Hyde v. StateHyde v. State
- Reporters:
- , , ,
- Before:
- Carley
After a jury trial, appellant was found guilty of driving under the influence and of felony operation of a motor vehicle notwithstanding the revocation of his license as an habitual violator. He appeals frоm the judgments of conviction and sentences entered on the jury’s guilty verdicts.
1. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal as to the felony habitual violator charge.
“[I]t shall be unlawful for any person to operate any motor vehicle in this state after such person has
received notice
that his driver’s license has been revoked
as provided in subsection (b) of [
The date upon which the requisite notice was given to the habitual violator is relevant to whether his subsequent act of driving is punishable as a felony or a misdemeanor. A non-licensed habitual violator who drives within five years of notification of his status as such is punishable for a felony, whereas a non-licensed habitual violator who drives more than five years after the notification of his status as such is punishable for a misdеmeanor.
In the instant case, the State adduced sufficient evidence to authorize a finding that, in August of 1991, appellant drove a motor vehicle without a valid driver’s license. Accordingly, to demonstrate that this аct was punishable as a felony the State was further required to show that appellant had been notified of his habitual violator status within five years of August 1991. The State did not do so. The State’s evidence showed only thаt, pursuant to certified mail with return receipt requested, appellant had been notified of his habitual violator status in July of 1983. This evidence would authorize a finding that appellant was guilty of a misdemeanor violation of
The State did show that, in 1989 and again in 1990, the Department of Public Safety
issued
additional official declarations of appellant’s
renewed
status as an habitual violator. If the State had further shown that
notice
of these declarations had ever been
given
to appellant pursuant to any of the methods authorized by
The State urges that there is evidence that appellant had аctual *756 knowledge of his status as an habitual violator during the five years preceding August 1991. However, appellant’s knowledge of his mere status as an habitual violator is irrelevant. It is the official declaration of appellant’s status as an habitual violator that is the material issue. There is no evidence that appellant had actual knowledge that he had been redeclared an habitual violator at any point in time subsequent to July 1983. Compare Waits v. State, 194 Ga. App. 284 (390 SE2d 296) (1990); Cooper v. State, 156 Ga. App. 108 (274 SE2d 112) (1980).
Likewise, the State’s reliance upon
2. Appellant enumerates as error the admission of evidence of his prior convictions in 1989 for driving under the influence, driving notwithstanding the revocation of his license as an habitual violator, and attempting to elude a police officer.
The State’s evidence in the instant case showed the following: A motorist was being followed too closely by another vehicle and, on two occasions, was actually bumped by the following vehicle. An officer on patrol passed the two vehicles and noted that only the distance of one foot appeared to sеparate them. The officer decided to investigate and turned his patrol car around, but did not activate the. blue lights or siren. As the officer was approaching the two vehicles, the driver of the lead vеhicle pulled to the side of the road and motioned the officer to do likewise. Responding to the motioning of the driver of the lead vehicle, the officer pulled to the side of the road, but the following vеhicle continued on. When the driver of the lead vehicle told the officer that he had been bumped twice, the officer began his search for the following vehicle and radioed for assistance. *757 Within a matter of minutes, the vehicle was discovered being driven away from appellant’s wife’s place of employment. At that time, appellant’s wife was driving and appellant, who was intoxicated, occupied the passenger seat. Appellant denied that he had previously driven the vehicle. Despite the fact that the officer positively identified appellant as the previous driver of the following car and had seen no other occupant, appellant contended that he had been driven to his wife’s place of employment by a friend.
The facts underlying the 1989 convictions are similar, but not identicаl. In 1989, appellant, while driving in a state of intoxication and while an habitual violator, had actually fled from a pursuing officer to avoid arrest. In the instant case, he had not. However, the evidence would nevеrtheless authorize a finding that appellant had attempted to avoid arrest in the instant case. A jury would be authorized to find that appellant, with actual knowledge that he had struck another vehicle twice and that a police officer had stopped to investigate, had continued to drive in violation of
3. During the course of the trial, appellant made a general request that, if the trial court was “going to allow [the] evidence [of thе 1989 crimes] to go into the record,” the jury be instructed as to the limited admissibility of that evidence. The trial court responded that it would give such limiting instructions at the conclusion of the trial. Appellant acquiesced in this ruling аnd made no specific request for contemporaneous limiting instructions. At the conclusion of the trial, the trial court gave limiting instructions in its general jury charge. On appeal, appellant does not suggest thаt the limiting instructions that were given were not full, fair and complete. Instead, he enumerates as error-the failure of the trial court to have given additional contemporaneous limiting instructions.
“It is well recognizеd that when evidence is admitted for one pur *758 pose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]” (Emphasis in original.) Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). Appellant made only a general request for limiting instructions, which the trial court obviously did not construe as a specific request for contemporaneous limiting instructions. When the trial court indicated that it would, in fact, give such instructions in its subsequent general chargе, appellant did nothing to indicate that the timing, as well as the giving, of such instructions was a material consideration. Accordingly, for all intents and purposes, the trial court complied with the only request that was evеr made by appellant. In response to appellant’s request, the trial court gave limiting instructions. Under these circumstances, there was no error in the trial court’s failure to have given additional contemporaneous limiting instructions. “He who acquiesces at trial is not permitted on appeal to predicate error thereupon. [Cit.]” Causey v. State, 192 Ga. App. 294, 296 (1) (384 SE2d 674) (1989).
4. The judgment of conviction is affirmed as to driving under the influence. The erroneous failure to grant appellant’s directed verdict of acquittal as to a felony violation of
Judgment affirmed in part and judgment vacated and case remanded with direction in part.
Pope and Johnson, JJ., concur.