Jeter v. State, No. A04A1362.

• Decision Date: 26 August 2004
• Docket Number: No. A04A1362.
• Citation: 603 S.E.2d 783,269 Ga. App. 266
• Parties: JETER v. The STATE.
• Court: Georgia Court of Appeals

603 S.E.2d 783

269 Ga. App. 266

JETER v. The STATE.

No. A04A1362.

Court of Appeals of Georgia.

August 26, 2004.

Gregory Holt, Law Offices of Greg W. Holt, Warner Robins, for Appellant.

Alan Tawse, Solicitor General, Arthur Creque, Chief Assistant Solicitor-General, for Appellee.

BARNES, Judge.

David Jeter appeals the trial court's dismissal of his motion to reopen his case. Jeter contends the trial court erred by doing so because the court improperly forfeited his bond. We disagree, and affirm.

Jeter's motion contended that after a mistrial was granted during an earlier trial for violations of OCGA §§ 40-6-391(a)(5) (driving under the influence), 40-6-48 (improper lane change), and 40-6-253 (open container), his case again appeared on a trial calendar. His counsel then sent a letter to the trial court requesting a continuance because Jeter was absent from the country. The letter stated that Jeter, a defense contractor, was "on some sort of top secret mission to the Middle East," and that "the apparent security of the mission, during the on-going war, has made it impossible to get the necessary data to back up this request."

The trial court, however, denied the request, and after Jeter failed to appear his cash bond was forfeited on October 17, 2002. On December 4, 2002, Jeter's counsel wrote the trial judge expressing his surprise that he had learned that Jeter's bond had been forfeited and stating his intent to seek to have the case reopened. The letter further stated that counsel was "requesting that this court rescind any order of forfeiture. If a hearing is necessary, please have your staff notify my office in order that appropriate documents can be filed." The record does not reflect that this letter to the trial judge was filed until it was attached as an exhibit to Jeter's motion to reopen the case that was filed on November 19, 2003.

The motion contended that the case should be reopened because no bond forfeiture was granted by the court after a hearing as required by OCGA § 17-6-71(a).¹ Although contending that this Code section was inapplicable to Jeter's situation because he posted a cash bond for a traffic offense, see OCGA §§ 17-6-8² and 40-13-58,³ the State also moved to dismiss the motion because it was untimely. Thereafter, finding that Jeter's motion was barred by the 180-day time limit established in OCGA § 40-13-33⁴ for challenging misdemeanor traffic offenses, the trial court granted the State's motion. This appeal followed.

Pretermitting whether Jeter's cash bond was properly revoked, OCGA § 40-13-33 bars consideration of his motion. Under OCGA § 40-13-33(a) any challenge to a traffic conviction must be made within 180 days of the date the conviction becomes final,⁵ and the failure to do so divests the court of jurisdiction. OCGA § 40-13-33(d). As this Code section applies "to `all challenges to final convictions' of misdemeanor traffic offenses . . .," Brown v. Earp, 261 Ga. 522, 524, 407 S.E.2d 737 (1991), Jeter's challenge to his bond forfeiture was time barred, Walker v. State, 199 Ga.App. 701, 702-703, 405 S.E.2d 887 (1991), and the trial court did not err by dismissing his motion to reopen his case.

Judgment affirmed.

BLACKBURN, P.J., and MIKELL, J., concur.

1. The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served within ten days of such failure to appear by certified mail or statutory overnight delivery to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice.

2. If any person arrested for a misdemeanor arising out of a violation of the laws of this state...