Wigley v. State, 52932
| Decision Date | 22 October 1976 |
| Docket Number | No. 52932,No. 3,52932,3 |
| Citation | 140 Ga.App. 145,230 S.E.2d 108 |
| Parties | B. L. WIGLEY v. The STATE |
| Court | Georgia Court of Appeals |
Dunaway & Perry, William J. Perry, Rockmart, for appellant.
Gammon & Anderson, Joseph N. Anderson, Cedartown, for appellee.
1. The defendant was tried and convicted under a three-count accusation charging him with the offenses of drunk driving on June 29, July 13 and November 16, 1975, respectively. Prior to trial the defendant orally moved to sever the various counts for trial, and the court overruled the motion. This was error. Where the counts have been joined solely on the ground that the offenses are of the same or similar character, the trial court has no discretion but to grant the motion. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752; Buckles v. State, 137 Ga.App. 802, 225 S.E.2d 61. This is not a mere matter of form, since, as Dingler points out, only thus may the fair rights of the defendant be protected. Our statute (Code, § 26-506) does not require motions to sever to be in writing, nor do the ABA Standards Relating to the Administration of Criminal Justice, on which the Dingler decision is based, have such a requirement. Rule 12(b)(5) of the Federal Rules of Criminal Procedure relating to pretrial motions for severance particularly specifies that they may be either written or oral at the discretion of the trial judge. The court here required counsel to dictate his motion into the record, and this sufficiently establishes its content. The erroneous denial of the motion requires the grant of a new trial.
2. The remaining enumeration of error is without merit. Shy v. State, 234 Ga. 816(1), 218 S.E.2d 599.
Judgment reversed.
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...246 Ga. 654, 272 S.E.2d 321 (1980), all of the offenses would have been admissible at the trial of the other. In Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108 (1976), this court held that under the holding in Dingler, supra, the trial court had no discretion but to grant the motion when ......
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...the same transaction and where they were joined solely on the ground they were of the same or similar character); Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108 (1976) (three counts of drunk driving which occurred in a five-month period should have been severed).5 157 Ga.App. 222, 276 S.E......
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...trials on the two accusations, and cites in support thereof Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975); Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108 (1976); Buckles v. State, 137 Ga.App. 802, 225 S.E.2d 61 (1976); and Code Ann. § In both Wigley and Buckles, this court, followi......
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