Poole v. State

494 S.E.2d 251, 229 Ga. App. 406, 97 Fulton County D. Rep. 4345, 1997 Ga. App. LEXIS 1425

• Court: Court of Appeals of Georgia
• Decided: November 17, 1997
• Docket: A97A1790
• Status: Published

Opinions

Ruffin, Judge.

Randolph Poole, Jr. was charged by accusation of, inter alia, violation of the City of LaGrange public drunk ordinance. Following a non-jury trial in the State Court of Troup County, the court convicted Poole of the offense. Poole appeals, challenging the sufficiency of the evidence on the ground that the State failed to introduce into evidence a copy of the municipal ordinance. Because we find that the State failed to properly prove the existence of the ordinance, we agree with Poole and reverse his conviction.

1. Before reaching the merits of Poole’s appeal, we must address the jurisdictional issues raised by the dissent. According to the dissent, Poole’s conviction was rendered by a municipal court and his appeal must be dismissed because this Court lacks subject matter jurisdiction to consider a direct appeal from a municipal court. In this regard, the dissent contends that the state court could not have convicted Poole of a municipal ordinance violation because the state court lacked jurisdiction to try such ordinance violations. Rather, the dissent argues, when the state court convicted Poole, it was serving as a municipal court pursuant to OCGA § 15-7-80 et seq. For the following reasons, we disagree with both assertions.

(a) A state court’s criminal jurisdiction is generally governed by OCGA § 15-7-4 (a) (1), which provides that a state court shall have jurisdiction over the “trial of criminal cases below the grade of felony.” This statutory enactment is similar to the legislature’s original declaration in establishing state courts that they “shall have criminal jurisdiction in the county over all misdemeanor cases, but shall not have any jurisdiction over felony cases.” Ga. L. 1970, p. 679, § 7. The only other guidance afforded by our Code relating to a state court’s criminal jurisdiction is OCGA § 15-7-3, which provides that the jurisdiction statute “shall apply to and govern all state courts; and, unless otherwise provided in this chapter, in all cases in which there is a conflict between this chapter and the local law creating the state court, this chapter shall take priority and shall be controlling.”

The local law creating what is now known as the State Court of Troup County is codified at Ga. L. 1962, p. 3020. See also Ga. L. 1970, p. 679, § 3 (changing name of court to State Court of Troup County). The preamble to this enabling legislation shows that the legislature intended in part to create the court in lieu of the City Court of LaGrange and to define its jurisdiction. Id. Specifically, the local law provides that the court “shall have jurisdiction to try and dispose of all criminal cases for all offenses committed in the County of Troup where such offenses are designated by law to constitute a misdemeanor.” Ga. L. 1962, p. 3020, § 3. (Emphasis supplied.) Similarly, the enabling legislation creating the former City Court of LaGrange granted that court criminal jurisdiction “to try and dispose of all criminal cases for all offenses committed in the county of Troup where the offender is not subject to the loss of life or confinement in the penitentiary.” Ga. L. 1899, p. 385, § 3. Importantly, neither enabling statute limited the courts’ jurisdiction to try only “state misdemeanor cases,” but more broadly defined the courts’ jurisdiction to include all misdemeanor offenses. And, although the dissent correctly finds that the former Mayor’s Court had jurisdiction to try municipal ordinance violations, there is no language in Ga. L. 1901, p. 477, § 18, the legislation creating that court, or in OCGA § 36-32-1, which redefined it as a municipal court, granting exclusive jurisdiction to try municipal violations. In the absence of such language, and in light of the broad grant of jurisdiction to the State Court of Troup County, we believe the legislature intended to grant concurrent jurisdiction over these matters to both the municipal court and the state court. See generally OCGA § 1-3-1 (a) (“[i]n 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.”). This is the only reasonable construction of the enabling legislation creating the state court, and it does not conflict with the jurisdictional provision of OCGA § 15-7-4 (a) (1).

We note finally that the cases and local laws cited by the dissent in support of its conclusion that the State Court of Troup County does not have jurisdiction over such municipal misdemeanor violations are simply not controlling. Both Dollar v. State, 160 Ga. App. 759 (288 SE2d 42) (1981) and Floyd v. State, 168 Ga. App. 645 (310 SE2d 749) (1983) concern the jurisdictional limits of the State Court of Cobb County, and the decisions in those cases only interpreted the enabling legislation establishing that particular state court. Similarly, the Georgia law cited in Dollar, and quoted by the dissent, is enabling legislation specifically creating what is now known as the State Court of Cobb County and has no application to the present case. See Ga. L. 1964, p. 3211. For these reasons, we must interpret the local law to provide that the State Court of Troup County has jurisdiction over city code misdemeanor violations.

