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Smith v. State8/4/1999
In the Court of Appeals of Georgia
Sm-058C
Franklin D. Smith was charged by accusation with two counts of D.U.I. He was tried by a jury, which found him guilty as charged. He appeals, raising issues with regard to the denial of pretrial motions and the trial court's charge. We find no merit in Smith's contentions, and we affirm the judgment.
1. Count I of the accusation charged Smith with D.U.I to the extent that he was a less safe driver, citing OCGA § 40-6-391; Count II charged him with driving with an unlawful alcohol concentration, erroneously citing subsection (a) (4) of OCGA § 40-6-391. Smith contends the trial court should have dismissed both charges because Count II cited the wrong Code subsection. He argues that because both counts involved the "same transaction," they were "inextricably attached" so that if Count II fails, Count I must fail, as well. The State concedes that Count II should have cited subsection (a) (5) of the statute instead of subsection (a) (4). For several reasons, we agree with the State that notwithstanding this error, the trial court correctly refused to dismiss the accusation.
First, although Smith filed a "Motion Asserting Demurrers" to the accusation, that document did not raise this particular issue. It is axiomatic that Smith may not raise on appeal an issue not raised and ruled on below. See, e.g., Freeland v. State, 223 Ga. App. 326, 327 (2) (477 SE2d 633) (1996).
Second, the record shows that the motion was filed on May 14, 1998, three days after Smith was arraigned. Because Smith's contention challenges the sufficiency of the form of the accusation, it would be a special demurrer, which must be filed at or before arraignment. OCGA § 17-7-113; see also USCR 31.1 (requiring that all motions, demurrers, and special pleas be made at or before arraignment unless time extended by Judge in writing prior to trial); Bennett v. State, 216 Ga. App. 365, 366 (454 SE2d 562) (1995). A special demurrer not filed at or before arraignment is waived. Dunbar v. State, 209 Ga. App. 97-98 (432 SE2d 829) (1993).
Finally, even had Smith's motion been timely filed and raised this issue, it would not have affected the validity of his conviction on Count I of the accusation, which charged that he was a less safe driver. The cases cited by Smith in support of his contention that the two counts were "inextricably attached" and that Count I must fail if Count II was subject to special demurrer simply do not support his contention. Jones v. State, 75 Ga. App. 610, 614-615 (4) (44 SE2d 1740 (1947), does not stand for the proposition for which it is cited by Smith. And Kevinezz v. State, 265 Ga. 78 (454 SE2d 441) (1995), involved a completely different fact situation. In Kevinezz, the conviction for vehicular homicide was reversed because the Supreme Court was unable to discern the theory upon which the jury based its verdict. In that case, one possible theory was valid, and the other invalid because it had not been properly charged in the indictment but the jury had been instructed on that statute. Id. at 83 (2) (d).
Here, the State charged Smith with two alternative counts of D.U.I., arising from the same conduct, allowing the jury to decide on a verdict as to each count. This practice has been upheld numerous times. See, e.g., State v. Corbitt, 221 Ga. App. 304 (471 SE2d 261) (1996); Tomlin v. State, 184 Ga. App. 726, 727 (1) (362 SE2d 489) (1987). A defect in one count need not affect the other, alternative charge relating to the same transaction. The crime of driving under the influence may be committed in several different ways, and different facts are required to prove the alternative methods of committing
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