Opinion
51451.
ARGUED OCTOBER 30, 1975.
DECIDED NOVEMBER 7, 1975.
Violation of ordinances. Dougherty Superior Court. Before Judge Kelley.
William H. Hedrick, for appellant.
Landau, Davis Spooner, James V. Davis, for appellee.
Albert Edwards was charged with two separate offenses under the city ordinances of the City of Albany, i.e., assembling for the purpose of gambling to which he pleaded guilty, and assembling for the purpose of violating the Georgia Controlled Substances Act, to which he pleaded not guilty. He was convicted on the second charge and sentenced to pay a fine of $220 or serve 66 days in jail. The fine was paid.
Application for certiorari was made, sanctioned and denied. Applicant appeals. Held:
1. Under Pace v. City of Atlanta, 135 Ga. App. 399 ( 218 S.E.2d 128), applicant's constitutional attacks upon the ordinances may have been meritorious if said constitutional attacks had been properly raised at the first opportunity. It is shown here that said constitutional attacks were not raised in the recorder's court. Such cases as Galfas v. Ailor, 206 Ga. 76 (1) ( 55 S.E.2d 582); Cheek v. White, 204 Ga. 321 ( 49 S.E.2d 819); Smith v. Mayor c. of Macon, 202 Ga. 68, 70 ( 42 S.E.2d 128); Brockett v. Maxwell, 200 Ga. 213 (3) ( 36 S.E.2d 638); Martin v. State, 199 Ga. 731 ( 35 S.E.2d 151); Thompson v. Allen, 195 Ga. 733, 734 (1) ( 25 S.E.2d 423); Edwards v. McNair Sellers, 152 Ga. 486 ( 110 S.E. 280), hold that no question of constitutional law is properly presented where the question is not raised at the first opportunity. It has been held that the failure to raise such constitutional attacks at the first opportunity amounts to a waiver. See Western A. R. v. Michael, 172 Ga. 561, 566 ( 158 S.E. 426); Hazelhurst v. Southern Fruit Distrib., 46 Ga. App. 453 (1) ( 167 S.E. 898); Garland v. State, 101 Ga. App. 395, 396 (2), 400 ( 114 S.E.2d 176).
2. But the case before us is moot inasmuch as the defendant paid his fine before ever attempting a review by certiorari from the recorder's court. The trial court therefore did not err in affirming the recorder. See Savage v. State, 24 Ga. App. 550 ( 101 S.E. 711); Blakey v. State, 31 Ga. App. 157 ( 120 S.E. 16); Poppell v. State, 114 Ga. App. 309 ( 151 S.E.2d 181); Hayes v. State, 116 Ga. App. 260 ( 157 S.E.2d 30).
Appeal dismissed. Deen, P. J., and Stolz, J., concur.