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182 Ga. App. 661

356 S.E.2d 725

Richardson v. State

Court of Appeals of Georgia

Decided April 17, 1987

Court of Appeals of Georgia · decided 1987-04-17

Cited by 5 later decisions — most recently November 2001

5 state decisions

Relies on 179 Ga. App. 16 - Hagger v. State · 177 Ga. App. 647 - Carter v. State · Riddle v. Camp

Good law ✅— No negative treatment on recordhow we know

Decided 1987-04-17

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Beasley, Judge,

¶1concurring specially.

¶2I concur fully in Divisions 1 and 3. However, I reach the conclusion of the Court in Division 2 by a different route.

¶3Defendant did not raise non-compliance with Uniform Superior Court Rule 31.3 below and thus cannot raise for the first time here his second enumeration of error, that the trial court did not hold an adequate hearing to determine the admissibility of the prior burglary conviction. Riddle v. Camp, 179 Ga. App. 129, 131 (2) (345 SE2d 667) (1986).

¶4That should end the inquiry, but since the Court has examined the merits, it should be noted that there was no error and the harmless error rule does not apply. The hearing on the question of admissibility, just before trial when defendant filed a motion in limine, was prompted by the very fact that defendant had been notified of the state’s intent. Counsel stated that he was served a copy of defendant’s prior record, and that it reflected the guilty plea in question. The state also acknowledged having given notice. The record not only contains the notice itself, served two months before trial, but it also shows that the defendant twice subpoenaed the police report regarding the earlier burglary.

¶5The court considered the certified copy of the first offense, fully heard argument from both sides, and finding that it involved defendant and was similar, ruled that it would be admissible by denying the motion in limine. Thus I see no error. See generally Carter v. State, 177 Ga. App. 647, 648 (1) (340 SE2d 622) (1986). Even if there was some deviation from the procedure provided by Rule 31, it was *664waived by defendant’s failure to object on this ground. Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986).

Decided April 17, 1987.Charles C. Grile, for appellant.Spencer Lawton, Jr., District Attorney, Virginia A. Erskine, Assistant District Attorney, for appellee.

¶6Assuming for the moment that there was some procedural noncompliance with the Rules, and that it was properly raised, there is a problem with application of the principle that appellant must show a substantial and harmful violation in order to gain reversal. If this be the norm, it will be difficult to compel compliance with the Rules. The burden should be on the violator to justify the violation or show its non-effect, not on the one whom it seeks to protect to show how he has been adversely affected. Simply his showing of a violation should cast the burden on the violator.

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