Barrett v. State
| Decision Date | 07 February 1985 |
| Docket Number | No. 69522,69522 |
| Citation | 173 Ga.App. 452,326 S.E.2d 816 |
| Parties | BARRETT v. The STATE. |
| Court | Georgia Court of Appeals |
Howard T. Scott, Athens, for appellant.
Ken Stula, Sol., N. Kent Lawrence, Asst. Sol., for appellee.
Appellant was convicted of driving while his license was suspended.
1. Appellant appeals on the general grounds, contending that the State did not prove that he received notice his license was suspended and, therefore, his conviction cannot stand. Appellant relies on State v. Orr, 246 Ga. 644, 272 S.E.2d 346 (1980), which held that absent proof by the State of actual or legal notice to the defendant a conviction for driving while one's license is suspended cannot be sustained.
In the instant case a police officer who knew that appellant's license was suspended testified that he observed appellant driving his car and stopped him. Appellant did not have his driver's license and acknowledged to the officer that his license had been suspended. Four persons testified that at the time appellant was allegedly driving his car, it was in the shop for routine maintenance and washing. Appellant testified that at the time he was allegedly driving, he was being driven by an employee of his convalescent home to arrange admission of a patient to a local hospital.
Appellant contends that OCGA § 50-13-18(c) makes notice of suspension an essential element of the offense of driving while one's license is suspended, which was not proven by the State. However, § 50-13-18(c) relates to notice prior to suspension proceedings, not notice that one's license has been suspended. Thus, it has no application here. Nevertheless, we agree that actual or legal notice to the defendant that his license has been suspended is an essential element of driving after one's license has been suspended. Orr, supra. Here, appellant acknowledged that his license had been suspended, so it follows that he had received either actual or legal notice of such suspension. Although four defense witnesses testified that appellant's car was in the shop at the time the policeman testified appellant was driving, this was a question of credibility of witnesses, which is for determination by the jury. Armour v. State, 154 Ga.App. 740, 270 S.E.2d 22 (1980). Hence the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
2. Appellant contends the trial court erred by failing to charge on the proper use of circumstantial evidence. This contention is without merit, as the evidence of all witnesses was direct evidence. Where there is some direct evidence in the case it is not error to fail to charge on circumstantial evidence. Lane v. State, 153 Ga.App. 622, 622(3), 266 S.E.2d 298 (1980).
3. Appellant contends the trial court erred by denying his motion for a mistrial based on prosecutorial misconduct. The...
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