Richards v. State

542 S.E.2d 622, 247 Ga. App. 345, 2000 Fulton County D. Rep. 148, 2000 Ga. App. LEXIS 1388
CourtCourt of Appeals of Georgia
DecidedNovember 21, 2000
DocketA00A1460
StatusPublished
Cited by1 cases

This text of 542 S.E.2d 622 (Richards v. State) 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
Richards v. State, 542 S.E.2d 622, 247 Ga. App. 345, 2000 Fulton County D. Rep. 148, 2000 Ga. App. LEXIS 1388 (Ga. Ct. App. 2000).

Opinion

Ruffin, Judge.

Alan Gerald Richards, Sr. was convicted of two counts of second degree vehicular homicide. On appeal, Richards challenges the sufficiency of the evidence, and he contends that he was denied effective assistance of counsel, and that the court erred in denying his motion for a directed verdict of acquittal. For reasons that follow, we affirm.

1. Following his conviction, Richards filed a timely motion for new trial. More than 30 days after the date of the judgment, he voluntarily withdrew his motion for new trial and filed this appeal. Under OCGA § 5-6-38 (a), an appeal ordinarily must be filed within 30 days of the judgment, and failure to do so divests this Court of jurisdiction.1 Accordingly, we must first address whether this Court has jurisdiction to entertain this appeal. In so doing, we are confronted with two lines of authority interpreting OCGA § 5-6-38 (a). Under that Code section,

[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial . . . has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.

Although the express language of the Code section appears to require the entry of a court order to “dispose” of the motion, in Golden v. [346]*346Credico, Inc.,2 this Court concluded that “[a] motion for new trial can be disposed of in four ways: (1) overruled, (2) granted, (3) dismissed, or (4) withdrawn by movant.” This rationale was also followed in Heard v. State3 and Booker v. Amdur.4

In Taylor v. State,5 however, OCGA § 5-6-38 was interpreted to require court action to dispose of a motion for new trial. Because Taylor had withdrawn his motion for new trial, this Court concluded that it lacked jurisdiction to entertain the appeal. This reasoning was followed in both Hall v. State6 and Marshall v. State.7

This issue evidently was raised before the Supreme Court in Johnson v. State.8 Although the majority did not expressly address the issue, the dissent asserted that the Court was without jurisdiction to entertain the appeal because the trial court never entered any order on the defendant’s motion for new trial.9 However, by addressing the appeal on its merits, the majority necessarily concluded that it had jurisdiction, implicitly ruling that a withdrawal “disposes” of a motion for purposes of filing a notice of appeal. Accordingly, we are compelled to conclude that a withdrawal of a motion for new trial constitutes a “disposal” of the motion under OCGA § 5-6-38 (a). To the extent that cases such as Hall, Marshall, and Taylor hold otherwise, they are hereby overruled.

2. In his first enumeration of error, Richards challenges the sufficiency of the evidence. On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict.10 Moreover, as the reviewing court, we do not weigh the evidence or decide witness credibility, but only determine the sufficiency of the evidence under the standard of Jackson v. Virginia.11 As long as there is some competent evidence, even though contradicted, to support each fact essential to the State’s case, the jury’s verdict will be upheld.12

So viewed, the evidence established that, following a basketball game, Richards drove seven children in his Isuzu Rodeo. None of the children was wearing a seat belt. As Richards was traveling southbound on Tara Boulevard, he entered the intersection at Tara and State Road 54. While crossing the intersection, Richards hit a pickup [347]*347truck and lost control of the Rodeo. The Rodeo slid sideways, then rolled over several times. All of the children were ejected from the Rodeo, and two 13-year-old boys were killed.

Michael McKinney, a passenger in the Ford pickup truck, testified that the truck had been at a complete stop for at least a minute before the light changed from red to green. As the truck pulled into the intersection, it was suddenly struck on the front right side by the Rodeo. According to McKinney, “[h]e ran the red light. I believe that he was not paying attention to the light because he had seven boys in the car.” McKinney estimated that Richards was going 60 mph, which he described as “too fast.”

Although Jessie Jackson, the driver of the Ford pickup truck, died before trial, his testimony was read into evidence. According to Jackson, when the light turned green, he pulled into the intersection, and his truck was hit by a vehicle that “just came through there just like a flash,” going “at a high rate of speed.” Jackson testified that he had never seen “[any]one run a red light like that before.”

Another driver, Brian Whitlock, was stopped in the lane immediately next to Jackson’s truck. When the light turned green, Whitlock started forward, but managed to stop after spotting the oncoming Rodeo out of the corner of his eye. Whitlock testified that Jackson’s truck was no more than two feet ahead of his car after he braked. Whitlock’s wife, a passenger in the car, also testified that the light was green when Whitlock proceeded into the intersection.

Gary Moore, whose car was two cars behind Jackson’s truck, also testified that the light had turned green. According to Moore, he saw the Rodeo for a split second before it struck a “glancing blow” to the pickup truck. In a written statement, Moore described the events as follows:

I was at the intersection of Hwy 19/41 and Hwy 54 (going east on Hwy 54) waiting for the light to change. When the light eventually did change and traffic began to move a white pickup three cars ahead of my car was struck by a blue/green SUV that ran the red light.

Neal Spradlin, the Clayton County Traffic Engineer, testified that county traffic engineers had set the traffic control device at the intersection of SR 54 and Tara Boulevard so that the yellow caution light lasted for 4.7 seconds followed by an all red in every direction for 1.3 seconds. Spradlin further testified that, if the light for SR 54 was green, the light on Tara Boulevard would not have been green. Finally, Spradlin testified that there was no indication that the traffic light had malfunctioned on the day of the collision.

Richards was convicted of two counts of vehicular homicide [348]*348based on his failure to come to a complete stop at a red light. On appeal, Richards contends that the evidence was insufficient to establish that he ran a red light. We disagree.

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Related

Heard v. State
552 S.E.2d 818 (Supreme Court of Georgia, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
542 S.E.2d 622, 247 Ga. App. 345, 2000 Fulton County D. Rep. 148, 2000 Ga. App. LEXIS 1388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-state-gactapp-2000.