O'QUINN v. State

173 S.E.2d 409, 121 Ga. App. 231, 1970 Ga. App. LEXIS 1182

• Court: Court of Appeals of Georgia
• Decided: February 19, 1970
• Docket: 44804
• Status: Published

Opinions

Jordan, Presiding Judge.

This is. an appeal from a conviction and sentence for assault and battery. Held:

1. The motion of the State to dismiss the appeal for the alleged failure to file a transcript within the time allowed by law, without obtaining any orders in the trial court to extend the time, is denied.

In reaching this decision we note that the trial judge, acting pursuant to his authority under § 13(b) of the Appellate Practice Act, as amended in 1968 (Ga. L. 1968, pp. 1072, 1074; Code Ann. § 6-809 (b)) denied a substantially identical motion, and we also note the provisions of § 13 (d), as added in the same Act, also purporting to control the dismissal of an appeal, which, under the decision in Fahrig v. Garrett, 224 Ga. 817 (165 SE2d 126), does not change the responsibility of the Supreme Court (and likewise the responsibility of the Court of Appeals) under the Constitution (Art. VI, Sec. II, Par. V; Code Ann. § 2-3705) to determine whether an appeal should be dismissed for proper cause.

The case is before this court on an appeal filed in the lower court on February 28, 1969, and within 30 days thereafter, on March 27, 1969, the accused tendered to the trial court a substitute transcript, as authorized for an unreported case, and thereafter the judge covered the entire delay to the date of filing with appropriate orders providing for hearings and extending the time for hearings which clearly disclose an intent on his part to assume responsibility for delay until he could resolve the objections and approve an acceptable substitute for a court reporter’s transcript. We regard the tender to the court as implicitly including a request to extend the time as reasonably necessary to obtain an acceptable substitute for a reporter’s transcript, and we regard the action of the court, in allowing time for objections, hearings thereon, and postponing the date for hearings, as implicitly including a simultaneous extension of time for the filing of the substitute for a court reporter’s transcript. See §§ 6, 10(g), 11, 13(b) and (d), Appellate Practice Act (Ga. L. 1965, pp. 18, 21, 24, 26, 29; 1968, pp. 1072, 1074; Code Ann. §§ 6-804, 6-805(g), 6-806, 6-809 (b) and (d)).

2. The failure of the judge to give a requested instruction, presented after the judge had completed his instructions, in language substantially identical to the second sentence in the first division of the syllabus opinion of Bracewell v. State, 10 Ga. App. 830 (74 SE 440), discloses no harmful error. While the requested instruction may not have been inappropriate, the evidence falls short of disclosing an actual assault by the victim, but does show that the actual slapping of the female victim by the male accused was preceded by a battle of words, during which time the victim alighted from her automobile and moved towards the accused, perhaps at his invitation, and the judge instructed the jury with respect to opprobrious words as justification in the exact language of Code § 26-1409. These instructions were adequate to place the real defense, as shown by the evidence, in proper focus for jury consideration.

3. The court did not err in providing, as a condition for suspension of the sentence to confinement, a payment of $175 for the use of the victim for expenses incurred. While it is agreed that a suspended sentence does not have the effect of placing the defendant on probation, we see no distinction between a condition imposed for a suspension and one imposed for probation, and one of the conditions for probation which may be imposed is “reparation or restitution to any aggrieved person for the damage or loss caused by his offense in an amount to be determined by the court, provided, however, that no reparation or restitutiop to any aggrieved person for the damage or loss caused by his offense shall be made if the amount is in dispute unless the same has been adjudicated.” Ga. L. 1958, pp. 15, 23 (Code Ann. § 27-2711). The record before this court fails to disclose what hearing, if any, or what evidence was adduced, if any, after conviction and before sentencing. This court is not aware of any requirement that the evidence adduced on the trial of an offense must also support the determinations of the court in imposing conditions for suspension. The mere fact that the only evidence of a specified dollar amount of expenses is a dental bill of $21, although it is also clear that the victim did incur other expenses, the amount of which does not appear, affords no basis for this court to assume that the amount is in dispute and has not been adjudicated, or that the amount as determined by the court is in error requiring reversal in respect to the sentence imposed.

Argued October 7, 1969 Decided February 19, 1970. John D. Mattox, for appellant. Hubert Howard, Solicitor, Albert E. Butler, for appellee.

Judgment affirmed.

Whitman and Evans, JJ., concur specially.