Snellings v. State

Court of Appeals of Georgia

Snellings v. State

391 S.E.2d 36, 194 Ga. App. 552, 1990 Ga. App. LEXIS 197

Court of Appeals of Georgia·Decided February 19, 1990·No. A89A2033·Published·Cited by 6 cases

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Cooper, Judge.

Convicted in probate court of speeding, appellant appealed to superior court. This appeal is from the superior court’s affirmance of conviction. We reverse.

Probate courts are empowered by OCGA § 40-13-21 to entertain prosecutions for State traffic offenses. However, in OCGA § 40-13-23, that power is made contingent on the obtention of a written waiver of trial by jury: “No court defined in this article shall have the power to [553] dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first waive in writing a trial by jury.” (Emphasis supplied.) In appellant’s appeal to superior court, the court found as a fact that no such waiver was executed in probate court. The superior court held, nonetheless, that an oral waiver at a recorded hearing was sufficient compliance with the statute. We cannot agree.

The language of the Code section is clear and unambiguous: without a written waiver of trial by jury, the probate court is without authority to proceed to disposition of the case. Although the next sentence of the section puts the burden on the defendant to notify the court if a jury trial is desired, the first sentence unmistakably places on the probate court the responsibility of procuring a written waiver before disposing of the case. Since that responsibility was not met in this case, the contingency on which the probate court’s subject matter jurisdiction depended did not occur. “The judgment of a court having no jurisdiction of the person or subject matter ... is a mere nullity. . .” OCGA § 17-9-4. The judgment of conviction entered in probate court was, therefore, a mere nullity and the superior court’s failure to proclaim it so was error.

Our holding that all the proceedings below were a nullity renders it unnecessary to address the other issues raised by appellant.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Beasley, JJ., concur. Been, P. J., dissents.

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Cooper, Judge.

Convicted in probate court of speeding, appellant appealed to superior court. This appeal is from the superior court’s affirmance of conviction. We reverse.

Probate courts are empowered by OCGA § 40-13-21 to entertain prosecutions for State traffic offenses. However, in OCGA § 40-13-23, that power is made contingent on the obtention of a written waiver of trial by jury: “No court defined in this article shall have the power to [553] dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first waive in writing a trial by jury.” (Emphasis supplied.) In appellant’s appeal to superior court, the court found as a fact that no such waiver was executed in probate court. The superior court held, nonetheless, that an oral waiver at a recorded hearing was sufficient compliance with the statute. We cannot agree.

The language of the Code section is clear and unambiguous: without a written waiver of trial by jury, the probate court is without authority to proceed to disposition of the case. Although the next sentence of the section puts the burden on the defendant to notify the court if a jury trial is desired, the first sentence unmistakably places on the probate court the responsibility of procuring a written waiver before disposing of the case. Since that responsibility was not met in this case, the contingency on which the probate court’s subject matter jurisdiction depended did not occur. “The judgment of a court having no jurisdiction of the person or subject matter ... is a mere nullity. . .” OCGA § 17-9-4. The judgment of conviction entered in probate court was, therefore, a mere nullity and the superior court’s failure to proclaim it so was error.

Our holding that all the proceedings below were a nullity renders it unnecessary to address the other issues raised by appellant.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Beasley, JJ., concur. Been, P. J., dissents.

Snellings v. State, 391 S.E.2d 36, 194 Ga. App. 552, 1990 Ga. App. LEXIS 197 (Ga. Ct. App. 1990).

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391 S.E.2d 36 (Snellings v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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