Smith, In re, A93A0021

• Decision Date: 03 December 1993
• Docket Number: No. A93A0021,A93A0021
• Citation: 439 S.E.2d 725,211 Ga.App. 493
• Parties: In re William E. SMITH, Sheriff.
• Court: Georgia Court of Appeals

Page 725

439 S.E.2d 725

211 Ga.App. 493

In re William E. SMITH, Sheriff.

No. A93A0021.

Court of Appeals of Georgia.

Dec. 3, 1993.

Reconsideration Denied Dec. 20, 1993.

Certiorari Denied Feb. 18, 1994.

Jones, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, and Garland, Samuel & Loeb, Donald F. Samuel, Atlanta, for appellant.

Michael J. Bowers, Atty. Gen., Michael E. Hobbs, Deputy Atty. Gen., Patrick D. Deering, Asst. Atty. Gen., and John E. Hennelly, Staff Atty., for appellee.

SMITH, Judge.

William E. Smith, the Sheriff of Camden County, appeals from an order of the Camden County Superior Court holding him in contempt for his failure to produce a document pursuant to court order.

The order in issue was entered in the criminal case of one Bobby Graham, then an inmate at the Camden County jail. Graham, a trusty, was involved in an automobile accident on June 15, 1991, while driving a car he had been washing at the jail. Following this incident, concerns were raised that Graham may have been intoxicated at the time of the accident; that Sheriff Smith sometimes arranged for Graham to perform work outside the jail for pay; that earlier on the day of the accident, Smith had personally taken Graham to wax floors at a private home on Jekyll Island, where Graham had consumed alcoholic beverages; and that on the ride back to the jail from Jekyll Island, Smith had allowed Graham to purchase beer with his pay. When these concerns arose, Smith sought the advice of private counsel. Thereafter, when Graham was ordered transferred to another jail without a stated reason Smith became concerned about protecting himself from possible liability in any civil action that might arise regarding the accident. He again conferred with counsel, who advised him to obtain a statement from Graham regarding what had occurred on the day of the accident. Such a statement was taken on July 31, 1991 by sheriff's deputies. However, the statement was not placed in Graham's official file. It was kept by Smith in his van, and a copy was sent to Smith's counsel in Atlanta, at his request.

The sheriff was found in contempt of an order that was signed by a superior court judge on February 21, 1992. That order required the sheriff's office to turn over to the Georgia Bureau of Investigation (GBI) all statements of witnesses in the possession of any sheriff's office personnel, as well as any written or oral statements made by Graham while in custody at the Camden County jail and in the possession of any employee of the sheriff's office, including the sheriff. The order was delivered by agents of the GBI to the sheriff's office. Because the sheriff was out when GBI agents arrived to serve the order, it was handed to a deputy sheriff, who arranged for Graham's file to be copied and turned over. Graham's statement in issue, however, was not in the file and was not turned over to the GBI. GBI agents learned that such a statement existed, but they were unable to locate the statement even after executing in March 1992 a search warrant obtained in the course of an investigation into the use of inmate labor.

A citation for contempt was drafted and signed on April 9, 1992, and filed with the court on May 19, 1992. It is unclear exactly when Graham's statement was turned over to the State, but at some time in May 1992, when Smith learned that the citation for contempt had been filed or would be filed, he mailed the original statement to his counsel in Atlanta, who delivered it to the attorney general's office. The superior court judges in the Brunswick Judicial Circuit recused themselves, and the hearing on the contempt citation was held on June 19, 1992, before a superior court judge from another judicial circuit. The order was filed on that day, shortly before the hearing. The trial court found Smith in indirect criminal contempt of the Camden County Superior Court, and ordered him to pay a $500 fine.

1. The first question is whether Smith can be held in contempt of an order which was not filed until after he had complied with its terms. We find this order was enforceable despite not having been filed.

OCGA § 15-1-4(a)(3) provides that a court has the power "to issue attachments and inflict summary punishment for contempt of court [in] cases of ... [d]isobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts." OCGA § 9-11-58(b) provides that filing with the clerk constitutes entry of a judgment, and unless the court otherwise directs, a judgment is not effective "for any purpose" until this is done. The scope of OCGA § 9-11-58(b) appears to have been extended by implication beyond "judgments" to include orders of any kind. See, e.g., Bloodworth v. Thompson, 230 Ga. 628, 198 S.E.2d 293 (1973) (order dissolving injunction of foreclosure sale ineffective because signed but not filed with clerk); Milam v. Mojonnier Bros. Co., 135 Ga.App. 208, 217 S.E.2d 355 (1975) (order signed by judge but not filed with clerk insufficient to stop dismissal under five-year rule because it never became an order of the court). See generally 56 AmJur Motions, Rules, and Orders § 38 (general rule is that orders are not complete until entered). Ordinarily, then, only orders that have been "entered," i.e., filed, may be enforced pursuant to OCGA § 15-1-4(a)(3): "what the judge orally declares is no judgment until the same has been reduced to writing and entered as such. [Cits.]" Tyree v. Jackson, 226 Ga. 690, 694(2), 177 S.E.2d 160 (1970).

However, sheriffs are officers of the court. Lynd v. State, 262 Ga. 58, 64(10), 414 S.E.2d 5 (1992). The contempt power of the courts is broader in cases of "[m]isbehavior of any of the officers of the courts in their official transactions" pursuant to subsection (a)(2) of OCGA § 15-1-4:

If OCGA § 15-1-4(a)(2) is construed to apply only to the disobedience by an officer of the court to a written order this provision of our Code is rendered meaningless; it would be entirely duplicitous of the provisions of OCGA § 15-1-4(a)(3).... OCGA § 15-1-4(a)(2) is intended to impose upon officers of the courts engaged in their official transactions a higher duty to the court than is demanded of the broader group of individuals listed in OCGA § 15-1-4(a)(3) who are arguably subject to the contempt powers only for failure to comply with those commands of the court spread upon the record in written form. Surely the interrelationship between the court and its officers is of such a complex and on-going nature as to render impractical any requirement that the court must render into a writing spread upon the record of the court any direction to an officer as a prerequisite to compelling obedience to its commands. In re Irvin, 171 Ga.App. 794, 796(1), 321 S.E.2d 119 (1984), modified on other grounds 254 Ga. 251, 328 S.E.2d 215 (1985).

Although it certainly would have been preferable for the order to have been filed immediately, it cannot reasonably be maintained, as urged by Smith, that the order is for that reason unenforceable. If the court's contempt power under OCGA § 15-1-4(a)(2) extends to an oral order such as that held enforceable in Irvin, it necessarily also extends to an order such as the one in this case which, although not filed, was reduced to writing and delivered into the hands of sworn deputies of the officer of the court for service on the sheriff.

2. Any defense involving the insufficiency of service of process on Smith was clearly waived when Smith failed to raise this issue "at the time of pleading." OCGA § 9-11-12(b) and (h)(1)(B).

3. We find no merit in Smith's contention that he could not be held...