Hatcher v. State

Decision Date20 February 1997
Docket NumberNo. A96A1857,A96A1857
Citation224 Ga.App. 747,482 S.E.2d 443
Parties, 97 FCDR 934 HATCHER v. The STATE.
CourtGeorgia Court of Appeals

Page 443

482 S.E.2d 443
224 Ga.App. 747, 97 FCDR 934
HATCHER

v.
The STATE.
No. A96A1857.
Court of Appeals of Georgia.
Feb. 20, 1997.
Certiorari Denied May 30, 1997.

Page 445

Maloy & Jenkins, James K. Jenkins, Atlanta, for appellant.

Robert E. Keller, Dist. Atty., David B. Hornsby, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Hatcher was convicted of violating the Georgia Controlled Substances Act, OCGA § 16-13-30, by possessing less than a gram of methamphetamine or "crank." 1

The evidence is viewed under the standards used in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Howard v. State, 261 Ga. 251, 252, 403 S.E.2d 204 (1991); and King v. State, 213 Ga.App. 268, 269, 444 S.E.2d 381 (1994).

Narcotics agent Hudson was on patrol around 1:00 a.m. when he spotted a vehicle exceeding the speed limit and stopped it. Driver [224 Ga.App. 748] Hatcher immediately jumped out of his car and approached the officer quickly. He appeared nervous, which made Hudson nervous because Hatcher's behavior cautioned the officer that he might have a weapon or have something surreptitious in mind. Hudson asked Hatcher if he had any prior tickets or had recently been jailed. Hatcher responded he had been locked up for violating the Georgia Controlled Substances Act. Hatcher refused consent to search his vehicle.

Hudson read Hatcher his Miranda rights and told him if he had any misdemeanor amounts of marijuana in the vehicle he would issue only a citation for it. Hatcher admitted there was a small amount of marijuana and offered to get it but again refused consent to search. The officer rejected Hatcher's offer because of the risk he had a weapon in the car.

Hudson retrieved his drug dog which, in its second pass around Hatcher's car, alerted to the presence of drugs. Hudson left Hatcher in the custody of another officer and went for a search warrant. When he returned with the warrant, Hatcher admitted both marijuana and "crank" were in a side pouch of the car, and Hudson found the drugs there.

1. The first error enumerated is the dismissal of Hatcher's motion to suppress without a hearing. Six months after arrest, on December 22, 1994, Hatcher waived arraignment and pled not guilty in the presence

Page 446

of his attorney. At no time on that date or any date thereafter did he request an extension for motions. The reason he gave for the delay in filing the motion was that he was unable to obtain access to the search warrant affidavit, which he indicated he needed to comply with the requirement of specificity for the motion. The court was not persuaded that this was good cause. The motion, filed January 17, 1995, was dismissed as untimely and for lack of specificity, at the outset of the separately scheduled motions hearing in February. The trial was held in May.

A defendant aggrieved by an unlawful search and seizure pursuant to a warrant may make a motion to suppress the evidence, which must be in writing and state facts showing the unlawfulness of the search and seizure. OCGA § 17-5-30. The motion must be made at or before the defendant's arraignment and if not made at the proper time is waived unless the time for filing is extended by the judge in writing. Uniform Superior Court Rule 31.1; State v. Grandison, 192 Ga.App. 473, 474, 385 S.E.2d 139 (1989). This rule has evolved over time. See, e.g., Thomas v. State, 118 Ga.App. 359, 360-362, 163 S.E.2d 850 (1968). The purpose of the time requirement in USCR 31.1 is fundamental fairness to all parties and those who must attend trial. See, e.g., Loggins v. State, 260 Ga. 1, 2, 388 S.E.2d 675 (1990). Failing to file a timely motion to suppress amounts to a waiver of even constitutional[224 Ga.App. 749] challenges. Ellis v. State, 216 Ga.App. 232, 233(1), 453 S.E.2d 810 (1995).

