*1 claims). equitable analogous bar of legislature put very Our short fuse on election contest cases. requires contesting cases election OCGA 21-2-524 results to be days brought five of certification of the returns. This short within legislature’s strong time reflects the desire to avoid election uncertainty prejudice and the which can confusion come its Certainly, wake. the swift resolution of election contests is vital for operation government. the smooth delay days. significant
Here the was 42 This is because the tax only days went into effect after the SPLOST was certified. In the Department preparations meantime, the of Revenue had to make proceeds. plaintiffs collect the tax and remit the the time brought department already expended suit, the revenue had a con- prepare siderable amount of resources to for the SPLOST. justification plaintiffs’ delay; The trial court saw no for and we delay resulting prejudice,2 cannot find one. Given the compelled and the we are agree plaintiffs’ with the trial court that claim is barred by the doctrine of laches.
Case No. S03X0067 ruling appeal, In view of in main our the issues raised in the cross-appeal are moot. Judgment appeal S03A0065; in Case No. dismissed affirmed
Case No. S03X0067. All the Justices concur.
Decided March Reconsideration denied March Eugenе Highsmith, appellants. Gary Frey Moore, III, McLemore, Jr.,
W. Monroe L. Gilbert C. Attorney Spencer, Baker, General, E. Thurbert Alison P. E. Rit- Stefan Attorneys appellees. ter, General, Assistant v. THE S02A1313. GENG STATE. Thompson, Justice. Geng, appeals speeding, challenging Jr.,
John his conviction for constitutionality of the statutes which the trial court relied prejudice gone to defendants has increased now that the SPLOST has into improper, effect. If tax were to be declared thousands of refund claims would flood the department. revenue Geng request denying was entitled to for a trial. Because his by jury with Art. Sec. Par. in accordance judgment Constitution, we reverse the below. pоlice stopped by City and was of Atlanta officer speeding. The citation a uniform traffic citation for
issued Georgia’s violating Vehicle OCGA 40-6-181 of Motor with *2 mph driving with a his vehicle 80 an area Code in that he was posted speed mph. constitutes a misdemeanor limit of 55 This offense charge Geng appear was ordered to to answer the under state law. proper City written demand for the Court of Atlanta. He filed a His demand was denied and his case was trans- trial in that court. dispo- City the Court of Atlanta traffic violations bureau for ferred to asserting depriva- Geng reconsideration, moved for that the sition. by jury Georgia I, I, Par. XI of the tion of trial violаted Art. Sec. equal protection Constitution, and denied him of the law under both Georgia Constitutions; reconsideration was denied. the federal and Geng judge was tried before a the traffic violations speeding, sentencing guilty and was fined order found $315. appeal specified in the record on also default of contained imposed. payment, incarceration is to such a six-month be violations bureau. Traffic was established in the Court of The traffic bureau authority seq. pursuant § et Under Atlanta, of OCGA 40-13-50 judges having juris- scheme, of court of state may provide ordinances, diction over the violation of traffic laws or disposition of a traffic viоlations bureau for the establishment offenses, a list is to be determined those of certain traffic of which provided charge judges. § It further that a OCGA 40-13-50. brought “classified as a traffic in the traffic violations bureau is to be misdemeanor,” and shall not be considered as a violation “[w]here violation, demands a trial on a traffic it shall be a defendant judge of the court which established the traffic viola- tried before Finally, person § if a traffic OCGA 40-13-60. cited for tions bureau.” appear ordered, in court as violation under the statute fails to jurisdiction and the case is forwarded traffic violations bureau loses to the issued prosecuting attorney of thе court who shall have an accusation person, against thereafter “handled and the case will be Geng’s § demand for a as all other misdemeanors.” OCGA 40-13-62. language of OCGA 40-13-60. trial was denied based on right byjury. to trial 2. Constitutional Paragraph Constitution of
Article Section of the guarantees in a criminal case the “inviolate” а defendant impartial jury.” “public speedy trial disposed an offender whose case is OCGA 40-13-60 restricts judge.1 Geng in the traffic violations bureau to trial before a was ini- tially charged speeding with the misdemeanor offense of and those charges were not transferred to the traffic violations bureau until Geng’s after demand for а trial was filed. until the trans- proceeded speeding fer, the case aas routine misdemeanor offense timely and the trial attached when filed his writ- (2) (a) Gregg State, ten demand.2 See 253 Ga. 729) (2001) (in jurisdiction without a traffic violations misdemeanor). speeding offense of is treated as a According sentencing order, to the faced the risk of six pay months incarceration should he fail to the ordered fine. The stat- requires prosecuting attorney ute also referral to the for issuance of prosecution an accusation and as a misdemeanor offense should one appear charges.3 fail to to answer the OCGA 40-13-62. consequеnce It is of no that OCGA 40-13-60 characterizes the offense as a “traffic “misdemeanor,” violation” rather than a