Wigley v. State

Full title: WIGLEY v. THE STATE

Court: Court of Appeals of Georgia

Date published: Oct 22, 1976

230 S.E.2d 108 (Ga. Ct. App. 1976)

230 S.E.2d 108

Opinion

52932.

ARGUED OCTOBER 5, 1976.

DECIDED OCTOBER 22, 1976.

D.U.I. Polk State Court. Before Judge Flournoy.

Dunaway Perry, William J. Perry, for appellant.

Gammon Anderson, Joseph N. Anderson, for appellee.

DEEN, Presiding Judge.

1. The defendant was tried and convicted under a three-count accusation charging him with the offenses of drunk driving on June 29, July 13 and November 16, 1975, respectively. Prior to trial the defendant orally moved to sever the various counts for trial, and the court overruled the motion. This was error. Where the counts have been joined solely on the ground that the offenses are of the same or similar character, the trial court has no discretion but to grant the motion. Dingler v. State, 233 Ga. 462 ( 211 S.E.2d 752); Buckles v. State, 137 Ga. App. 802 ( 225 S.E.2d 61). This is not a mere matter of form, since, as Dingler points out, only thus may the fair rights of the defendant be protected. Our statute (Code § 26-506) does not require motions to sever to be in writing, nor do the ABA Standards Relating to the Administration of Criminal Justice, on which the Dingler decision is based, have such a requirement. Rule 12 (b) (5) of the Federal Rules of Criminal Procedure relating to pre-trial motions for severance particularly specifies that they may be either written or oral at the discretion of the trial judge. The court here required counsel to dictate his motion into the record, and this sufficiently establishes its content. The erroneous denial of the motion requires the grant of a new trial.

2. The remaining enumeration of error is without merit. Shy v. State, 234 Ga. 816 (1) ( 218 S.E.2d 599).

Judgment reversed. Webb and Smith, JJ., concur.

ARGUED OCTOBER 5, 1976 — DECIDED OCTOBER 22, 1976.