Maxwell v. State
188 Ga. App. 862
Ga. Ct. App.
1988
Check Treatment

*1 compliance notice re- with verdict as to for a directed (d) previously quirements discussed, As § 33-34-45 moot. of OCGA statutory provision, compliance regardless that of the insurer’s benefits recover no-fault entitled to the insureds were nevertheless because the trial correctly a noncancellation held that policy Dupree’s failure of the insurer’s as the result automobile Ms. provision strictly comply of former notice the additional (a) (1). § OCGA 33-34-10 correctly granted the insurer’s liability statutory penalties, for as to its motion for a directed verdict attorney’s damages pursuant punitive § to OCGÁ 33-34-6 fees, and (c). Georgia (b) impression “[T]his is one of first case interpretation specific [former OCGA 33-34-10 (a) (1)], question to the construction a close [correctly granted given language. . . this Thus . the trial penal- bad faith insurer’s] on the issue of motion for directed verdict damages. legal jury to award as there was no basis ties App. 204, Co., Johnson v. Nat. Union Fire Ins. [Cits.]” 687) (2) (338 (1985). McMurray opinion. this 27, 198 Decided

Rehearing denied October appellants. Smith, Ken W. Gilliam, Hunt, T.

Steven Donald v. THE STATE. 76627. MAXWELL Judge. Sognier, McKinley from the trial court’s Thomas begin report requiring Sheriff to the Cobb jail sentence. pleaded that March record reveals driving

guilty driving with- under the influence to the offenses of County, sitting pro judge A Court of Cobb out insurance. pay “24 vice, and to serve a fine hac sentenced Maxwell to custody probation—fine be- 3 months months ginning preprinted usual on the This sentence was not recorded 3/31/86.” judge form but was handwritten face of the accusation.

Appellant arrangements employer leave, with his on March to be taken Department into refused to take him into The Sheriff’s

custody, go home, and he was told to consulting attorney. April he did after with his report regularly officer, met with his continued judge thereafter. the Cobb On County an order presence State Court outside the *2 purported clarify 27, order, which, which the March 1986 but original completion jail order, like the of the three-month August 31, 1987, a condition of the third order On a September judge, 1, 1987, was which was entered purporting clarify finding original appellant and completed probation had months’ his but was still to serve three begin January provided

incarceration, 5, 1988. That order setting [appellant’s] that “the Court is a date certain [appellant] again put and incarceration which allow the to once any proper legal challenges his affairs in order and also to raise and January 15, have them heard the sentence.” hearing request held, a was to hear chal- those lenges, which were denied. appeal, alleging

1. The State has moved to dismiss the that be- appeal January 15, cause this 1988, appeal timely. order, half months after the trial court’s was not although September the order was entered on its very stayed January give appel- terms its effect until both to period again put personal lant a of time to order, once his affairs permit appellant objections and order, to raise his to the as of January appellant expressly 5, so, 1988. As invited to do and as appeal prescribed January 5, filed this within 1988, time after appeal the State’s motion to dismiss the is denied. validity

2. We need not 29, order, consider the 1986 hearing improper. Appellant as the State conceded at the that it was by ordering contends the trial court erred him to serve three months’ September 1, incarceration its because his sentence be- gan begin serving to run when he his sentence. holding We that the 302) (1978) applicable SE2d is facts this case. As McLarty, surrendered himself to the authorities at properly began; the time when his sentence as in Mc- Larty, erroneously Appel- the authorities declined to incarcerate him. trying ap- lant was not to evade his time. He pointed day custody. Further, to be taken into they available, State knew where he that he was sent reporting home, since he was to his officer. Both here expect or require did State McLarty all the conduct, thereby him, through own erroneous its the “three months right lost incarcerate beginning 3/31/86” period probationary on to the end of the

Tacking as “rearrangement” a here was not mere changed Instead, materially impermissibly urged the State. pronounced and recorded original sentence the sentence. The probation, 27, specific. called for months quite 1986 was It in cus- and 3 months a fine of 31, has the inherent 1986. While a trial court tody beginning March during the same modify judgments revise 656, Alliance, 126 Ga. court, LeCraw v. Atlanta Arts clearly not en- (1972), September 1987 order was during the of the Cobb tered same two-month term L. it well-settled that p. Although 1A. Court. See error on its sentencing jurisdiction retains to correct an Williams, beyond Hopper v. original records term of 525) (1977), original no sen- error why There was sentence should original tence. no reason written, needed been effectuated further orders were original Consequently, “speak make the the truth.” lacked order. Its authority to enter the *3 refusing to purpose try rectify the State’s own mistake begin, take his sentence was to into date thus any purpose, time not allowable the thereafter. This was changing clearly the not entered 1987 order Accordingly, impermissible. the same judgment court’s must be reversed. Appellant’s remaining enumerations error are rendered

moot our in Division 2. decision J., Banke, Judgment Birdsong, J., McMurray, P. reversed. C. J., JJ., Pope Benham, Beasley, P. Divisions 2 concur. concurs in J., J., Deen, Carley, and 3 and in the judgment. Judge, dissenting.