when in potential prosecution fact the exists for as a misdemeanor under the statute. The offense of law, is misdemeanor under state and we do not believe the constitutional trial can be simply by allowing judges eradicated Court of Atlanta give designation. generally it another Clark v. *3 (277 738) (1981) (a App. required 486 SE2d trial is for violation law). county of a ordinance which is also misdemeanor under state agree general statutory We with the State that the scheme creat- (OCGA ing implementing and traffic violations bureaus 40-13-50 et seq.) judicial system by аllowing summary disposition benefits our of freeing up certain offenses thus resources in an overcrowded court system, by reducing severity and also benefits traffic violators of their Nonetheless, offenses. we hold that OCGA 40-13-60 mani- festly infringes on Art. Sec. Par. XI of the Constitution, subject potential insofar as it denies a criminal defendant who is tо punishment by jury. ruling as a misdemeanant the to trial Our today extends to those offenses which are as misde- encompass meanors under Code; our State it does not crimes which solely municipal are violations of local or ordinances. The distinction (69 774) (1952). in Gibson, made Giles v. SE2d See 1 ambiguous We note that OCGA 40-13-60 is somewhat specifically in that it does not by jury. argument, appellant exclude trial At oral offered documentation that another granted defendant in the by Atlanta traffic violations bureau was another judge. However, purposes appeal, of this we will assume that the statute entitles a viola judge only. tor to trial before a 2 jurisdiction Court of Atlanta is a state court of limited and is authorized to pursuant 1996, p. conduct seq. trials to Ga. Laws 627 et 3 It is anomalous indeed failing that could insure his ato appear charges. in the traffic violations bureau to answer the
431 (1981); App. Evans v. SE2d State, 160 Ga. Dollar v. also City Compare SE2d Tifton, (where county supra as of a ordinanсe offense is a violation Clark, jurisdic- concurrent law there is under state well as a misdemeanor tion). say scheme that the remainder That is not to invalidated. must be part part valid, and
If is in constitutional the statute uphold it in . . . the courts will and invalid unconstitutional part, reasonably corre- certain that to do so would when it is legisla- purpose spond main intent and which with the sought accomplish enactment, if, after the its ture unconstitutional enough part stricken, there remains accomplish purpose. (7) (227 761) (1976). Ga., 237 Ga. SE2d
Rich v. State of 94) (1979) Maples City of Varnell, Ga. also (“legislative rather than declare the Act intent should be effectuated eliminating inоperative”). the lan- not a whole We do believe as seemingly guage restricts a traffic viola- 40-13-60 which OCGA general intent and overall undermine the tor to a bench trial would summarily may elect to have his case this Act. An offender scheme of disposed proper bureau; one who files a traffic violations but guaranteed under our constitution. trial is demand for portion § 40-13-60 of OCGA conclude that the offensive We therefore (OCGA § may et 40-13-50 of the Act severed, and remainder be by Geng. urged any seq.) void for of the reasons as a whole is not Geng’s remaining grounds reversal. not address 3. We need except Benham, Judgment concur, Car- All the Justices reversеd. ley Hines, JJ., who dissent. dissenting. Justice, Hines, essentially majority opinion statute involved rewrites the As the respectfully designed unconstitutional, I dis- to render it
in a manner sent. *4 principle if construction fundamental of “It is a way
possible it consti- as to find be construed such a statute will (2) (400 Harrison, 866, 869 SE2d 260 Ga. tutional.” Garner v. (1991). spe- majority opinion ignores the case, however, the In this solely apparently language tо reach statute, and does so cific is unconstitutional. that the statute the conclusion recog- majority opinion failure to in the is its The flaw essential establishing scheme, the traffic violations bureau nize — category Assembly crime a traffic a new of established General — jurisdiction violation within the of a traffic violatiоns bureau felony, Assembly is not a and is not a misdemeanor. The General has specifically stated that such an offense is “characterized and classi- fied as a traffic violation and shall not be considered as a misde- previously § meanor.” OCGA 40-13-60. This Court has held that such felony, a traffic violation is neither a nor a misdemeanor. Duncan v. 274) (1974). Ricketts, 89, 232 Ga. 91-92 SE2d See also Keller v. 714) (1987). App. State, violations 183 Ga. SE2d inAnd the traffic jury, judge trial is not before a but before a alone. Assembly’s power OCGA 40-13-60. It within establish the General category provide crime, of and to for trial without a jury in this instance. majority finding is incorrect in I, I, that Article Section Par
agraph guarantees XI оf the Constitution of 1983 provision proclaims right in this instance. That that the to a provision apply inviolate,” “shall remain but the does not in this upholds Rather, case. to a trial that existed under adoption common law at the time of the State’s of the first Constitu (1) (498 Kelley Dept. tion. Resources, Human SE2d 741) (1998). Mayor Accord Hill v. &c. Dalton, (1884) ordinance). (concerning city Speeding criminal violation of a prior was not a known offense in the common law to our first Consti tution.
