Opinion
A01A0217.
DECIDED: FEBRUARY 20, 2001.
DECIDED FEBRUARY 20, 2001.
D.U.I., etc. Fulton Traffic Court. Before Judge Tharp.
Joe Morris III, for appellant.
Joseph J. Drolet, Solicitor, Craig E. Miller, Assistant Solicitor, for appellee.
Andrew Chandler appeals from his convictions of driving under the influence and no proof of insurance, contending insufficient evidence supports his convictions and that the trial court erred when it allowed admitted hearsay evidence. Because the State failed to prove venue beyond a reasonable doubt, we must reverse.
Relying upon the Georgia Supreme Court's recent opinion inJones v. State, 272 Ga. 900 (S.E.2d) (2000), Chandler asserts the State failed to prove venue beyond a reasonable doubt. InJones, the Supreme Court clarified the "slight evidence exception" as follows:
The slight evidence exception has two parts and is written in the conjunctive; before slight evidence of venue will be deemed sufficient, venue must not have been challenged and there must be no conflicting evidence regarding venue. The first of these requirements will never be satisfied in a criminal trial, because venue is challenged whenever a criminal defendant pleads not guilty to an indictment's charges. [Cit.] The act of pleading not guilty to an indictment is considered by law to be an irrefutable challenge to all the allegations set forth therein, including those allegations pertaining to venue. [Cit.] Hence, when a criminal defendant pleads not guilty, he or she has challenged venue, and the State will not be permitted to invoke the exception permitting it to establish venue with mere slight evidence. Quite to the contrary, whenever a criminal defendant pleads not guilty and is put on trial, the State is placed on notice that at trial, it will be required to establish venue beyond a reasonable doubt. Therefore, by its own definition, the slight evidence exception can never be invoked after a criminal defendant pleads not guilty and is placed on trial. . . . Henceforth, it will not be recognized in any appeal from a judgment of conviction entered after a bench or jury trial in any criminal matter. (Emphasis supplied.)
(Bold in original.)
(Emphasis in original.)
Id. at 902-03.
In this case, the State concedes that it failed to prove venue beyond a reasonable doubt. It urges this court to affirm Chandler's convictions based upon the slight evidence exception, even though the defendant pled not guilty and this case was tried.
According to the State, the first prong of the slight evidence exception was met because the defendant stipulated to the breath test results and admitted that he was driving. This argument overlooks the Supreme Court's command that the slight evidence exception cannot be recognized "in any appeal from a judgment of conviction entered after a bench or jury trial in any criminal matter." Id. A stipulation of fact or an admission during trial cannot be used to invoke the exception "because venue is challenged whenever a defendant pleads not guilty. . . ." Id. at 902.
Because the State failed to prove venue beyond a reasonable doubt and the slight evidence exception cannot be applied, we reverse Chandler's convictions. Tunarka v. State, ___ Ga. App. ___ (Case No. A00A2084, decided January 17, 2001). His remaining enumerations of error are rendered moot. Id.
Judgment reversed. SMITH, P.J., and PHIPPS, J., concur.