Opinion
A90A1988.
DECIDED MARCH 22, 1991.
D.U.I., etc. Lamar Superior Court. Before Judge Smith.
Virgil L. Brown Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.
Tommy K. Floyd, District Attorney, for appellee.
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 S.E.2d 521) (1988). The trial court, citing Mindock v. State, 187 Ga. App. 508 (1) ( 370 S.E.2d 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 (1b) ( 248 S.E.2d 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).
Case remanded with direction. Banke, P. J., and Birdsong, P. J., concur.