Pope v. State

• Decision Date: 16 October 1987
• Docket Number: No. 74393,74393
• Citation: 184 Ga.App. 547,362 S.E.2d 123
• Parties: POPE v. The STATE.
• Court: Georgia Court of Appeals

Page 123

362 S.E.2d 123

184 Ga.App. 547

POPE v. The STATE.

No. 74393.

Court of Appeals of Georgia.

Oct. 16, 1987.

Joseph L. Smith, for appellant.

E. Byron Smith, Dist. Atty., Hugh D. Sosebee, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Pope was charged with two counts of theft by taking a motor vehicle, burglary, possession of less than one ounce of marijuana, and possession of a firearm by a convicted felon. After indictment, Pope's attorney, Remick, filed a petition for a psychiatric examination which was granted by the court with direction that the findings be returned to it. On the date trial was set, Remick filed a special plea of incompetency to stand trial pursuant to OCGA § 17-7-130. At arraignment, Pope, engaged another lawyer, Garland, and entered guilty pleas to the first three counts.

Six weeks later Pope, through yet a third attorney, Smith, filed an amended petition to withdraw his guilty pleas and an extraordinary motion for new trial on the grounds that the pleas were not knowingly, intelligently and voluntarily entered because he was mentally incompetent at that time, and that the judgments and sentences imposed on the pleas were invalid because the special plea of incompetency was still pending at the time of the pleas. The trial court overruled the petition and appeal was taken to this Court. In Pope v. State, Case No. 70294, decided September 6, 1985, and not officially reported, this Court, in a two-judge decision with one judge concurring specially, determined that federal constitutional requirements mandated that allegations in Pope's petition be determined under OCGA § 17-7-130(a) in regard to his competency to enter his guilty pleas. Accordingly, the case was remanded for further proceedings.

The trial court conducted a hearing to ascertain if there was evidence capable of production as to defendant's mental state at the time he entered the guilty pleas. It subsequently entered an order finding that there was evidence of a nature and quality that would allow a jury to determine Pope's mental capacity at the time of the pleas and ordering that the issue of mental competency proceed to a jury trial. Defendant made an extraordinary motion for the court to reconsider the order on the basis that he had been unable to locate a doctor whose testimony was assertedly crucial in making the determination as to his competency. After hearing argument, the court denied the motion. The issue was tried before the jury, which found against the plea of incompetency, and the court entered final judgment thereon; it is appealed.

Appeals from adverse determinations in competency trials have been held to be interlocutory in nature and therefore subject to the procedure of interlocutory review including the ten-day certificate. See, e.g., Watson v. State, 229 Ga. 787, 789(1), 194 S.E.2d 407 (1972); Spell v. State, 120 Ga.App. 398, 170 S.E.2d 701 (1969). However, in this case the admissions of guilt for the substantive offenses having occurred and the denial of the motion to withdraw the pleas and the extraordinary motion for new trial having gone up on appeal, the judgment from the competency trial is a final one. In fact the prior opinion stated: " 'If the jury finds that the appellant was not mentally competent at the time of his trial, the [guilty pleas] in the main case must be set aside. On the other hand, if the appellant fails by a preponderance of the evidence to prove incompetence at the time of his trial, the [pleas] of guilty shall stand.' " Since final judgment was entered allowing the pleas to remain in force and effect, direct appeal is proper.

1. In three separate enumerations of error, Pope asserts the general grounds, reviewing the evidence at the competency trial.

The trial of a special plea of insanity or mental incompetency is in the nature of a civil proceeding. Banks v. State, 246 Ga. 178, 181(3), 269 S.E.2d 450 (1980). In our consideration of the general grounds we would not have the discretion to grant a new trial if there is any evidence to support the verdict. OCGA §§ 5-5-20; 5-5-21; see the cases annotated. In such a proceeding, the burden of producing evidence is on the defendant. Banks v. State, supra. There was evidence to support the verdict of competency.

2. In enumerations four and five, appellant maintains that the court erred in ordering the case for a jury trial on the special plea and in denying his motion to reconsider the order because he claims that "a nunc pro tunc determination of competency two and one-half years after his guilty pleas is a denial of due process of law afforded to him under the Constitution of the State of Georgia, and of the United States." He claims that this was a denial in particular because he was unable to locate the doctor who examined him during his two-week stay at Central State Hospital just prior to his guilty pleas. He claims the doctor had gone back to Turkey.

Appellant's reasons for need of this evidence were that "the testimony of the doctor was crucial for a determination of the effect of an abrupt withdrawal from Haldol, plus the fact that the doctor would be examined as to why he prescribed Haldol and the dosage that he prescribed."

To begin with, the state stipulated to the medical records from Central State Hospital, so the jury had the benefit of those records, including the final summary format prepared by Dr. Pamir, the physician in question, which...