*1 Decided June July 28, denied 1995. Reconsideration Harris, Joe Frank appellant. Bowers,

T. At- Joseph Campbell, Attorney, Michael J. District torney General, Attorney Susan Boleyn, V. Senior Assistant Gen- eral, Brooks, General, Attorney Marla-Deen Assistant for appellee. THE

S95A0488. MASSEY v. STATE.

Benham, Chief Justice. Appellant County Superior was convicted in of Fulton Court of robbery, imprisonment, armed false kidnapping, and appellant’s assault. The trial and who sen- appellant tenced after the hac jury guilty pro returned verdicts was a County vice magistrate Magistrate the Chief of Fulton to OCGA 15-1-9.1 court. to assist Prior to trial, ap- of commencement his trial as well as motion new pellant supe- contended that the elected to rior court to assist the of the court violated the Geor- gia constitutional be elected. denied,1 pre-trial Both the motion and the motion for trial were new appeal and this followed. presented The State the first evidence while victim was

using home, entered, the bathroom in appellant put a throat, knife to the took pocket. victim’s and from the victim’s $120 then tied the victim’s arms and him forced into the attic where appellant tied the victim’s feet with an extension cord. Later that evening, appellant tape returned and used duct reinforce the victim’s bindings. imprisoned, While the victim used a coat hanger scratch piece plywood the letter “M” on a in the attic. The next morning, appellant captivity. released the victim from The second victim testified that she entered after home he told her person that a she was there. into a went back room wearing only returned a shirt and carrying what woman be- lieved bodily to be a knife. He then her threatened harm unless performed she grabbed oral sex on him. She he resisted and her left pre-trial attorney denied the motion after both the assistant district rejected affirmatively opportunity trial counsel to have another portion appel decide the issue. A of the of Fulton Court denied the lant’s motion for trial that raised about new concerns of the preside. breast, inflicting injuries She kicked the left scars.

escaped. Investigating drap- executing officers a search warrant found attic, ery plywood along cord and an extension cord with a plank with the letter “M” scratched on it. The State also tendered photographs of scars on the victim. The evi- left breast female dence conclude was sufficient to authorize a rational trier fact to *2 beyond guilty was a reasonable doubt of armed rob- Jack- bery, imprisonment kidnapping, false and assault. Virginia, son v. (99 560) (1979). 2781, 443 U. S. 307 SC 61 LE2d How- ever, appellant’s merged trial court should have conviction for conviction, imprisonment false kidnapping into the as the evidence kidnapping prove used to establish the the false im- was also used to State, Ellis v. prisonment charge. App. 181 Ga. SE2d 822) (1987). State, See Hill v. (4) (387 App. 193 Ga. SE2d Compare Johnson v. (2) (394 195 Ga. SE2d 586) (1990), imprisonment kidnapping where convictions for false upheld factually were because supported distinct conduct each con- imprisonment viction. The conviction and must be sentence for false vacated. magistrate

2. The presided appellant’s who over trial was (b) (2), (e), nated to do so to the terms of OCGA 15-1-9.1 § (f) and, consequence, statutorily ability as a was vested with the discharge to powers authority all duties and exercise all of the superior court. (g). magistrate was also consti- tutionally empowered judicial power superior to exercise the of the VI, I, court. Ga. Const. Art. Sec. Par. III. contends judgment of conviction is null and void because OCGA 15-1-9.1 vio- requirement superior lates the constitutional court superior elected since it authorizes not elected to court to sit superior judges. court superior The Constitution court and state “[a]ll court judges nonpartisan shall be elected on a . . .” basis. 1983 Ga. Const., VI, VII, Art. Sec. Par. I. All the of the Court position, of Fulton have been elected to that or are recent gubernatorial appointees positions to vacant who will run for election VI, VII, in general the next election. See Ga. Const. Art. magistrate Par. III. The over trial was not a superior elected, judge constitutionally required court who is to be and his him superior to assist the court did not make a superior Rather, court, judge. magistrate court he was a of the qualified court, requested by to serve on the who was judicial power supe- court time of need to exercise the court, request rior to which magistrate court assented. OCGA (b) (2) judiciary appoint- 15-1-9.1 does not to make authorize courts; instead, permits designated ments to the benches of other judicial power requesting officer from one court to exercise the requesting court in limited circum- court an effort to assist the magistrate preside stances. The of the to over statutory trial cloaked ity and constitutional author- judicial power court, to exercise the but did judge. Consequently, magistrate’s him make des- preside ignation court did not violate the constitutional be elected.2 preside 3. The trial was designated, by separate orders, also over other matters during specified periods of time. contends that the cumulative effect of such orders was the unconstitutional permanent, part-time superior judgeship. creation of a disagree. We statutory authority A does not have or inherent to create a appointments office and make indefinite thereto. Cramer v. Spalding (3) (a) (409 County, 261 Ga. 570 OCGA (b) (2) judiciary request judicial § 15-1-9.1 authorizes the assis- among things, when, tance from other courts other the re- questing assistance of an additional judges. designating specified, qualified judge The order *3 requesting period assist a court must contain the time of the assis- tance and must be filed and recorded on the minutes of the clerk of requesting (f). the § Thus, the assistance. OCGA 15-1-9.1 a judge temporarily appear to serve in does not the continuing recognizes court on a basis. The statute that our ever-increasing judiciary, courts, faced with demands on the must be given flexibility effectively judiciary utilize members of in the mu- tual assistance. designating magistrate Each of the various orders the to assist days

