Rooney v. State, A95A0776
| Decision Date | 13 July 1995 |
| Docket Number | No. A95A0776,A95A0776 |
| Citation | 217 Ga.App. 850,459 S.E.2d 601 |
| Parties | ROONEY v. The STATE. |
| Court | Georgia Court of Appeals |
Ronnie K. Batchelor, Lawrenceville, for appellant.
Daniel J. Porter, Dist. Atty., Phil Wiley, Asst. Dist. Atty., Lawrenceville, for appellee.
We granted John Thomas Rooney's application for interlocutory appeal to consider whether a superior court judge erred in reconsidering, and subsequently revoking, the pretrial bond set by another judge, who was presiding in the superior court judge's place by designation. Under the facts of this particular case, we conclude that no error occurred because the designated judge should not have granted bond to Rooney after expressly finding that he was likely to intimidate witnesses or otherwise interfere with the administration of justice.
The Gwinnett County police arrested Rooney, and a magistrate formally charged him with rape, aggravated sodomy, aggravated sexual battery, burglary and battery. The magistrate set bond in the amount of $25,000 on each of the charges of aggravated sexual battery, burglary and battery. The magistrate did not, however, set bond on the rape and aggravated sodomy charges because only a superior court judge has the authority to do so. See OCGA § 17-6-1(a)(3), (4).
On October 6, 1994, Rooney filed a petition for bond in the Superior Court of Gwinnett County. The matter was assigned to Judge James Oxendine, and a hearing was scheduled for October 20, 1994. On the day of the hearing, Judge Oxendine was out of town. Rooney admits, however, that Judge Oxendine had delegated authority to hear the matter to Gwinnett County Recorder's Court Judge Michael Greene pursuant to OCGA § 17-6-1(h). Neither party disputes that Judge Greene's designation was appropriate, nor does either party contend that his designation was made pursuant to OCGA § 15-1-9.1(e). Thus we reject the dissent's assertion that a copy of the actual order designating Judge Greene must be obtained before a decision can be reached in this case.
During the bond hearing, Judge Greene heard testimony from Rooney and two witnesses for the State. The State's first witness was Investigator Lorraine Jackson. She testified that her investigation showed that Rooney had forced his way into a woman's home. When the woman resisted Rooney's aggressions, Rooney became enraged. Rooney took the woman into the bathroom and forced her to perform oral sodomy on him. He then sodomized her with a tube of toothpaste. Thereafter, Rooney took the woman into her bedroom where he allegedly beat her with a belt and raped her. The woman later identified Rooney as her attacker in a photographic lineup.
The State's second witness, Billy Davis, testified that he was in a holding cell with Rooney. According to Davis, Rooney approached him about having the woman that accused him of rape "done in" during a carjacking. Davis said Rooney told him the woman's name. He also testified that Rooney later told him that Rooney might try to pay the woman off.
After the bond hearing, Judge Greene issued a written order, dated October 21, 1994, wherein he specifically found that there was a substantial risk that Rooney would intimidate witnesses or otherwise interfere with the administration of justice. Nonetheless, Judge Greene set bond in the amount of $50,000 on each of the rape and aggravated sodomy charges. Additionally, he ordered that the rape bond be "cash only." Judge Greene did not disturb the bonds previously set by the magistrate.
On November 7, 1994, the State filed a motion for reconsideration. Judge Oxendine held a hearing on the State's motion on November 14, 1994. During this hearing, Rooney presented no evidence, and the State only recalled Davis, who in essence gave the same testimony that he previously had given. At the hearing's conclusion, after considering Davis's testimony, the transcript of the hearing before Judge Greene and argument from both sides, Judge Oxendine granted the State's motion. By order dated November 14, 1994, he revoked the rape and aggravated sodomy bonds. Judge Oxendine specifically stated in his order that there was evidence that Rooney raped and sodomized the victim and that there was a risk that Rooney would intimidate witnesses if released on bond. It is undisputed that Rooney had not made bond prior to the time the State filed its motion for reconsideration.
In his sole enumeration, Rooney contends that Judge Oxendine lacked the authority to reconsider Judge Greene's order and that Judge Oxendine erred when he vacated the order and denied bond on the rape and aggravated sodomy charges. We disagree.
Contrary to Rooney's assertion otherwise, this is not a case where one superior court judge has reconsidered and vacated another superior court judge's order. In this case, Judge Greene merely was presiding over a matter pending before Judge Oxendine's court. Moreover, any authority Judge Greene had was given to him by Judge Oxendine. Consequently, any order Judge Greene issued must be viewed as coming from Judge Oxendine's court. Having said this, we hold that the authority to reconsider and subsequently vacate any such order was within Judge Oxendine's sound legal discretion.
We reject the dissent's position that Judge Oxendine lacked the authority to entertain the State's motion for reconsideration merely because the motion was filed on the first day after the expiration of the term of court in which Judge Greene originally issued his bond order. See OCGA § 15-6-3(20). Although the dissent relies on Pledger v. State, 193 Ga.App. 588, 388 S.E.2d 425 (1989) in support of such a proposition, Pledger is distinguishable from the case at bar because it did not involve the reconsideration of a bond order. Moreover, we do not consider the issuance of a bond order to be an "interlocutory ruling" of the type contemplated in Pledger. Therefore, Pledger is not controlling here. To hold otherwise would be the equivalent of setting bond orders in stone after the expiration of the term in which they are entered. We also note that neither of the parties to this appeal argues that expiration of the court term precluded Judge Oxendine from reconsidering Judge Greene's initial order.
Upon review of the record, including the transcripts from both the bond and motion for reconsideration hearings, we conclude that Judge Oxendine did not abuse his discretion in reconsidering Judge Greene's order. (Emphasis supplied.) Ayala v. State, 262 Ga. 704, 705(1), 425 S.E.2d 282 (1993). Here, Judge Greene made no such finding. To the contrary, he specifically found that Rooney posed a substantial risk of intimidating witnesses and otherwise interfering with the administration of justice. Because of this finding, Judge Greene should not have granted bond to Rooney.
In denying bond upon reconsideration, Judge Oxendine sufficiently set forth his reasons for doing so in his order, as is required by the Supreme Court's holding in Lane v. State, 247 Ga. 387, 389, 276 S.E.2d 644 (1981). Because we find no manifest or flagrant abuse of discretion in his decision, we affirm. See Jernagin v. State, 118 Ga. 307, 308, 45 S.E. 411 (1903).
Judgment affirmed.
SMITH, J., not participating.
The court was not authorized to entertain the motion for reconsideration because it was filed on the first day of the next term, when the court could not act on it. The pretrial bond order was entered on October 26, during the September term of the court. OCGA § 15-6-3(20). The next term commenced on November 7, the first Monday of November 1994. Id. The State's motion for reconsideration was filed on that day, and the court acted on it on November 15.
As in Pledger v. State, 193 Ga.App. 588(2), 388 S.E.2d 425 (1989), both of these filings were of no effect because the pretrial bond order had become "upon the roll" and was not subject to review or revision by ...
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