Holloman v. State

Cooper, Judge.

Appellant was convicted in probate court of driving under the influence and speeding and appealed his conviction to the superior court pursuant to OCGA § 40-13-28. At the hearing in superior court, appellant argued that there was insufficient evidence to support the conviction; however, there was no transcript of the probate court proceedings. The trial court affirmed the judgment of the probate court, finding that since there was no transcript of the proceedings in pro bate court, the probate court’s judgment must be assumed to be cor rect.

Appellant contends that the superior court erred in affirming the judgment of the probate court because without a transcript there was no evidence of his guilt. “OCGA § 40-13-28, having eliminated the jury feature of an appeal to the superior court, then provides that the] appeal ‘shall be on the record of the hearing as certified by the judge] of that court who presided at the hearing below.’ ” Anderson v. City of Alpharetta, 187 Ga. App. 148, 149 (369 SE2d 521) (1988). The trial court, citing Mindock v. State, 187 Ga. App. 508 (1) (370 SE2d 670) (1988), presumed that the verdict of the probate court was corree since there was no transcript reflecting evidence to the contrary. W< conclude that the trial court did not accord appellant the de nov review to which he was entitled. See generally Judd v. Valdosta Lowndes County Zoning Bd. &c., 147 Ga. App. 128 (1b) (248 SE2d 196) (1978). Therefore, we remand this case to the superior court for de novo proceeding to be conducted. We find that the trial court hai authority to issue such orders as necessary to obtain any transcript o: certified record from the probate court to aid in its jurisdiction oi| appeal. See OCGA § 5-3-28 (b).

Case remanded with direction. Banke, P. J., and BirdsongI

Decided March 22, 1991. Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant. Tommy K. Floyd, District Attorney, for appellee. P. J., concur.