alcohol. He contends the trial court erred by denying his motion to suppress and motion in limine to suppress the results of a breath test, and the superior court erred by affirming the trial court. Brown alleges the arresting officer lacked probable cause for his arrest and the videotape of his arrest, made by the police car’s video camera, shows he was not under the influence at the time of his arrest. Held:

1. Brown filed a direct appeal in this case because the decision by a panel of this court in Wilson v. City of Riverdale, 203 Ga. App. 250 (416 SE2d 825) held that “appeals from superior court reviews made pursuant to OCGA § 40-13-28 are directly appealable under OCGA § 5-6-34 (a).” That decision was a reaction to Walton v. State, 261 Ga. 392 (405 SE2d 29), in which our Supreme Court held that traffic cases appealed to superior courts under OCGA § 40-13-28 are not de novo appeals. In reaching this result, the Supreme Court rejected the reasoning in Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521), and expressly disapproved its conclusion that in such cases the reviews were special hybrid de novo proceedings. Instead, the Supreme Court held that defendants in traffic appeals are “entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Walton, supra at 394.

Based upon the Walton opinion, a panel of this court held that “Anderson, [supra,] will no longer be followed and that appeals from superior court reviews made pursuant to OCGA § 40-13-28 are directly appealable under OCGA § 5-6-34 (a).” Wilson v. City of Riverdale, supra at 250.

Upon further consideration, however, the question that should have been addressed was not merely whether reviews of traffic offenses under OCGA § 40-13-28 were de novo reviews, but whether the General Assembly intended that appeals from superior courts in traffic cases should be subject to the discretionary appeals procedures of OCGA § 5-6-35 (a) (1).

“We begin our analysis with the ‘golden rule’ of statutory construction, which requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else. When! literal reading of the statute produces such an absurdity, the appel-l late court must then seek to make sense out of the statute, while be-| [841]*841ing faithful to the legislative intent. To divine the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected.” (Citations and punctuation omitted.) Telecom*USA v. Collins, 260 Ga. 362, 363-364 (393 SE2d 235). “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

Before the 1986 amendment to OCGA § 40-13-28 there was no question but that these appeals were subject to the discretionary appeals procedures. Under the terms of former OCGA § 40-13-28 such appeals were de novo investigations, and thus unquestionably were included within the discretionary appeals procedures by OCGA § 5-6-35 (a) (1). Therefore, the question is whether the 1986 amendment to OCGA § 40-13-28 that changed the scope of review in the superior court from a de novo investigation to a review of the record was also intended to change the method of appeal from the superior court in such cases from discretionary appeals under OCGA § 5-6-35 (a) (1) to direct appeals under OCGA § 5-6-34 (a). We find no evidence that the General Assembly intended that result.

The preamble to Ga. L. 1986, pp. 982, 983, § 15, which amended OCGA § 40-13-28, provides that the purpose of the amendment was “to provide that all appeals of convictions under Article 2 of Title 40 shall be on the record of the hearing below ánd not by . . . jury trial.” Nothing in the amendment or the preamble suggests that the amendment was intended to change the appellate procedure in such cases. Moreover, by eliminating the de novo procedures, the General Assembly’s purpose was to eliminate duplicative and burdensome retrial of cases in the superior court and in some cases to eliminate second jury trials. See Ga. State Univ. L. Rev., Vol. 2, pp. 167, 168 (1986). Therefore, we find no reason to conclude that the General Assembly intended this amendment to alter the existing appellate procedures for these cases. To do so would demand the conclusion that the General Assembly intended to eliminate duplicative retrials in the superior court and substitute instead duplicative appeals in the appellate courts.

Consideration of the purpose of the discretionary appeals procedures does not reveal a different legislative intent. The predecessor to OCGA § 5-6-35 (a) (1), Code Ann. § 6-701.1, was enacted by the General Assembly as Ga. L. 1979, p. 619, because of the “massive caseload in the appellate courts” (C & S Nat. Bank v. Rayle, 246 Ga. 727, 729 (273 SE2d 139)), and the section “was enacted to ameliorate the appellate courts’ massive case loads.” Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588 (408 SE2d 103).

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Bluebook (online)
449 S.E.2d 540, 214 Ga. App. 840, 94 Fulton County D. Rep. 3439, 1994 Ga. App. LEXIS 1075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-city-of-marietta-gactapp-1994.