Sanders v. State
| Decision Date | 14 May 1975 |
| Docket Number | No. 50479,No. 3,50479,3 |
| Citation | 216 S.E.2d 371,134 Ga.App. 825 |
| Parties | R. G. SANDERS v. The STATE |
| Court | Georgia Court of Appeals |
Wallace C. Clayton, Austell, for appellant.
Paul F. Carden, Sol., Herbert A. Rivers, Marietta, for appellee.
Syllabus Opinion by the Court
Defendant appeals his conviction for driving a motor vehicle while under the influence of intoxicants. The court had entered a nolle prosequi on the first accusation against defendant because of a 'scrivener's error,' on August 6, 1974. The second accusation had been filed on August 5, 1974. Trial was held August 6, 1974. The attorney for defendant signed the new accusation and did not request a continuance. At trial he moved to dismiss the new accusation because it 'varies fatally between the original accusation.' The variance complained of was that the first accusation alleged defendant had been driving a '1969 Ford pickup truck with license tag number of RK3478.' The amended accusation did not contain a description of the vehicle defendant was alleged to have been driving. Counsel for defendant explained the basis for his complaint was '(t)hat vehicle does not exist.' The motion was denied. After defendant had been convicted, counsel moved for a new trial, alleging inter alia, 'the court erred in not granting a continuance . . . forcing defendant to trial without adequate time to prepare a defense to the new accusation.' Defendant has enumerated as error before this court general grounds and denial of his motion for a new trial which had included special grounds of: (1) trial court failed to allow counsel 'appropriate or reasonable opportunity to prepare a defense to the new accusation, thereby denying defendant's right to effective assistance of counsel,' and (2) it was error to admit testimony that defendant had refused to submit to various intoxication tests. Held:
1. Defendant did not request a continuance before trial or during trial. His objection was couched in terms alleging a fatal variance between the old and new accusation-which was overruled. He has not asserted the overruling of that objection as an enumeration of erfor at this level. In essence he abandoned one theory asserted during trial for another theory in his motion for a new trial. In so doing, legally-he abandoned both. An issue raised as a basis for a motion for a new trial which was not asserted during the trial, cannot be asserted on appeal as a basis for reversal. Radio Cabs v. Tolbert, 86 Ga.App. 181, 192, 71 S.E.2d 260; Complete AAA...
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Wilson v. State
...and 'mending your hold.' " Redwing Carriers, Inc. v. Knight, 143 Ga.App. 668, 674, 239 S.E.2d 686, 692, accord Sanders v. State, 134 Ga.App. 825, 826(1), 216 S.E.2d 371; Sumners v. State, 137 Ga.App. 493, 494, 224 S.E.2d A third reason exists for lack of prejudicial error. The defendant con......
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Redwing Carriers, Inc. v. Knight
...record and cannot be enlarged or transformed through a process of switching, shifting, and "mending your hold." Sanders v. State, 134 Ga.App. 825, 826(1), 216 S.E.2d 371 (1975) and cases cited; Sumners v. State, 137 Ga.App. 493, 494, 224 S.E.2d 126 (1976) and cases cited; Reese v. State, 13......
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Leonard v. State
...for this court is a court for correction of error and no issue was ever raised during the trial calling for a ruling. Sanders v. State, 134 Ga.App. 825, 826, 216 S.E.2d 371; Redwing Carriers v. Knight, 143 Ga.App. 668, 674, 239 S.E.2d Although defendant complains of the failure of the state......
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Romano v. State
...below, and it is well-settled that this court will not consider questions raised for the first time on review. Sanders v. State, 134 Ga.App. 825, 826, 216 S.E.2d 371 (1975); Scott v. State, 243 Ga. 233, 253 S.E.2d 698 (1979). Secondly, appellant had no standing to object to an alleged viola......