Walton v. State

• Decision Date: 26 September 1990
• Docket Number: No. A90A1363,A90A1363
• Citation: 197 Ga.App. 263,398 S.E.2d 221
• Parties: WALTON v. The STATE.
• Court: Georgia Court of Appeals

Page 221

398 S.E.2d 221

197 Ga.App. 263

WALTON v. The STATE.

No. A90A1363.

Court of Appeals of Georgia.

Sept. 26, 1990.

Rehearing Denied Oct. 15, 1990.

Certiorari Granted Jan. 8, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Zebulon, Bentley C. Adams III, Thomaston, for appellant.

W. Fletcher Sams, Dist. Atty., J. David Fowler, Asst. Dist. Atty., for appellee.

CARLEY, Chief Judge.

Appellant was convicted in the probate court of driving under the influence of alcohol and, pursuant to OCGA § 40-13-28, appellant appealed to the superior court. The superior court determined that the probate court was without authority to try appellant because appellant's written waiver of trial by jury had not been secured. See OCGA § 40-13-23(a); Rustin v. State, 192 Ga.App. 775, 776(2), 386 S.E.2d 535 (1989). On this basis, the superior court remanded the proceedings to the probate court with direction that the probate court recall the case and either retry appellant if he waived trial by jury in writing, or bind appellant over for jury trial in the superior court if he did not. Appellant appeals from this order of the superior court.

1. The appeal that is created by OCGA § 40-13-28 is a de novo proceeding. Anderson v. City of Alpharetta, 187 Ga.App. 148, 369 S.E.2d 521 (1988). In such a proceeding, the superior court, following its own applicable procedures, undertakes to address only those issues which the lower court was otherwise authorized to address. Peavey v. Crawford, 182 Ga. 782(1), 187 S.E. 13 (1936). Thus, if the record had demonstrated that the probate court was otherwise authorized to determine appellant's guilt or innocence, the superior court, exercising the comparable authority of the probate court, but following the applicable procedure of OCGA § 40-13-28, would have been authorized to determine appellant's guilt or innocence by conducting a de novo review of the certified record of the hearing that had been conducted by the probate court. However, the record demonstrated that the probate court was not otherwise authorized to determine appellant's guilt or innocence because there was no written waiver of trial by jury. Accordingly, the superior court correctly held that, on the record before it, it likewise had no comparable authority to determine appellant's guilt or innocence through the procedure mandated by OCGA § 40-13-28.

The question remains, however, whether the superior court correctly remanded the case to the probate court. In a de novo appellate proceeding before the superior court, the "case must be tried anew as if no trial had been had. [Cits.] It is not the province of the superior court on such an appeal to review and affirm or reverse the rulings of the [probate court], but to try the issues anew and pass original judgments on the questions involved as if there had been no previous trial." (Emphasis supplied.) Hall v. First Nat. Bank of Atlanta, 85 Ga.App. 498(3), 69 S.E.2d 679 (1952). " '[T]he case on appeal from the [probate court] brings the whole case up for a new hearing 'but with the same jurisdiction as was possessed by the [probate court]. [Cits.]" (Emphasis supplied.) Knowles v Knowles, 125 Ga.App. 642, 645(1), 188 S.E.2d 800 (1972). It follows that the superior court "erred in remanding the proceedings to the [probate court]. [Cit.]" Knowles v. Knowles, supra at 645(1), 188 S.E.2d 800. The whole case was before the superior court and, exercising the comparable authority of the...