GRANT v. STATE (1998)

A jury convicted Lonnie Grant of the offenses of misdemeanor possession of marijuana and driving under the influence of alcohol.¹  During the trial, Grant readily admitted having the marijuana on his person but denied driving the car.   He claimed that a stranger, whom he had just met, was driving, “ ‘cause my license is suspended.   I don't drive, plus I was drunk.”   After Grant emphatically declared on cross-examination that “I never drive drunk with a suspended license,” the trial court permitted the prosecutor to inquire whether the Department of Public Safety had, in fact, suspended his license.   The court sentenced Grant to concurrent 12-month sentences on each count.   Held:

Grant's sole enumeration of error is that the trial court erred in imposing sentence on him after he raised a challenge to the voluntariness of his prior DUI guilty plea entered nearly a year earlier in another county.   He contends that once a defendant raises the issue of whether an intelligent and voluntary waiver was made with respect to a prior guilty plea, the State bears the burden of establishing a valid waiver occurred.  Manker v. State, 223 Ga.App. 3, 6(5), 476 S.E.2d 785 (1996).   See Pope v. State, 256 Ga. 195, 209(17), 345 S.E.2d 831 (1986) (presuming waiver from a silent record is impermissible).

Grant's reliance on Pope and Manker is misguided because the prior plea at issue here is a misdemeanor traffic conviction, not a felony.   Under OCGA § 40-13-33(a), any challenge to a misdemeanor traffic conviction must be filed within 180 days from when the conviction became final.²  Brown v. Earp, 261 Ga. 522, 523, 407 S.E.2d 737 (1991).   Inasmuch as Grant failed to timely assert a challenge to that conviction, he is barred from collaterally attacking it.  Walker v. State, 199 Ga.App. 701, 702-703, 405 S.E.2d 887 (1991).

Judgment affirmed.

FOOTNOTES

1.   The State nolle prossed Count 3, driving while license suspended in violation of OCGA § 40-5-121.

2.   We note that Grant did not contest the existence of his conviction but only challenged the voluntariness of his plea.   Had the State sought to introduce evidence of the conviction, it would have been obligated to produce admissible evidence of the conviction.   See Payne v. State, 219 Ga.App. 318, 319(4), 464 S.E.2d 884 (1995).  OCGA § 24-5-31.

HAROLD R. BANKE, Senior Appellate Judge.

McMURRAY, P.J., and ELDRIDGE, J., concur.