Taylor v. State

¶1dissenting.

¶2I concur in Divisions 1 and 2 but respectfully dissent as to the second part of Division 3 and would affirm the convictions and sentences.

¶3Defendant does not make an issue of whether the convictions with which he was charged fit within the term “a second or subsequent offense.” The prior offenses resulted in Florida convictions for possession of heroin and three counts of sale of cocaine. Thus as to nature of these crimes, they fit within the description of what is enumerated in subsection (b), OCGA § 16-13-30: “Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.”

¶4Our function as intermediate appellate judges is to correct errors of law which are complained of. It does not extend to reaching into the record and sua sponte raising and deciding issues not presented by the parties. Ga. Const. 1983, Art. VI, Sec. V, Par. III. See OCGA § 5-6-40; Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 746 (3) (360 SE2d 70) (1987); Phelps v. State, 130 Ga. App. 344 (3) (203 SE2d 320) (1973); Craig v. State, 130 Ga. App. 689, 692 (6) (204 SE2d 307) (1974). Although the latter is not a precedential case, the point here in focus is based on a unanimous decision of the Supreme Court describing this court’s jurisdiction as well as its own, Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970). As succinctly stated in Barnes v. State, 157 Ga. App. 582, 589 (2) (277 SE2d *116916) (1981): “The Court of Appeals is a court for the correction of errors below; it is not a court of original jurisdiction. Georgia Constitution, Art. VI, Sec. II, Par. VII [sic].1”

¶5Not only was the issue not raised or ruled on below, it is neither enumerated as error nor briefed. These are all prerequisites to our consideration of a question. Southern R. Co. v. Ga. Kraft Co., 183 Ga. App. 884 (1), (7) (360 SE2d 605) (1987); Harmon v. Southern R. Co., 123 Ga. App. 309, 310 (2) (180 SE2d 604) (1971); McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985); Martin v. State, 72 Ga. App. 810 (35 SE2d 315) (1945); Rules 15 (c) (2) and 27 (e). It thus has been subjected to no adversarial debate by the parties, no submission of argument or citation of authorities on both sides of it. Defendant does not say that his prior offenses are not embraced within the legislature’s intendment, nor has the State had opportunity to show that they do.

¶6We take a big jurisdictional step when we venture beyond the matters complained of, and a larger one yet when in so doing we construe a statute contrary to the lower court’s unchallenged construction.

¶7I am authorized to state that Presiding Judge Deen and Judge Carley join in this dissent.