Fellman v. State

Oct 24, 1988
77636
Reporters:
, ,
Before:
Deen
Deen, Presiding Judge.

Daniel R. Fellman was convicted of various traffic offenses, including DUI, in the City Court of Griffin. He appealed his convictions to the Superior Court of ‍​‌‌‌‌​​​​​‌‌​​​​‌‌​‌‌​‌‌​‌​​​​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌​​‌‌​​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​‌‍Spalding County pursuant to the provisions of OCGA § 40-13-28. He and the city entered into a stipulation in which the city admitted that his conviction of driving on a suspended license should be reversed, and he admitted that he was properly convicted of three offenses. He also admitted that he was driving a motor vehicle while ‍​‌‌‌‌​​​​​‌‌​​​​‌‌​‌‌​‌‌​‌​​​​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌​​‌‌​​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​‌‍under the influence of alcohol, and it was stipulated that he was not under the influence of any other drug. He appealed, contending that he was protected from punishment under the exception contained in OCGA § 40-6-391 (b). The only issue to be resolved was whether OCGA § 40-6-391 (b) repealed OCGA § 40-6-391 (a) and provides a total defense where the drug involved ‍​‌‌‌‌​​​​​‌‌​​​​‌‌​‌‌​‌‌​‌​​​​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌​​‌‌​​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​‌‍is alcohol. The parties agreed to a bench trial on the appeal. The superior court affirmed appellant’s DUI conviction, and he filed a direct appeal with this court. Appellant has filed a motion to dismiss the appeal, contending that under OCGA § 5-6-35 (a) (1) and (b) Fellman was required to file an application for appeal with this ‍​‌‌‌‌​​​​​‌‌​​​​‌‌​‌‌​‌‌​‌​​​​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌​​‌‌​​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​‌‍court rather than a direct appeal. Held:

OCGA § 5-6-35 (a) (1) provides that “appeals to this court from decisions of the superior court reviewing decisions of lower courts ‘by certiorari or de novo proceedings’ are discretionary.” Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988). As the appeal to the superior court was a “de novo proceeding,” ‍​‌‌‌‌​​​​​‌‌​​​​‌‌​‌‌​‌‌​‌​​​​‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌​​‌‌​​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‌​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​‌‍under the holding in Anderson, we must dismiss the appeal for failure to comply with the provisions of OCGA § 5-6-35 as we have no jurisdiction over it.

Appeal dismissed.

Carley and Sognier, JJ., concur.