the when taken and, court was limited in duration to certain even did not amount to an indefinite judicially-created judicial position. Compare Spalding Cramer v. _ _ County, supra. Compare (Fla. Wild, v. also Dozier S2d 2 During hearing portion the appel of motion in for new trial which lant claimed that violated the constitutional elected, defense counsel informed the court that he also contended that the by legislative statute was an procedures unconstitutional effort the branch to control the of judicial branch, thereby violating separation powers I, II, the the doctrine of Art. Par. Ill of the hearing, State Constitution. In the order entered after the trial court stated specifically denying it was Grounds One and Two of motion for new trial. grounds Neither of those asserted that OCGA 15-1-9.1 was an unconstitutional violation of separation powers pass doctrine. We decline this attack on the constitutional ity clearly appear point properly 15-1-9.1 as it does not was raised the trial State, distinctly passed (177 the trial court. Tant v. court and on 226 Ga. 761 SE2d 1995), App. Appeals where the Florida Court of determined that four years repeated assignments county of successive and six-month serve as an acting judge circuit one-half of the crimi- particular county per- nal cases Florida amounted to a de facto assignment manent to the circuit court which unconstitu- tionally process. circumvented the electoral

4. ap- The order to which the pellant’s power authority trial clothed the 14-18, Appellant’s court for June 1993. trial commenced on June but did not conclude until June 29 because a one-week granted continuance was mid-trial. now contends his con- viction was void because the magistrate assisted the beyond specified the time in the reviewing order. After transcript, granted trial we conclude that the continuance was at behest and that will not now be heard to com- State, (3) (440 of a result he induced.3 Crozier v. plain 263 Ga. 866 635) (1994). SE2d complains that the trial court’s charge on State, Blige v. (432

assault was over-inclusive. See 208 Ga. 574) (1993). Appellant’s SE2d object charge failure to at the charge conference or when objections were or to reserve his right object appeal, procedurally on motion for new trial on bars review of this enumeration. Golden v. appellate 263 Ga. 521 Judgment Sears, Hunstein, Carley direction. affirmed JJ., Thompson, Fletcher, J., specially. concur. P. concurs

Fletcher, Justice, Presiding concurring specially. agree

I Court of Fulton did violate either Constitution or the statute when it as- signed part-time Magistrate Benjamin W. to serve a su- Spaulding perior days for 58 in 1992 and 119 I 1993. write case, presentation appellant sought 30-day In the middle of the State’s of its continu *4 ground surprise: kidnapping ance on the the State’s evidence established that the occurred 19th, despite averring kidnapping on the 18th the indictment the that had occurred prepared charge. had an alibi defense to meet the indictment’s See Caldwell v. morning Ga. The next defense counsel might re-present to withdraw his motion for continuance order that he it completion hearing proffer of the State’s case. After from the State on the rest of its evi dence, waiting the trial court determined that there would be no benefit until the to State looking closed its case to decide the motion for continuance. Defense counsel reiterated was continuance, willingness grant up for a and the trial court stated its a continuance for to a week. While the trial court believed that defense counsel had withdrawn his motion for con leaving sponte, tinuance the trial court to act sua we conclude that defense counsel did not only time, withdraw his motion but wished to assert it at another and that the trial court timing unnecessary deemed the of the motion to resolution of the merits.

separately point problems majority opinion’s out with the reason- ing superior unhealthy and the court’s designation reliance on the statute. In majority opinion

1. Division addresses whether the des- ignation Massey’s criminal trial superior superior court violates the constitutional judges court designation elected. It concludes that a under OCGA appointment; therefore, 15-1-9.1 is not an a magistrate is not a su- perior I judge. Although agree court that designating magistrate preside in superior court does not make the an unelected superior judge, begs question. court that conclusion question county’s practice repeatedly whether a nating part-time magistrates to serve as judges cre- has permanent ated part-time superior judges who are not account- public able through to the process. the electoral I do not foreclose the possibility county’s that the of continually method designating magis- trates to serve on court bench could result an indefi- permanent nite or de facto that violates both the consti- tution I agree statute. majority, however, assignment here, orders taken did not have the cu- mulative effect of indefinitely appointing a magistrate as a court judge.

Instead, the number assisted, of orders issued and length of time Spaulding order, served under each and total days number of he served on the court bench demonstrate that he served on periodic, permanent, rather than basis. Spaulding assisted days for 58 in 1992 and for 119 in 1993. To obtain help his for matters other hearings, than bond the chief judge issued ten assignment orders to assist five eighteen 1992 and orders eight assist judges in Only requested one order Spaulding’s help for many as ten days. Twenty consecutive orders sought his help day. for a Because Spaulding’s service did not amount per- to a manent, part-time judgeship, to the bench did not violate the constitutional mandate of elected court judges.