Although majority states that is a misdemeanor, Paragraph protects I, I, that Article Section simple trial when one is with misdemeanor, fact is that charge, did not face a misdemeanor and hе was not convicted a misdemeanor. Once an offense is in the traffic violations bureau’s jurisdiction, it is “characterized and classified as a traffic violation and shall not be considered as misdemeanor.” OCGA 40-13-60. Compare Clark v. 157 Ga. As majority juris- notes, it is after the traffic violations bureau loses prosecuting attorney, diсtion that the case is forwarded to the filed, accusation is and the case is treated as a misde- thereafter jurisdiction meanor. OCGA 40-13-62. But within the of the traffic the violation is not a I, misdemeanor. Article Paragraph protection I, Section XI’s “inviolate” of felony trial in apply cases of State misdemeanor and crimes does not jurisdiction to violations under the of the traffic violations bureau. provision OCGA 40-13-60’s that the defendant’s trial is before a judge Paragraph alone does not violate Article Section XI of the 1983 Constitution. require Further, the Constitution of the United States does not
jury trial in this instance either. The Sixth Amendment to the Con-
providеs
prosecu-
stitution of the United States
that: “In all criminal
*5
enjoy
speedy
public trial,
tions, the
shall
the
to a
accused
by
jury.
long
“[i]t
impartial
However,
. . .”
has
been settled that
an
petty
subject
category
which is not
to
‘there is a
crimes or offenses
provision.’
[Cits.]”
the Sixth Amendment
Blanton
Vegas,
538,
1289,
LE2d
489 U. S.
SC
North Las
(1989).
presumed
carrying
that
a maximum sentence of
It is
offenses
petty offenses,
543, and a maximum fine of
six months are
id. at
nonpetty
render
offense
$1,000 is well under the level that would
the
trigger
Smith v.
trial. Id. at 544-545. See also
726) (2002) (maximum punish-
Greene, 274 Ga.
offense).
days
petty
fine and
of 60
constituted
ment of
sentence
$500
determining
petty offense,
In
a
it does
whether
offense is
not
law a
matter whether the offense is a violation of a State
or violation
municipal
Louisiana,
of a
SC
ordinance. See Duncan v.
Contrary majority’s characterization, to the it is not the traffic the in Court of Atlanta that have determined that offenses That decision traffic violations bureaus will not be misdemeanors. Assembly establishing the was made the General majority gives decision, deference to that but sub- scheme. Yet the stitutes its own determinatiоn no speeding “[t]he
that offense of is a doing majority gives so, In misdemeanor under state law. . . .” (and all convictions for other traffic violations within traffic bureaus) the status of misdemeanor. Whether defendant plead guilty or forfeit his in a traffic violations elects to bond superior majority court, him a or is tried before a labеls regardless Assembly’s misdemeanant, mandate to the of the General contrary. majority purports the constitutional invalid-
The also confine ity provides portion that trials in to that of OCGA 40-13-60 which judge only. will But the traffic violations bureaus cases majority be before a statutory pronouncement that an has rendered void the the traffic violations is “characterized and clas- offense within bureau sified as a traffic violation and shall not be considered as misde- provision question Voiding meanor.” OCGA 40-13-60. calls into in a traffic violations the statute’s declaration bureau are not to be recorded on the misdemeanor docket and traffic offenses no attorney, prosecuting taken or maintained accusation to be post appear. fails to unless the defendant does not bond or OCGA 40-13-61. majority bases its outcome on the contention “sentencing specified $315,
fined and that the order” that he would subject pay to a six-month of incarceration if hе failed to be that fine. But the majority
“sentencing order” to which the refers Geng’s name; does not bear all “name” fields on the form have been any might left blank. Nor does it show that case number that indicate pertains Geng. Only,” states “For Clerk’s The form also Use nothing prece- and there is dence over the form that it on to indicate should take imposed by pro- trial, sentence court. At the court [the] $315, nounced that the fine would be and ule of “in accordance with sched- *6 jail specifically fines,” noted that there was “no sentence imposed in connection with this fine in accordance with the schedule going . . .” fines. The schedule of fines shows a fine for 21 to $315 says speed nothing limit; 30 miles over the about incarceration. charge speed- The ing sentence faced fine. $315 merely petty
in the offense, traffic violations bureau was requirement there was no constitutional have a available him. joins
I am authorized to state that Justice Benham in this dis- sent. Decided March April
Reconsideration denied appellant. Patterson, Jackie G.
Joseph Drolet, Solicitor-General, Diamandis, J. Katherine Assis- appellee. Solicitor-General, tant Zipperman,
Davis, Lotito, Lotito, Kirschenbaum & Nicholas A. amicus curiae.
S02A1515, THOMASON; S02X1516. HEAD v. and vice versa.
(578 SE2d Justice. Benham, Gary burglar Chad Thomason is a who shot and killed the home- burglarizing owner who came him while he was the victim’s burglary, In trial, home. murder, bench he was convicted of malice possessiоn of a firearm a felon, convicted and was sentenced to death. After affirmance this Court of that conviction and sen- (Thomason 861) (1997)), tence filed a he petition corpus. petition for a writ of habeas His was denied on — grounds all save one he was not afforded the effective assis- during sentencing phase tance of counsel of his bench trial investigate background because trial counsel failed to Thomason’s