(b) We also disagree with the dissent that the trial court in this case was acting as a municipal court. Although it is clear that OCGA § 15-7-80 authorizes a county to contract with a municipality “to furnish municipal court services to the municipality,” we do not find, as does the dissent, that “the record is replete with evidence” that the trial court in this case was acting as a municipal court. Rather, the only “evidence” cited by the dissent is the unsworn statement of the assistant solicitor that “the state is under the impression that we are operating under contract.” This is not evidence. Anthony v. State, 213 Ga. App. 303, 305 (2) (444 SE2d 393) (1994). And, the similar “finding” of the trial court, being unsupported by any evidence, is also insufficient to establish the existence of the contract. See Adamson v. Trust Co. Bank, 155 Ga. App. 646, 648 (271 SE2d 899) (1980).

Moreover, even if such a contract existed, more was required of the trial court for it to act as a municipal court. Even after such a contract is entered into and becomes effective, OCGA § 15-7-83 requires that when a state court is acting as a municipal court, that “all judges and other officers of the state court shall be styled as judges and officers of the municipal court; and all pleadings, process, and papers of the municipal court shall be styled as such and not as pleadings, process, and papers of the state court.” OCGA § 15-7-83.

In this case, the record makes it abundantly clear that the State Court of Troup County was not acting as the City of LaGrange Municipal Court. In fact, there is not a single pleading, process or paper styled as a municipal court document. The accusation, Poole’s affidavit of indigency, discovery requests and demand for witnesses, as well as the trial court’s judgment and sentencing form are all styled as documents of the State Court of Troup County. Furthermore, the accusation is signed by the “Solicitor [of the] State Court of Troup County,” and the trial judge signed the judgment as “Judge, Troup County State Court.” Finally, the transcript shows that at the opening of trial proceedings the trial judge stated: “This is the case of the State of Georgia versus Randolph Ray Poole, it’s case number 96-S-3570 in the State Court of Troup County” (Emphasis supplied.) In short, the total lack of compliance with OCGA § 15-7-83 requires a finding that the court in this case was acting as a state court and not a municipal court. And, in this appeal, Poole is simply challenging the sufficiency of the evidence supporting his state court conviction. Accordingly, contrary to the dissent’s finding, this Court does have jurisdiction to consider Poole’s appeal as a direct appeal from a state court judgment of conviction.¹ See OCGA § 5-6-34 (a).

2. Turning to the merits of Poole’s appeal, he asserts that he was convicted of violating a municipal ordinance, but the State failed to prove the existence of the ordinance.² The record shows that the State did indeed prosecute Poole for violating a city public intoxication ordinance. While the record contains evidence showing that Poole was in fact intoxicated in a public place, “there is no showing that such conduct violated any cognizable criminal law of [the] local government. ... In the absence in evidence of a properly admissible copy of the ordinance involved, neither the trial court nor this court may take judicial notice of the existence of a local ordinance. Owens v. State, 153 Ga. App. 525, 527 (2) (265 SE2d 856) [(1980) (physical precedent only)].” Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982). Because the State failed to meet its burden of proving beyond a reasonable doubt that Poole’s public intoxication violated any local ordinance, his conviction must be reversed. See Scarborough v. State, 231 Ga. 7 (200 SE2d 115) (1973); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also LaRue v. State, 137 Ga. App. 762 (224 SE2d 837) (1976) (Court reversed superior court’s denial of motion to suppress and defendant’s conviction because the State failed to introduce certified copy of city ordinance prohibiting public drunkenness).

Judgment reversed.

Andrews, C. J., Birdsong, P. J., Johnson and Blackburn, JJ, concur. Pope, P. J., and Eldridge, J., dissent.

1 I note that the dissent has created quite a dilemma for a defendant in Poole’s shoes. Although the uncontradicted evidence of record shows that the judgment was rendered by a state court, the dissent concludes that he should have filed an application for certiorari to the superior court. If, however, Poole had applied to the superior court for review, his petition would have properly been dismissed because there was no evidence the judgment was issued by a municipal court. See OCGA § 5-4-1 (a).

2 It should be noted that the State has inexplicably failed to file an appellee’s brief in this case. Such conduct not only constitutes a dereliction of the solicitor’s duties under OCGA § 15-18-66 (a) (4), but may also subject him or her to contempt of this Court under Court of Appeals Rule 26 (b).