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DUNCAN v. THE STATE.
75591.
BIRDSONG, Chief Judge.
D.U.I., etc. Gwinnett Superior Court. Before Judge Stark.
Appellant was convicted of improper lane usage and DUI by the Gwinnett County Recorder's Court. Appellant filed an appeal pursuant to OCGA 40-13-28 and the Gwinnett County Superior Court dismissed the appeal. Appellant appeals to this court and has enumerated the following two errors: (a) that the superior court erred in dismissing appellant's appeal and not hearing the case on its merits; and (b) that the recorder's court erred in trying appellant for a violation of state law over which it had no jurisdiction.
We have appellate jurisdiction over the first enumerated error pursuant to OCGA 5-6-34, and over the second enumerated error pursuant to OCGA 5-6-34 (c). We will address appellant's second enumerated error first, because if his contentions are correct, the resolution of this issue will be dispositive of this appeal.
The court ultimately found appellant guilty "of the charge of driving under the influence as well as the lane change violation"; and, the disposition and sentence portion of the two Uniform Traffic Citation/ Summons/Accusation/Warning forms reflect that appellant was so convicted. In view of the above, we are satisfied that appellant has been tried and convicted in recorder's court for violations of state law rather than for a violation of local ordinance as asserted by the appellee.
Art. VI, Sec. I, Par. I of the Georgia Constitution of 1983 vests the "judicial power of the state" in specific classes of courts. County recorder's courts are not among those vested with such power. The provisions of this constitutional paragraph are expressly made applicable to recorder's courts, and constitute a limitation on their jurisdiction. Thus, county recorder's court cannot exercise state judicial power. Accordingly, the recorder's court of Gwinnett County was without jurisdiction to try appellant for a violation of state law, rather than for a violation of a county ordinance. See State v. Millwood, 242 Ga. 244, 246 (248 SE2d 643); City of Atlanta v. Landers, 212 Ga. 111, 113 (90 SE2d 583); Parker v. State, 170 Ga. App. 333 (1) (317 SE2d 209); Wallace v. State, 112 Ga. App. 505 (1) (145 SE2d 788). Thus, the proceeding by the recorder's court in the case at bar is null and void. As the proceeding was null and void, OCGA 16-1-7 (b); 16-1-8 (a) and (b); and 40-6-376 (c) do not prohibit appellant's retrial on grounds of double jeopardy or prior prosecution. See OCGA 16-1-8 (d) (1); Parker v. State, supra at 334.
2. In view of the disposition of the second enumerated error, we need not address the merits of appellant's first enumerated error.
Robert S. Jones, Solicitor, for appellee.
Virgil L. Brown, for appellant.
DECIDED JANUARY 25, 1988 -- REHEARING DENIED FEBRUARY 17, 1988 -- CERT. APPLIED FOR.
Thursday May 21 12:18 EDT


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