Davenport v. State , 313 Ga. App. 745 ( 2012 )

722 S.E.2d 457 (2012) 313 Ga. App. 745

DAVENPORT
v.
The STATE.

No. A09A1619.

Court of Appeals of Georgia.

January 27, 2012.

Head, Thomas, Webb & Willis, William C. Head, Atlanta, for appellant.

Barry Edward Morgan, Sol.-Gen., Joseph W. Hudson, Asst. Sol.-Gen., for appellee.

PHIPPS, Presiding Judge.

Emily Davenport was convicted of driving under the influence of alcohol. In Davenport, v. State,^[1] she appealed from the conviction, challenging the trial court's denial of her motion for an order authorizing the issuance of a subpoena to an out-of-state witness.^[2] In denying Davenport's motion, the trial court determined that the out-of-state witness's testimony was not necessary and material to the case.^[3] We affirmed the judgment.^[4]

The Supreme Court of Georgia vacated our judgment and remanded the case to us with direction.^[5] The Court held that we erred in stating that Davenport was required to make a showing that the out-of-state witness was a "necessary and material" witness.^[6] The Court explained that, under OCGA § 24-10-94, the Georgia trial court is required to "determine only whether the out-of-state witness is a ``material witness' in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia."^[7] Whether the witness is "necessary and material," the Court further explained, "is one of the determinations that must be made under OCGA § 24-10-92(b) by the judge in the county where the out-of-state witness is located."^[8]

Because the court below did not apply the proper statute in this case,^[9] we remand the case for the court to apply the correct statute and revisit Davenport's motion for an order authorizing the issuance of the out-of-state subpoena.^[10] If the trial court determines that the witness is a material witness, then it must consider whether it should have issued a certificate in this case and, if so, whether Davenport is entitled to a new trial or a new trial conditioned on the issuance by the out-of-state court of a subpoena to compel the appearance of the witness in Georgia.^[11] If the trial court determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Davenport may file a timely appeal from that determination.^[12]

Judgment affirmed on condition and case remanded with direction.

DILLARD and BOGGS, JJ., concur.

NOTES

[1] 303 Ga.App. 401, 693 S.E.2d 510 (2010).

[2] Id.

[3] The trial court expressly incorporated the reasoning and legal analysis set forth in the order in another case pending below, which order included the "necessary and material" statutory language.

[4] Davenport, supra at 403, 693 S.E.2d 510.

[5] Davenport v. State, 289 Ga. 399, 404, 711 S.E.2d 699 (2011).

[6] Id. at 402, 711 S.E.2d 699.

[7] Id.

[8] Id.

[9] See id. at 404, 711 S.E.2d 699.

[10] See Spann v. State, 310 Ga.App. 575, 576(1), 713 S.E.2d 722 (2011).

[11] Id.; DiMauro v. State, 310 Ga.App. 526, 529(2), 714 S.E.2d 105 (2011).

[12] See Spann, supra; DiMauro, supra.