Thе defendant was convicted in the Recorder’s Court of Columbus of disregarding a stop sign, and appealed thе local ordinance violation to the State Court of Columbus (formerly known as the City Court of Columbus) for a de novо trial pursuant to the local act authorizing such procedure. Ga. L. 1971, Extr. Sess., pp. 2007, 2061-2062, §§ 5-300, 5-301; pp. 2064-2065, §§ 5-600, 5-601, 5-602; Sanders v. City of Columbus,
When the defendant failed to appear for the call of the case for trial in State Court, the pending appeal and the required appeal bond were marked dismissed on August 6, 1990, on the State Court docket. On December 6, 1990, at a subsequent term of court, the State Court trial judge granted the defendant’s November 14, 1990 motion to reinstate the charge and the appeal bond on grounds that he had not received notice of the August trial date. The State brings this direct appeal from the grant of reinstatement.
The trial court’s order reinstating the appeal in State Court is not one of the instances set out by statute from which the state may appeal. “Pursuant to OCGA § 5-7-1, the state’s authority to take a direct appeal [in a criminal case] is limited to ‘the following instancеs: (1) From an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof; (2) From an order, decision, or judgment arresting judgment of conviction upon legal grounds; (3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; or
The 1971 local legislation provides that a defendant found guilty in Recorder’s Court “shall have the right of appeal to the City Court [presently the State Court] from the Recorder’s Court in the same manner and under the same procedure аs now prescribed by law for such appeals.” Ga. L. 1971, Extr. Sess., p. 2065, § 5-602. The procedure controlling the appeal from Recorder’s Court to the former City Court (the present State Court) provides that if the defendant fails to аppear in State Court when the case is called for trial, the State Court may dismiss the appeal. Ga. L. 1952, p. 2156, § 3. “Upon the dismissal of such appeal, and by the fact of such dismissal of such appeal, the judgment of the rеcorder’s or mayor’s court against the defendant shall be reinstated and become final and the clerk оf said [State Court] must, within 10 days thereafter, notify said recorder’s or mayor’s court, in writing, of said [State Court] dismissing such appeal; provided, however, that said [State Court] may, on motion of the defendant made within five days from the date of the order of dismissal, set aside such dismissal and reinstate such appeal on such terms as said [State Court] may рrescribe, for good cause shown by the defendant for his absence or default.” (Emphasis supplied.) Ga. L. 1952, pp. 2156-2157, § 3. The record does not reflect whether written notice of the dismissal was sent to Recorder’s Court within ten days, although a notation on the charge at the time of dismissal directs that the case be sent back to Recorder’s Court. In the absence of a contrary indication in the record, we will presume that the State Court prоperly carried out its responsibility to notify the Recorder’s Court. Green v. Sun Trust Banks,
Judgment reversed.
Notes
Under appropriate circumstances, a defendant, even though not in physical custody, may challenge a misdemeanor traffic conviction by petition for habeas corpus. Earp v. Boylan,