Deen, 31,1987, delayed 1. In August its order of enforce- “in-custody” portion so that ment of the any raise “put his affairs in order and also to could the sen- legal challenges and them heard reasonably tence.” One from that most would understand any timely from challenges raise the date of that and not the future date scheduled for from “in-custody” portion of the sentence. August aside order of appellant’s motion to set January 11, 1988, almost . half “A set a . . judgment months after the order. motion to aside remedy not an in a case. A motion ar- appropriate criminal [Cits.] judgment rest of filed judg- verdict and rendered, ment judgment are as the trial court has passed. appel- the term which it was rendered has The [Cits.] provided by lant’s motion was filed within the time law be not con- Finally, sidered as a motion for trial. the motion new does not [Cits.] necessary contain the allegations receive consideration as an ex- traordinary Therefore, motion new trial. the motion was [Cits.] it, timely not filed judgment overruling being treated as a [cit.], dismissal judgment of trial court must be affirmed.” State, (157 646) (1967). McRae v. App. See (241 597) (1978). also Palmer v. 144 Ga. App. 480 State Court of Cobb has two-month terms. Ga. L. pp. aside, 3483. The appellant’s motion to set construed as an appropriate judgment, was not filed within the same term as that Thus, which the challenged order was entered. McRae, as in we should judgment treat trial court’s overruling the dismissal, motion as a judgment and that of the trial court should be affirmed.

2. Nevertheless, even if the appellant’s challenge to the order of August 31, 1987, was timely, believe that the trial court’s denial of that motion should be affirmed. “A sentence is not voided because of delay state’s attempting to enforce it. (168 25) (1933). appears prevalent This to be a E.g., rule. Grouch, Ex parte (1925); Okla. P Crim. 343 Miller v. Evans, 115 Iowa 101 course, NW Of there is some point at which a delay state’s deemed prevent unreasonable be later enforcement Buchanan, Yates v. E.g., 170 S2d (Fla. 1965). Where the state makes no move initiate the sentence, the defendant must offer if he wishes the Moreover, to run. an offer which is because the sen- may tence put may be into effect is ineffective and not be deemed continuing. E.g., Beaty, Dixon v. supra, 188 Ga. at 690-691. The defendant’s offer must come at a time when the sentence lawfully put Crosby Courson, effect. 181 Ga. 475 *4 590) (1935); Annot., v. supra. generally Ef- fect Delay Taking Custody Defendant after Conviction and Sentence, (1964).” McLarty, ALR2d 687 v. 241 Huff McLarty, In v. where the defendant offered himself Huff begin serving his sentence of but both solicitor and the trial judge erroneously him told serv- ing Supreme Court found that the defendant’s sen- up. himself Max- run when the defendant begun tence had to run McLarty, began his sentence contends that as well March department to the sheriffs actually The trial court served. thus his term has been 27, 1986, but March to run on began that Maxwell’s sentence found by Maxwell. been served probation part to have considered defend- erroneously prevented the the State In Huff case, sentence; the State instant serving any of his ant from erroneously 31, 1986, but it to incarcerate Maxwell on declined was for- part of is uncontroverted that short, the State’s action In mally implemented promptly thereafter. was to in which Maxwell merely the order rearranged in this case still owes by the trial As found complete the sentence. negotiated jail, a debt that Maxwell the State 3 months I paid. concur that debt pleading guilty, that conclusion. reasons, respectfully the above must

For Carley in this dissent 1. to Division 19, 1988.

Decided October Menendez, appellant. Jack J. S. Aro- Head, Solicitor, Clayton, H. Victoria

Patrick H. Melodie now, Solicitors, Assistant LEVERETTE v. THE STATE.

77312.

(374 SE2d Presiding Judge.

McMurray, violations of of two Defendant Leverette conviction cocaine). (sale Held: Substances Act Georgia Controlled Two upon entrapment an defense. At trial defendant relied during incidents separate law enforcement officers testified as to accompanied a one of them had investigation undercover purchased co- home and had confidential informant to defendant’s Goff, that on each occasion caine from defendant. Defendant testified inform- the confidential suggested an individual whom defendant (one ant, to her sister-in-law asked to sell cocaine in- the confidential dercover officers was identified purported to sister-in-law, officer formant as a the other undercover defendant, “sister-in-law”). According purchase make a after the sale return alone gave Goff him the cocaine to sell and would