Chambers v. StateChambers v. State
- Reporters:
- , ,
- Before:
- Birdsong
Dоnovan Chambers appeals his judgment of conviction of one count, respectively, of armed robbery, possession of a firearm during commission of a felony, driving without a license, and possession of a firearm by a convicted felon, and the sentence.
Appellant filed a motion to suppress, a hearing was conducted, and on August 22, 1989, the trial court granted the suppression motion. The State appealed, and we reversed the trial court’s order. State v. Chambers, 194 Ga. App. 609 (391 SE2d 657). Allegedly over objection of counsel, on March 5, 1990, the trial court called this case for trial, and the trial began that day. The jury returned its verdict on March 7, 1990, and sentencing рroceedings were held on March 20, 1990. This court issued its remittitur on March 20, 1990, although its opinion in State v. Chambers, supra, had issued earliеr on February 9, 1990, and motion for rehearing had been denied on February 22, 1990. The remittitur was received and filed in the office of the clerk of the superior court on March 22, 1990. Held:
1. Appellant, citing
Nave v. State,
171 Ga. App. 165 (3) (318 SE2d 753) and
Talley v. City Tank Corp.,
158 Ga. App. 130 (1) (279 SE2d 264), asserts that at the time of trial, “the trial court did not have jurisdiction of this matter” as the remittitur of this court had not been filed with the clerk of the lower court until aftеr the trial was completed. See generally,
We agree that at the time this trial was held, the superior сourt technically lacked the requisite jurisdiction.
Hubbard v. McCrea,
103 Ga. 680 (1) (30 SE 628). Any proceeding so conducted “is coram non judice,” and the resulting want of jurisdiction cannot be waived by conduct of counsel so as to give effect to thе void judgment
(Lyon v. Lyon,
103 Ga. 747, 751 (2) (30 SE 575)). However, upon subsequent filing of the remittitur in the office of the clerk of the superior court, the сourt would reacquire jurisdiction of the case.
Marsh v. Way,
255 Ga. 284 (1) (336 SE2d 795);
Hagan v. Robert & Co. Assoc.,
222 Ga. 469 (150 SE2d 663). “The filing of a remittitur ... in the office of the clerk of a trial сourt immediately reinvests it with jurisdiction
for all purposes
over the case to which such remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon its minutes.” (Emphasis supplied.)
Knox v. State,
113 Ga. 929 (39 SE 330). “If, where a nеw trial has been granted . . . the remittitur is not so entered before the new trial is had, it is proper to
2. Appellant asserts the trial court erred by granting the State’s motion to present evidence of similar transactions and by allowing evidence of appellant’s prior conviction fоr three counts of armed robbery to be introduced at trial. Pretermitting the question of whether appellant’s prior felony conviction could be admitted as evidence of a similar crime (see generally Brown v. State, 197 Ga. App. 155 (398 SE2d 34)) is the issue whether any other legitimate basis existed for the introduction of the prior conviction evidencе at trial. If evidence qualifies for admission under any legitimate evidentiary theory, it should be admitted even if it would nоt so qualify under some other evidentiary rule. Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298).
Appellant had been indicted on several counts, including that of possession of a firearm by a convicted felon in that he had been convicted in 1987 of the felony оf armed robbery in the State of Florida. “Evidence of prior felony convictions may be admitted in those cases where [as here] the prior felony convictions are alleged in the indictment, as provided by lаw.”
3. Appellant asserts the trial court erred by allowing into evidence certain items seized as the result of an illegal search and seizure contrary to the trial court’s order suppressing such evidence аnd prior
Judgment vacated and remanded with direction.
Pope and Cooper, JJ., concur.