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Lawskills.com Georgia Caselaw
HOLLOMAN v. THE STATE.
A90A1988.
COOPER, Judge.
D.U.I., etc. Lamar Superior Court. Before Judge Smith.
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 probate court, the probate court's judgment must be assumed to be correct.
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 correct since there was no transcript reflecting evidence to the contrary. We conclude that the trial court did not accord appellant the de novo review to which he was entitled. See generally Judd v. Valdosta/ Lowndes County Zoning Bd. &c., 147 Ga. App. 128 (lb) (248 SE2d 196) (1978). Therefore, we remand this case to the superior court for a de novo proceeding to be conducted. We find that the trial court has authority to issue such orders as necessary to obtain any transcript or certified record from the probate court to aid in its jurisdiction on appeal. See OCGA 5-3-28 (b).
Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.
DECIDED MARCH 22, 1991.
Thursday May 21 09:50 EDT


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