Jenkins v. State

670 S.E.2d 425, 284 Ga. 642, 2008 Fulton County D. Rep. 3686, 2008 Ga. LEXIS 1026
Supreme Court of Georgia·Decided November 17, 2008·No. S08A0761·Published·Cited by 52 cases

Opinions

BENHAM, Justice.

On March 26, 2002, James Orin Jenkins pled guilty and was convicted of criminal attempt to commit rape and possession of [643] marijuana. Upon his release, Jenkins registered as a sex offender with the Henry County Sheriffs Department. On or about May 31, 2006, Jenkins changed residences without registering his new address in accordance with OCGA § 42-1-12 as it existed at that time. The trial court sentenced Jenkins to three years in prison for violating OCGA § 42-1-12. Jenkins appeals alleging that he did not violate the statute and, alternatively, that the statute was unconstitutionally vague.

1. “It is incumbent upon this Court to inquire into its own jurisdiction.” Nix v. Watts, 284 Ga. 100 (664 SE2d 194) (2008); Ferguson v. Freeman, 282 Ga. 180 (1) (646 SE2d 65) (2007). This case is before us pursuant to our exclusive appellate jurisdiction of “all cases in which the constitutionality of a law ... has been drawn in question.” Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1). Because the trial court’s ruling on the constitutional question in this case was oral, we write to determine whether the issue was distinctly ruled upon insofar as the ruling was not reduced to a written order. While final orders and judgments must be reduced to writing, signed by a judge, and filed by the clerk to be appealable (OCGA § 5-6-34 (a); Hill v. State, 281 Ga. 795 (3) (642 SE2d 64) (2007)), there is a distinction to be made between an appealable final judgment and a distinct ruling which invokes this Court’s constitutional question jurisdiction.

OCGA § 5-6-34 (d) provides in pertinent part:

Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.

Thus once the final appealable order or judgment has been issued per OCGA § 5-6-34 (a), (b), or (c), any other ruling that will affect the case below, including a ruling on a constitutional question, may potentially be considered by an appellate court if properly preserved for review. A constitutional question raised and distinctly ruled upon in the trial court need not be reduced to a written order or other similar writing to invoke this Court’s jurisdiction. In re D. H., 283 Ga. 556 (1) (663 SE2d 139) (2008) (this Court had jurisdiction where the constitutional question was raised and distinctly ruled upon [644] orally at the hearing).1

Here, in accordance with OCGA § 5-6-34 (a), there is a final appealable judgment of conviction for Jenkins’ violation of OCGA § 42-1-12. The record reveals that prior to his trial and conviction, Jenkins raised the constitutionality of the registry statute by demurrer and motion to quash the indictment. In the transcript of the hearing on the demurrer, Jenkins argued that “OCGA § 42-1-12 is unconstitutionally vague as applied to the facts of the instant case in that the statute is so confusingly and poorly worded that it would not put persons of ordinary intelligence on notice of what it requires.” Upon hearing testimony and argument, the trial court distinctly ruled that the statute was not unconstitutionally vague:

[AJlthough the statute is very complex I don’t think in the legal sense it is impossible for a person of ordinary intelligence to understand it because I’ve read it and I think I understand it and I don’t claim to be more than a person of ordinary intelligence. At least the way statutes have been interpreted by the appellate] courts.... I think it passes the test. So I’m going to deny the demurrer.

On appeal, Jenkins contended the above ruling by the trial court was erroneous. By raising the constitutional issue and obtaining a distinct ruling from the trial court, and then raising the matter on appeal in an enumerated error, Jenkins has properly invoked this Court’s constitutional question jurisdiction. In re D. H., supra.

2. When Jenkins changed his address without registering, OCGA § 42-1-12 required a person convicted of a “sexually violent offense” to register as a sex offender and to notify the sheriff of any subsequent changes of address. OCGA § 42-1-12 (b) (4) (B) (2005). The statute defined “sexually violent offense” as “a conviction for violation of Code Section 16-6-1, relating to rape. ...” OCGA § 42-1-12 (a) (7) (2005).2 Jenkins avers he was not required to register as a sex offender and therefore did not commit a crime in failing to register because he was convicted of attempted rape under [645] OCGA § 16-4-1 rather than rape under OCGA § 16-6-1. We disagree with Jenkins’ averment.

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Jenkins v. State, 670 S.E.2d 425, 284 Ga. 642, 2008 Fulton County D. Rep. 3686, 2008 Ga. LEXIS 1026 (Ga. 2008).

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