Opinion
A91A0403.
DECIDED MAY 23, 1991.
Drug violation. Laurens Superior Court. Before Judge Towson.
Larsen Flanders, H. Gibbs Flanders, Jr., for appellant.
Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee.
O'Neal was prosecuted as a recidivist, OCGA § 17-10-7, for violation of the Georgia Controlled Substances Act by possessing cocaine with intent to distribute, OCGA § 16-13-30 (b), and by possessing less than one ounce of marijuana, OCGA § 16-13-2 (b). He appeals following conviction of the drug charges and denial of his motion for new trial. He challenges the court's refusal to suppress evidence seized from his person and his car without warrant. He enumerates that the trial court erred in "finding probable cause justifying the stop of [O'Neal] in his vehicle" and in allowing the evidence despite the lack of either a search warrant or an arrest warrant.
The substance of the challenge is not reached because the basis for the trial court's denial of suppression was the court's determination that the motion to suppress was untimely. The record shows that the motion to suppress was not filed until the course of trial, two days after the jury was selected and sworn and approximately four months after O'Neal had been arraigned, appointed counsel, and given an additional 15 days to file any motions and pleas. During that time, O'Neal filed several motions but did not file a motion to suppress even though evidence of the stop and search had already been presented at a parole revocation hearing several weeks prior to arraignment on the drug charges. See Van Huynh v. State, 258 Ga. 663, 664 (2) ( 373 S.E.2d 502) (1988); State v. Grandison, 192 Ga. App. 473 ( 385 S.E.2d 139) (1989); Stansifer v. State, 166 Ga. App. 785, 788 (3) ( 305 S.E.2d 481) (1983); Burney v. State, 159 Ga. App. 651 ( 285 S.E.2d 49) (1981). Cf. Thomas v. State, 118 Ga. App. 359, 360 (2) ( 163 S.E.2d 850) (1968); Maness v. State, 159 Ga. App. 707 ( 285 S.E.2d 193) (1981).
After the presentation of the evidence, the court did say that it found no violation of defendant's constitutional rights but reiterated that the motion to suppress was untimely and was denied for that reason.
The circumstances in Lazarz v. State, 187 Ga. App. 107 ( 369 S.E.2d 355) (1988) are similar here, and we rule likewise: "The trial court's finding as to the untimeliness of. . . [the] motion to suppress would, if correct, be a sufficient reason, in and of itself, for the denial of the motion. The trial court's holding in that regard is not enumerated as error and appellant thus concedes the correctness of that ruling. Accordingly, the trial court did not err in denying appellant's motion to suppress. `Since we find that the . . . motion to suppress was not timely made, we need not address the question whether the evidence should have been admitted.' [Cits.]" See OCGA § 17-5-30; Dixson v. State, 191 Ga. App. 410 (1) ( 382 S.E.2d 357) (1989).
Judgments affirmed. Banke, P. J., and Carley, J., concur.