Rocco v. State

Court of Appeals of Georgia

Rocco v. State

382 S.E.2d 391, 191 Ga. App. 655, 1989 Ga. App. LEXIS 715

CourtCourt of Appeals of Georgia

DecidedMay 11, 1989

DocketA89A0259

StatusPublished

Cited by1 cases

This text of 382 S.E.2d 391 (Rocco 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.

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Rocco v. State, 382 S.E.2d 391, 191 Ga. App. 655, 1989 Ga. App. LEXIS 715 (Ga. Ct. App. 1989).

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Opinion

Benham, Judge.

All three of the enumerations of error in this appeal from a conviction for driving under the influence of alcohol involve the State’s use of a previous conviction entered on a nolo contendere plea. We reverse.

The State seeks to justify the use of the nolo contendere plea because it was offered for the purpose of impeachment. Even assuming that appellant’s present tense statement, “I don’t drive drunk,” would be contradicted by evidence that appellant had driven drunk in the past, the nolo contendere plea was not admissible for impeachment.

OCGA § 17-7-95 (c) “expressly prohibits the use of a nolo contendere plea against a defendant in any court proceeding as ‘an admission of guilt or otherwise or for any other purpose.’ This case does not fit the previous exceptions provided by law. While we have permitted the admission of such a plea in a civil case for impeachment purposes [cit.], we have not done so in a criminal case. ... As in Beal v. Braunecker, 185 Ga. App. 429, 432 (2) (364 SE2d 308) (1987), we are not persuaded ‘that we should ignore the plain language’ of the code.” Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989). Appellant is entitled to a new trial because of the admission of the nolo contendere plea. Id.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.

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Benham, Judge.

All three of the enumerations of error in this appeal from a conviction for driving under the influence of alcohol involve the State’s use of a previous conviction entered on a nolo contendere plea. We reverse.

The State seeks to justify the use of the nolo contendere plea because it was offered for the purpose of impeachment. Even assuming that appellant’s present tense statement, “I don’t drive drunk,” would be contradicted by evidence that appellant had driven drunk in the past, the nolo contendere plea was not admissible for impeachment.

OCGA § 17-7-95 (c) “expressly prohibits the use of a nolo contendere plea against a defendant in any court proceeding as ‘an admission of guilt or otherwise or for any other purpose.’ This case does not fit the previous exceptions provided by law. While we have permitted the admission of such a plea in a civil case for impeachment purposes [cit.], we have not done so in a criminal case. ... As in Beal v. Braunecker, 185 Ga. App. 429, 432 (2) (364 SE2d 308) (1987), we are not persuaded ‘that we should ignore the plain language’ of the code.” Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989). Appellant is entitled to a new trial because of the admission of the nolo contendere plea. Id.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.

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Bluebook (online)

382 S.E.2d 391, 191 Ga. App. 655, 1989 Ga. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rocco-v-state-gactapp-1989.

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