2. Similarly, the assignment orders did not violate designa tion statute. OCGA 15-1-9.1 the chief any may make a request written chief other court within county when a majority of the requesting court’s judges determines the court’s business assistance of an judge.4 additional The term “temporary assistance” help means for a limited time. We have held that it does not mean (b) (2) (C) (1994).

637 interpret “tempo judge.5 I would now the indefinite rary prohibit assignment orders to also a succession of assistance” Ap appointment.6 plyi that, taken amounts to an indefinite sufficiently ng definition, the orders were limited this court’s scope temporary the stat in time and to constitute assistance under ute. Nevertheless, the state’s courts have abused provide The statute was a mechanism for

nation statute. courts to receive enacted disqualified, judicial dis- assistance when a is abled, ill, absent, or or when a court’s business positions help.7 part-time full- It was never intended to convert judgeships magistrates court bench. time As or to elevate by shortage been, has it difficult as the crisis caused statutory justify circumventing does not guards placed the constitutional and safe- on the state’s courts. past years, increasing

In the number of two this court has seen an appeals part-time magistrates presided. from trials in which have appeals problems These illustrate the when without sufficient experience felony training assigned preside or are over exclusively domestic trials which our State Constitution reserves superior courts.8 especially potential

I am troubled conflict created when attorneys, practicing including part-time magistrates, assigned are judges.9 Assembly conflicts, serve as To avoid these the General has prohibited superior ticing prac- judges from court and full-time state court practice part-time judges magis- and restricted the and out that a

law10 points Qualifications trates.11 The Judicial Commission practices “occupies very position law sensitive with refer- ence to the Code of Judicial Conduct.”12This dual role makes it more appearance impropriety pro- difficult for to avoid the public impartiality judiciary, mote confidence as the 5 Spalding County, See Cramer v. Ga. 572 261 6 1995). Wild,_S2d_(Fla. v. See Dozier 7 (b). See OCGA 15-1-9.1 8 VI, IV, See Ga. Const. of Art. Par. I. 9 See, (1989) e.g., Advisory Op. inappropriate (concluding Formal 86-2 presides represent who issues criminal warrants or over criminal trials to criminal de exclusively); Op. regularly fendants see also Judicial Comm. No. 200 Qualifications lawyer (noting judge). the inherent conflict between the role of 15-6-5; (b). See OCGA 15-7-21 §§ (b) (prohibiting part-time practicing See from OCGA 15-7-21 state court any they jurisdiction); their own court or in matter where have exercised OCGA 15-10-22 (b) (prohibiting magistrates attorneys practicing appear who are from in their own court or ing they jurisdiction); matter where have exercised see also Court and Bar Rules, Conduct, Application p. (describing of the Code of restrictions on the Judicial 13-17 practice by part-time judges). of law Op. Judicial Comm. No. 31 Qualifications many opinions subject commission’s illustrate.13 problems Because of consequences these and the serious con- felony trials, nected with and domestic counties need to curb their practice designating part-time magistrates to sit as minimum, judges. assigning At courts should refrain from part-time magistrates felony and domestic trials. Rather, magistrates’ courts should restrict work to presiding hearings over bond and other non-jury proceedings. *6 July Decided July 28,

Reconsideration denied Scholar, Ronald J. appellant. Slaton,

Lewis R. Attorney, Hibbert, District Henry A. Carl P. Greenberg, Assistant Attorneys, appellee. District

S95A0497, S95X0499. GEORGIA DEPARTMENT OF MEDICAL ASSISTANCE v. COLUMBIA al.; CONVALESCENT CENTER et

and vice versa. Justice.

Sears, appeal This cross-appeal involve the constitutionality of two 9-2-60, statutes. One is OCGA provides which if no written order is taken in years, an action for five the action “shall automati cally (the stand dismissed” statute”). “automatic dismissal The other 9-10-2, is OCGA which provides that certain judicial actions taken cases which party the state is unless, are void among other things, the Attorney General was given five written notice of the hearing or trial that (the resulted in action “state notice Op. 19, 31, 45, See Judicial 48, 53, 59, 69, 87, 88, 91, 107, Qualifications Comm. Nos. 109, 121, 134, 137, 142, 151, 154, 155, 157, 175, 177, 180, 183, and 185. Section 9-2-60 in full as follows: (a) purposes section, For the of this Code an order of continuance will be deemed an “proceedings” include, order and the word shall be held to but shall not to, appeal be limited an special from an award of assessors or a master a condem- proceeding. nation (b) Any proceeding action or other filed in of the courts of this state in which period years no written order is taken automatically for a of five shall stand against dismissed with party plaintiff. costs to be taxed (c) When section, an action is plaintiff dismissed under this Code if the recom- mences the following action within six months the dismissal then the renewed action footing, shall limitation, stand original the same as to action.