Lipscomb v. State

• Decision Date: 08 February 1990
• Docket Number: No. A89A1648,A89A1648
• Citation: 194 Ga.App. 657,391 S.E.2d 773
• Parties: LIPSCOMB v. The STATE.
• Court: Georgia Court of Appeals

Page 773

391 S.E.2d 773

194 Ga.App. 657

LIPSCOMB v. The STATE.

No. A89A1648.

Court of Appeals of Georgia.

Feb. 8, 1990.

Rehearing Denied Feb. 27, 1990.

Certiorari Denied April 5, 1990.

Robert J. Reed, Gainesville, for appellant.

C. Andrew Fuller, Dist. Atty., Daniel A. Summer, David Turk, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Lipscomb appeals his conviction of possession of more than an ounce of marijuana, OCGA § 16-13-30(j).

Viewed in favor of the verdict, the evidence was that, a little before midnight on November 20, 1986, defendant was pulled over for running a stop sign by Officer Peck. The officer sensed the odor of alcohol and administered field tests, which defendant did not pass. He placed defendant under arrest for D.U.I. and called a wrecker to tow the car. He inventoried it and discovered on the floorboard of the passenger side a paper sack containing 15 packages of marijuana weighing 1.2 ounces. He was charged with possession with intent to distribute and convicted of simple possession.

Defendant testified the marijuana was not his and its presence in the car was unknown to him. He contended that he had taken some children home from basketball camp, dropped them off and went to a convenience store, where he met a friend who gave him one beer which he drank there. He went to a fast food restaurant and ate a hamburger. As he was leaving, he was flagged down by Turner and Holcombe, who wanted a ride to the American Legion. He knew them and that they "had always been in trouble." He was stopped after he dropped them off.

1. First, we consider our jurisdiction of this appeal. Defendant was tried in May of 1987. The sentencing hearing was conducted on August 10, but the judgment dated that day was not filed with the clerk until October 8, 1987, making that the date of final judgment. Howard v. State, 182 Ga.App. 403, 404(1), 355 S.E.2d 772 (1987); Ballard v. State, 131 Ga.App. 847, 848, 207 S.E.2d 246 (1974), overruled on other grounds, 246 Ga. 455, 271 S.E.2d 851 (1980). A Motion for New Trial was handed to the court on August 10, 1987, and an order entered correcting its filing date to August 10 after administrative error resulted in its not being stamped filed until December 22, 1987. Thus, the motion for new trial was rendered premature and invalid by the delayed filing of the judgment. Moore v. Moore, 229 Ga. 600, 601(1), 193 S.E.2d 608 (1972); Joiner v. Perkerson, 160 Ga.App. 343, 287 S.E.2d 327 (1981).

This does not mean that jurisdiction of an appeal is lost if the notice of appeal is filed within 30 days of the order disposing of the technically premature motion although affirmance is necessary of any alleged error premised on the motion. Hill v. Bailey, 187 Ga.App. 413, 415(1), 370 S.E.2d 520 (1988) and cases cited therein. The notice was filed within 30 days of the court's order of March 9, 1989, denying both this motion and an interim extraordinary motion for new trial.

2. Defendant asserts as error the disallowance of a court clerk's testimony regarding certain criminal records. Defendant attempted to introduce into evidence the criminal records of Turner and Holcombe. Neither man was called or subpoenaed by either party, although Turner was in the local jail during the trial, under or awaiting indictment for an unrelated offense, which fact was known to both the State and defendant.

Defendant called a representative from the clerk's office and asked her if they had been able to determine whether Turner had any criminal charges against him. An objection on the ground that the best evidence would be copies of the convictions was initially sustained, and defendant requested the clerk to provide them, although this was never done. The State also objected on the ground of relevance. After further discussion, the relevance objection was also sustained.

Defendant did not tender the copies of the convictions which he desired to have introduced but only made a proffer of the testimony of the clerk's representative, which was that she had located records for a Chris Turner and a Holcombe and they were available. There were numerous charges and convictions for non-drug crimes, with Turner having one "violation of Georgia Drug Abuse Control Act, entered a plea and was sentenced in '73," and Holcombe having a "violation of Georgia Drug Abuse Control Act that he was sentenced on 5/20 of '85...."

The objection based on the failure to produce the best evidence was properly sustained. OCGA § 24-5-4(a). Court records, properly authenticated, are admissible. OCGA § 24-5-31. These, however, were not produced. The testimony of the deputy clerk as to their content was not only not the best evidence, Watts v. Six Flags Over Ga., 140 Ga.App. 106, 108(4), 230 S.E.2d 34 (1976), it was also hearsay. OCGA § 24-3-1; Glenridge Unit Owners Assn. v. Felton, 183 Ga.App. 858, 859(3), 360 S.E.2d 418 (1987); Porterfield v. State, 150 Ga.App. 303, 304(3), 257 S.E.2d 372 (1979). Thus, no proper proffer of admissible evidence having been made, its exclusion was proper. Flynt v. State, 153 Ga.App. 232, 242(III d), 264 S.E.2d 669 (1980).

We need not consider the relevance ground.

3. Defendant's second enumeration alleges error in the court's "not granting a directed verdict ... based upon the Equal Access doctrine." There was no motion for directed verdict made by defendant and there is thus nothing for us to consider. Lawton v. State, 191 Ga.App. 116, 118, 381 S.E.2d 106 (1989); Proffitt v. State, 181 Ga.App. 564, 566(2), 353 S.E.2d 61 (1987).

4. In February 1988, defendant filed an Extraordinary Motion for New Trial based on his discovery on September 15, 1987, of new evidence. Counsel's affidavit alleged that he had been told by Turner that day that the prosecutor had talked to...