State v. Kevin L. Johnson ( 2019 )

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 26, 2019
In the Court of Appeals of Georgia
A19A1967. THE STATE v. JOHNSON.
PHIPPS, Senior Appellate Judge.
We granted the State’s application for discretionary review of a superior court
order reversing a municipal court’s conviction of Kevin Leonard Johnson for driving
with a suspended license. For the reasons that follow, we reverse.
The evidence shows that on February 2, 2018, Johnson received traffic
citations for having an expired registration and driving with a suspended license. The
record additionally shows that, also on February 2, 2018, Johnson had been served
with notice that his license had been suspended about a week earlier, on January 26,
2018. There is nothing in the record before this Court to indicate whether Johnson
received notice of the suspension of his license prior to or after being pulled over and
cited for driving with that suspended license.
After a bench trial, the Municipal Court of Lake City acquitted Johnson of the
expired registration offense but found him guilty of driving with a suspended license
(OCGA § 40-5-121) and sentenced him to 12 months’ probation and a fine with the
proviso that probation would terminate after one month if he paid the fine and
completed the other obligations and conditions of probation.
Johnson appealed to the Superior Court of Clayton County, which heard
argument on December 11, 2018. At the hearing, Johnson argued that even though
the police officer testified at the municipal court bench trial, the State failed to present
a certified copy of his driving record showing that his license had been suspended.
The superior court reversed Johnson’s conviction on a different ground, finding that
the State failed to show that Johnson had received notice of the suspension prior to
the date he was stopped. The State then filed this discretionary appeal.1
The State contends that the superior court erred in conducting a de novo
review. The State also argues that no transcript of the municipal court trial was before
the superior court and that the municipal court record before the superior court was
incomplete. For these reasons, the State contends, the superior court had no way of
determining what documents had been tendered into evidence.
1
Johnson did not file an appellee’s brief.
2
When a defendant is convicted of a traffic violation, he has the right to appeal
to the superior court, but that appeal “shall not be a de novo investigation . . . but
shall be on the record of the hearing as certified by the judge of that court who
presided at the hearing below.” (Emphasis supplied.) OCGA § 40-13-28. Pursuant to
this standard, a defendant is entitled to a review of whether the lower court properly
admitted evidence and whether the evidence was sufficient to support his conviction.
Walton v. State, 261 Ga. 392, 393 (2) (405 SE2d 29) (1991). “In enacting OCGA §
40-13-28, the General Assembly provided for a right of appeal ‘on the record’ to the
superior court. Thus, the mandate of the superior courts is to review asserted errors
of law in the proceedings below under general appellate principles.” Id. at 394 (2).
Further, “the burden remains on the defendant to ensure that the record includes the
issue upon which he or she seeks review[.]” Id. at 394 (2), n. 5.
As there was no transcript of the municipal court hearing before the superior
court, it would have been impossible for the superior court to review that record to
determine what evidence was tendered to the municipal court and whether the
municipal court received or heard evidence regarding whether Johnson, on February
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2, 2018, received notice of his license suspension before or after being cited, that
same day, for driving with a suspended license.2
In this case, the superior court’s decision was inconsistent
with the general principle of appellate practice that enumerations of
error based on the evidence cannot be considered in the absence of a
transcript, or a record prepared from recollection or a stipulation of the
case pursuant to OCGA § 5-6-41 (g), (i), as well as the principle that the
burden is on the appellant to show error affirmatively by the record.
Based on these same principles we hold in the present case that the
Superior Court was required to presume, in the absence of a contrary
showing, that the evidence introduced in municipal court supported the
appellant’s conviction[].
(Citations and punctuation omitted.) Giles v. City of Locust Grove, 203 Ga. App. 164,
166 (3) (416 SE2d 758) (1992) (affirming superior court’s decision to uphold
defendant’s convictions in municipal court where superior court “could not have
undertaken a review of the evidence in the case because no transcript or summary of
2
While the record before this Court does show that Johnson was cited for
driving with a suspended license at 7:02 p.m. on February 2, 2018, the document
showing that Johnson was served with notice of his previously suspended license is
also dated February 2, 2018, but contains no information as to what time he was
served.
4
the evidence was contained in the record transmitted to it by the municipal court”).
Thus, for the reasons outlined above, we reverse.
Judgment reversed. McFadden, C. J., and McMillian, P. J., concur.
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