Hatcher argues that even if the motion was tardy, it had substantial merit and should have been heard, relying on Collier v. State, 171 Ga.App. 214, 319 S.E.2d 51 (1984). Whether the motion has merit is not an issue; the rule does not apply only to nonmeritorious motions, although facial merit may persuade a court that the motion is not a delaying tactic and, particularly where trial is not imminent, exercise its discretion to extend the time in writing, receive evidence and decide the motion despite defendant's noncompliance with the time requirement. Collier differs for several reasons. It was decided before the advent of the uniform rules; Collier had not been arraigned before trial; and no attorney appeared for Collier before trial. In contrast, Hatcher was arraigned with counsel, who filed motions and attended hearings on Hatcher's behalf long before trial.

State v. Schwall, 193 Ga.App. 694, 695, 388 S.E.2d 705 (1989), also relied on by Hatcher, is likewise distinguishable. Schwall's counsel attended arraignment but only learned of it through his client. He never received notice himself, although he was appointed counsel and had filed pleadings. The trial court permitted the motion to be filed five days after arraignment. We held, "Since defendant's attorney had no prior notice of the arraignment, to dismiss the motion to suppress as untimely would have been manifestly unjust." Id. at 694, 388 S.E.2d 705. Hatcher's counsel does not contend he had no prior notice of arraignment.

Other cases cited by Hatcher do not advance his cause. Gray v. State, 145 Ga.App. 293, 243 S.E.2d 687 (1978), does not indicate the motion was filed untimely or was otherwise procedurally deficient. Both Stansifer v. State, 166 Ga.App. 785, 305 S.E.2d 481 (1983) and Perryman v. State, 149 Ga.App. 54, 253 S.E.2d 444 (1979), which held that the motion was timely if filed before trial, were decided prior to adoption of the Uniform Superior Court Rules.

Hatcher had several options. He could have timely filed the motion and moved for leave to amend it when the affidavit was obtained. He could have sought an extension of time. He could have moved for leave to file late when he had the affidavit....

To continue reading

Request your trial
22 cases
  • Demetrios v. State, A00A1766.
    • United States
    • Georgia Court of Appeals
    • October 24, 2000
    ...hearing. 17. (Citations and punctuation omitted.) Armstrong v. State, 264 Ga. 237(2), 442 S.E.2d 759 (1994); Hatcher v. State, 224 Ga.App. 747, 750(2)(a), 482 S.E.2d 443 (1997). 18. Fugitt v. State, 256 Ga. 292, 296, 348 S.E.2d 451 (1986); Hicks v. State, 256 Ga. 715, 727-728, 352 S.E.2d 76......
  • Danley v. State, A17A0634
    • United States
    • Georgia Court of Appeals
    • June 23, 2017
    ...that evidence. Harkleroad v. State , 317 Ga. App. 509, 512 (1) (b), n. 9, 732 S.E.2d 278 (2012) ; see also Hatcher v. State , 224 Ga. App. 747, 748–749 (1), 482 S.E.2d 443 (1997) ( "[f]ailing to file a timely motion to suppress amounts to a waiver of even constitutional challenges") (citati......
  • Daniels v. State
    • United States
    • Georgia Court of Appeals
    • March 20, 2009
    ...to use in aggravation of punishment pursuant to OCGA § 17-10-2(a)." (Citation and punctuation omitted.) Hatcher v. State, 224 Ga.App. 747, 750(2)(a), 482 S.E.2d 443 (1997). "This [c]ourt has previously held that notice received prior to the jury's being sworn is sufficient to satisfy the re......
  • Gonzalez v. State
    • United States
    • Georgia Court of Appeals
    • November 19, 2015
    ...file a timely motion to suppress amounts to a waiver of even constitutional challenges." (Citations omitted.) Hatcher v. State, 224 Ga.App. 747, 748–49(1), 482 S.E.2d 443 (1997). Thus, "[w]hether the motion [to suppress] has merit is not an issue; the rule does not apply only to non-meritor......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT