Any defendant convicted under this article shall have the right of appeal to the superior court. The provisions of Code Sections 5-3-29 and 5-3-30 shall not apply to appeals under this Code section. Otherwise, the appeal shall be entered as appeals are entered from the probate court to the superior court, provided that the defendant shall be entitled to bail and shall be released from custody upon giving the bond as is provided for appearances in criminal cases in the courts of this state. Such bond shall have the same conditions as appearance bonds in criminal cases. The appeal to the superior court shall not be a de novo investigation before a jury but shall be on the record of the hearing as certified by the judge of that court who presided at the hearing below.
(Ga. L. 1937-38, Ex. Sess., p. 558, § 10; Ga. L. 1986, p. 982, § 15.)
Cross references.- Appeals to superior courts generally, T. 5, C. 3.
Editor's notes.- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.
JUDICIAL DECISIONS
Construction of section.
- Language of O.C.G.A. § 40-13-28 cannot be read in isolation so as to support a right of direct appeal regardless of the type of conviction but must instead be read in the context of the entire chapter (see O.C.G.A. Ch. 13, T. 40), which deals only with the trial of traffic offenses committed on public roads. City of Adairsville v. Barton, 159 Ga. App. 810, 285 S.E.2d 581 (1981).
Construing O.C.G.A. §§ 5-6-35(a)(1) and40-13-28 according to their real intent and meaning and not so strictly as to defeat the legislative purpose, the General Assembly did not intend to remove traffic appeals under § 40-13-28 from the discretionary appeals procedures. Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).
Any appeal from a superior court review under O.C.G.A. § 40-13-28 of any lower court, except the probate court, shall be under O.C.G.A. § 5-6-35(a); however, an appeal from the superior court review under § 40-13-28 of a traffic case from the probate court shall be by direct appeal under O.C.G.A. § 5-6-34(a)(1). Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998).
Construction of 1986 amendment.
- The 1986 amendment to O.C.G.A. § 40-13-28 that changed the scope of review in the superior court from a de novo investigation to a review of the record was not also intended to change the method of appeal from the superior court in such cases from discretionary appeals under O.C.G.A. § 5-6-35(a)(1) to direct appeals under O.C.G.A. § 5-6-34(a). Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).
Scope of review.
- In enacting O.C.G.A. § 40-13-28, the General Assembly provided for a right of appeal "on the record" to the superior court. Thus, the mandate of the superior courts is to review asserted errors of law in the proceedings below under general appellate principles. The appellant may not raise issues not litigated in the court below, but the appellant is entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that the evidence supports the conviction. Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991), cert. denied, 502 U.S. 982, 112 S. Ct. 587, 116 L. Ed. 2d 611 (1991).
O.C.G.A. § 40-13-28 applies only to probate courts and municipal courts and does not have the broad scope to apply to appeals from recorder's court. Zornes v. State, 262 Ga. 757, 426 S.E.2d 355 (1993).
This section is procedural law.
- Although O.C.G.A. § 40-13-28 certainly affects the assertion of substantive rights, the statute nonetheless falls within the category of a procedural law since the rule is that there are no vested rights in any course of procedure. Holloman v. State, 203 Ga. App. 476, 416 S.E.2d 839, cert. denied, 203 Ga. App. 906, 416 S.E.2d 839 (1992).
Appeal to the superior court is not a "de novo proceeding." If the conviction is properly supported by the evidence, the conviction would stand; if not, an acquittal would be required. The superior court would not, however, make an independent finding of guilt or innocence based on the evidence submitted, as would be done were the appeal, in fact, de novo. Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991), cert. denied, 502 U.S. 982, 112 S. Ct. 587, 116 L. Ed. 2d 611 (1991).
Once it is waived in the probate court, the right to a jury trial may not be raised for the first time on appeal to the superior court, or to the appellate court. Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991), cert. denied, 502 U.S. 982, 112 S. Ct. 587, 116 L. Ed. 2d 611 (1991).
Defendant not entitled to de novo review in superior court.
- After the defendant was convicted in probate court of DUI and appealed to the superior court, the defendant was not entitled to a de novo review in the superior court, nor was the defendant entitled to another opportunity to decide whether the defendant wished to be tried in the probate court. Holloman v. State, 203 Ga. App. 476, 416 S.E.2d 839, cert. denied, 203 Ga. App. 906, 416 S.E.2d 839 (1992).
Defendant was not entitled to a trial de novo based on the defendant's reliance upon a construction of O.C.G.A. § 40-13-28 that was disapproved in a later case. Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992).
Appeal procedures take precedence over any conflicting rules of procedure contained in the city charter, both because this statute is the latest expression of the General Assembly on the subject and also by reason of the general provision in the Georgia Constitution. Giles v. City of Locust Grove, 203 Ga. App. 164, 416 S.E.2d 758, cert. denied, 203 Ga. App. 906, 416 S.E.2d 758 (1992).
Review of recorder's court decisions.
- Proper method for obtaining review of a decision of a recorder's court is either by direct appeal to the superior court, in the case of traffic violations, or by application for certiorari to the superior court. Franklin v. Recorder's Court, 174 Ga. App. 498, 330 S.E.2d 429 (1985).
No direct appeal from county recorder's court.
- O.C.G.A. § 40-13-28 makes no mention of county recorder's courts and therefore a direct appeal is not provided from the decisions of such a court. Henson v. DeKalb County, 158 Ga. App. 348, 280 S.E.2d 393 (1981).
Discretionary appeal to appellate court.
- Appeal that is created by O.C.G.A. § 40-13-28 is a "de novo proceeding," whereby the superior court reviews the certified record below and makes a new determination as to guilt or innocence. A further appeal to the Court of Appeals must comply with the discretionary appeal provisions of O.C.G.A. § 5-6-35. Anderson v. City of Alpharetta, 187 Ga. App. 148, 369 S.E.2d 521 (1988).
Only convicted defendants may appeal.
- O.C.G.A. § 40-13-28 conveys the right of appeal to the Superior Court only to a convicted defendant. Sears v. State, 196 Ga. App. 207, 396 S.E.2d 1 (1990).
De novo review before judge who is a lawyer.
- Record devoid of any evidence that the probate court judge was not a lawyer failed to prove that the defendant should be accorded the right to a de novo review of the defendant's conviction before a judge who was a lawyer. Pippins v. State, 204 Ga. App. 318, 419 S.E.2d 28 (1992).
Probate court's summary of the evidence could serve as the basis for a new determination of guilt or innocence when the Court of Appeals, in a previous appeal, did not reject the probate court's summary of the evidence as insufficient but merely held that if a transcript of the evidence had been made and relied upon by the superior court, the transcript should be included in the record on appeal. Walker v. State, 199 Ga. App. 519, 405 S.E.2d 322, cert. denied, 199 Ga. App. 907, 405 S.E.2d 322 (1991).
Insufficient record.
- In a de novo proceeding, the superior court, following the court's own applicable procedures, undertakes to address only those issues which the lower court was otherwise authorized to address. When the superior court did not have a sufficient record to review the probate court's denial of the defendant's motion to dismiss and plea in bar, nothing remained for the Court of Appeals to review. Eppinger v. State, 198 Ga. App. 889, 403 S.E.2d 829, cert. denied, 198 Ga. App. 897, 403 S.E.2d 829 (1991).
Failure to accord defendant proper de novo review.
- Superior court, which affirmed the defendant's probate court conviction for speeding and driving under the influence after presuming that the verdict of the probate court was correct since there was no transcript reflecting evidence to the contrary, did not accord the defendant the de novo review to which the defendant was entitled. Holloman v. State, 199 Ga. App. 230, 404 S.E.2d 651 (1991).
Denial of de novo review.
- Defendant's contention that the defendant's due process rights were violated because the defendant was denied a de novo review of the defendant's conviction returned by a non-lawyer judge in the probate court failed since the procedure in Georgia provides for a review of the proceedings held before a probate judge. Walker v. State, 204 Ga. App. 559, 420 S.E.2d 17, cert. denied, 204 Ga. App. 922, 420 S.E.2d 17 (1992).
Very existence of the procedure to recreate the events of an unrecorded trial pursuant to O.C.G.A. § 5-6-41(g) was sufficient to rebut the defendant's unsubstantiated allegations that O.C.G.A. § 40-13-28 deprived the defendant of meaningful review of the defendant's convictions. Lyons v. State, 239 Ga. App. 325, 521 S.E.2d 232 (1999).
Denial of mandatory review.
- When the appellant did not receive the review mandated by O.C.G.A. § 40-13-28 it was necessary that the dismissal of appellant's appeal of a conviction in municipal court be reversed and the case remanded for further proceedings. Lankford v. City of Marietta, 261 Ga. 602, 409 S.E.2d 515 (1991).
Cited in Newmans v. State, 65 Ga. App. 288, 16 S.E.2d 87 (1941); Gilbert v. State, 261 Ga. 425, 405 S.E.2d 498 (1991); State v. Rigdon, 284 Ga. App. 785, 645 S.E.2d 17 (2007).
OPINIONS OF THE ATTORNEY GENERAL
Incarceration pending appeal.
- O.C.G.A. § 40-13-28 requires that a misdemeanor traffic defendant who has been convicted in the probate court and who wishes to appeal to the superior court is to be remanded to the custody of the sheriff pending the posting of an appellate bond only if the defendant has been sentenced to a term of imprisonment. 1989 Op. Att'y Gen. No. U89-30.
RESEARCH REFERENCES
Am. Jur. 2d.
- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 23, 127, 139, 140, 148 et seq., 160 et seq., 174, 218.