State v. Bradshaw

243 S.E.2d 547, 145 Ga. App. 278, 1978 Ga. App. LEXIS 1948

• Court: Court of Appeals of Georgia
• Decided: February 8, 1978
• Docket: 55119
• Status: Published

Opinions

Shulman, Judge.

Subsequent to his indictment on four criminal charges, appellee filed a notice to produce in accordance with Code Ann..§ 38-801 (g). The state responded with a motion to quash the notice. After two hearings, the trial court issued an order modifying the notice. This interlocutory appeal was granted to review that order.

1. The trial court’s order included a finding that the notice to produce, as drawn, was ". . . unreasonably oppressive, broad, indefinite and inclusive.” Appellant argues that, after such a finding, the trial court was without authority to modify the notice. That argument is patently without merit in view of the language of the governing statute which empowers a trial judge to take that very action in that situation: "... the court, upon written motion..., may (1) quash or modify the subpoena if it is unreasonable and oppressive, . . .” (Emphasis supplied.) Code Ann. § 38-801 (b) (subsection (b) is made applicable to notices to produce by subsection (g)).

2. In a related enumeration of error, the state argues that the trial court, having found the notice to produce overbroad, was without authority to modify the notice without a showing by appellee that the items sought were specified, in existence, in the possession, custody and control of the prosecutor, material and relevant, admissible, necessary to his defense, and that the notice was made in good faith. It is then asserted that appellee failed to make the required showing.

Assuming, without deciding, that such a showing is necessary (but see Haynie v. State, 141 Ga. App. 688, 692-693 (234 SE2d 406)), the state has failed to demonstrate that the trial judge’s order was not supported by the evidence. Although the trial court’s order recites that evidence had been taken at the first hearing on this matter, and the notice of appeal stated that a transcript of evidence and proceedings would be filed, no such transcript is included in the record sent to this court. There is in the record a certificate from the clerk of the trial court averring that, as of a date almost three months after the record was transmitted to this court, no transcript had been filed. "An appeal with enumerations of error dependent upon a consideration of the evidence heard by the trial court will, absent a transcript, be affirmed. [Cits.]” Chapman v. Conner, 138 Ga. App. 518 (1) (226 SE2d 625). See also Brown v. State, 223 Ga. 540 (2) (156 SE2d 454). The state, having failed, by not filing a transcript, to support its enumeration of error, is not entitled to reversal on this issue.

Argued January 18, 1978 Decided February 8, 1978 Rehearing denied March 14, 1978 — Cert, applied for. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellant.

3. The state alleges that the trial court erred in "... making an order as unreasonably oppressive, broad, indefinite and inclusive as the Notice to Produce it found subject to those objections.” That allegation is simply not borne out by the record. The items which the order requires the state to produce are fewer than those sought by the notice to produce and are limited to those relevant to the issues in the case. This enumeration is meritless.

4. In its final enumeration of error, appellant complains that the trial court made the order conditional, making compliance with the court’s order a condition for denying appellee’s notice to produce. Although the order does contain language of condition, the clear purpose of the language is to modify rather than condition. The court, rather than granting the motion to quash, modified the defective notice, restricting its scope. We hold that action to be within the authority to modify a defective notice conferred by Code Ann. § 38-801 (b) (1). Although the language involved may have been somewhat less than precise, there was no error in the order modifying appellee’s notice to produce.

Judgment affirmed.

Bell, C. J., and Birdsong, J., concur. Harris & Rice, Earl D. Harris, for appellee.