Williford v. StateWilliford v. State
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- Before:
- Blackburn
Defendant Travis Williford appeals the trial court’s denial of his motion for stay and supersedeas bond following his conviction and incarceration for selling and possessing drugs.
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He contends that the trial court erred in denying supersedeas by failing to enter written findings of fact in its order, by not considering evidence in support of the grant of supersedeas and weighing it against the evidence for denial of supersedeas, and in failing to consider the likelihood of success on appeal. Williford has filed a motion to expedite this appeal based upon the fact that he is incarcerated. Such motion is unnecessary, as in all criminal cases wherein the defendant is incarcerated, the clerk of the trial court is required to indicate such condition on the face of the record and this court is required to expedite the disposition thereof.
Appellant first contends that the trial court erred by not making written findings of fact and conclusions of law in its order, relying on Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976); Weaver v. State, 200 Ga. App. 82, 83 (406 SE2d 574) (1991); Logan v. State, 151 Ga. App. 274 (259 SE2d 678) (1979); and Fong v. State, 148 Ga. App. 828, 831 (253 SE2d 218) (1979). Appellant’s contention is not supported by current law.
As discussed in more detail below, the Georgia Supreme Court in
Birge,
a 1976 case, prescribes the standards that a trial court should apply in determining whether to grant supersedeas, and it does not specifically require that the order set forth findings to support its ruling. This Court did, however, in
White v. State,
146 Ga. App. 147, 148 (245 SE2d 870) (1978), set out the additional requirement
In
Moore v. State,
151 Ga. App. 413, 414 (260 SE2d 350) (1979), this Court removed the writing requirement found in
White,
revising paragraph two of page 148 of
White
to read as follows: “In view of the number of cases we receive on the matter of appeal bond hearings, this court will set out the procedure a trial court must follow in order to abide by
Birge.
‘(A)fter a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal should be reviewed and a
fresh determination
made by the trial court.’ (Emphasis supplied.)
Birge v. State,
238 Ga. 88, 89, supra. In doing so, the court must give applicant notice of the hearing and a chance to appear and be heard. At such hearing the burden of seeking a stay of execution and a release on bond is upon the applicant. Also, ‘the trial judge may consider all the evidence adduced at the trial that is pertinent to this determination in addition to such other oral and documentary evidence that he may consider appropriate.’ [Cit.] After the appeal bond hearing conducted in accordance with the above guidelines, the court
must
make its decision as to the granting or denying of the appeal bond by answering the question [s] set out in the above paragraph. [
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] The answer of ‘yes’ to any one of the above questions will support the denial of an appeal bond, absent an abuse of discretion. If an affirmative finding is reached as to any one of the four
Birge
criteria, for this court to consider the appeal the record must include a transcript or meet the requirements of [
“Anything to the contrary in White v. State, 146 Ga. App. 147, supra; Johnson v. State, 147 Ga. App. 94 (248 SE2d 170) (1978); Fong v. State, [supra]; and Logan v. State, [supra], is hereby overruled.” (Emphasis supplied.)
Moore’s revision of White clearly deleted the requirement that a trial court, denying a motion for stay and supersedeas bond, set out in writing those facts supporting its determination. Therefore, in this matter, it was not error for the trial court to fail to set forth in writing the evidence supporting its determination which was contained in the record.
As to the substantive errors enumerated by the appellant, “[t]he granting of an appeal bond to a person who has been convicted of [a crime of the type herein involved] shall be in the discretion of the convicting court.”
The Georgia Supreme Court in
Birge
adopted the following modified version of ABA Standards, Criminal Appeals, § 2.5 (a) and (b) (1974) for release pending appeal in noncapital felony cases: “ ‘(a) When an appeal has been instituted by a convicted defendant after a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal
Based on Williford’s sentence to 30 years confinement, a prior conviction for the possession of cocaine, and the evidence supporting the instant conviction upon two counts of selling cocaine and a third count of possessing cocaine, the trial court found that Williford was a flight risk and that the likelihood existed that he would commit other serious crimes, in effect, that Williford posed a danger to others.
Inasmuch as the findings of the court are supported by the record, we cannot say that the court abused its discretion in refusing to stay Williford’s sentence or grant an appeal bond.
Judgment affirmed.
McMurray, P. J., and Andrews, J., concur.
Notes
Notice of appeal on the merits of this case was timely filed in the trial court contemporaneously with the instant matter; however, that appeal is not before this Court at this time.
“The above paragraph referred to in White is as follows: ‘The mandate of Birge v. State, supra, requires the trial court to address four questions when determining whether to allow an appeal bond: (1) Is there a substantial risk the applicant will flee? (2) Is there a substantial risk the applicant will pose a danger to others or to the community? (3) Is there a substantial risk the applicant will intimidate witnesses or otherwise interfere with the administration of justice? (4) Does it appear the appeal was frivolous or was taken only for purposes of delay? An affirmative answer to any of these questions will support denial of an appeal bond.’ ” Moore v. State, supra at 414.