425 S.E.2d 343 | Ga. Ct. App. | 1992
Diane Elizabeth Harmon, a/k/a Diane Elizabeth Lane, appeals her judgment of conviction of DUI and sentence. Her sole enumeration of error is that the trial court erred in granting the State’s “ex post facto” request to charge no. 5, which provides: “If there was at that time an alcohol concentration of .08 grams or more, it shall be inferred the person was under the influence of alcohol.” Appellant argues this charge violates the ex post facto prohibitions of both the Constitutions of Georgia and the United States.
Appellant entered a plea of nolo contendere reserving the right to appeal the trial court’s ruling regarding the requested charge. Held:
Assuming without deciding that the issue whether the proposed charge violated the ex post facto provisions of the United States Constitution was adequately raised and a ruling obtained thereon at trial, we still are unable to reach the error as enumerated on appeal.
Appellant’s sole enumeration of error is limited to a claim of error by the trial court’s “decision to charge appellee’s ex post facto request to charge no. 5.” We will interpret this enumeration to include a claim that charge no. 5, as requested, would result in an unconstitutional application of OCGA § 40-6-392 so as to violate the ex post facto provisions of the United States Constitution. However, the record when examined in its entirety reveals that, although the trial court stated on the record that it was ruling “on the motion for request of charge with a motion in limine . . . and from the defense against that request for charge and against the State mentioning .08 in its argument,” it did not grant the State’s charge request and did not rule that it would instruct the jury thereon as enumerated in the error before us. Rather, the trial court recognized that the State’s pro
Accordingly, we cannot and do not address in this appeal whether the charge that the trial court actually was prepared to give would have deprived appellant of a defense previously available or would have resulted in a lessening of the burden of proof in a manner to constitute an ex post facto violation. See generally Collins v. Youngblood, 497 U. S. 37 (110 SC 2715, 111 LE2d 30); compare De Woody v. Superior Court, 87 Cal. Rptr. 210 (CA CA).
Based on the holdings above, we will not reverse the judgment of conviction resulting from acceptance of the conditional nolo contendere plea.
Judgment affirmed.