Summary
In Cofer v. Cook, 141 Ga. App. 646 (234 S.E.2d 185) (1977), the court found a collateral attack under § 81A-160 (a) proper in a license suspension case where the conviction on which the suspension was based was void on its face.
Summary of this case from Hardison v. ShepardOpinion
53558.
ARGUED MARCH 2, 1977.
DECIDED MARCH 18, 1977.
Traffic violation. DeKalb Superior Court. Before Judge Allen.
Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, John C. Walden, Senior Assistant Attorney General, Kirby G. Atkinson, Assistant Attorney General, for appellant.
Jones Wilson Tomlinson, John E. Tomlinson, for appellee.
The appellee was charged with driving under the influence on January 9, 1976, in the City of College Park; he pled guilty to the offense and paid a fine. The clerk of the City Court of College Park forwarded to the appellant a copy of the uniform citation form showing the appellee's offense and conviction; this citation lists as the offense "Operating Under Influence City Code Sec. 15-78." Under Code Ann. § 68B-305 (3) the appellant began proceedings to suspend the appellee's license; the appellee filed an appeal to the Superior Court of DeKalb County, challenging his prior conviction for driving under the influence as a basis for suspending his license. The superior court reversed the suspension of the license and the Department of Public Safety appeals.
ARGUED MARCH 2, 1977 — DECIDED MARCH 18, 1977.
1. The uniform citation form shows the appellee was charged and convicted of driving under the influence "City Code Sec. 15-78" on January 9, 1976. The problem is that on this date there was no "City Code Sec. 15-78"; this ordinance had been repealed by the City of College Park on October 6, 1975, by Ordinance 75-27, adopting Title 68A of the Code as the valid traffic ordinances for the municipality. Even prior to its repeal, "City Code Sec. 15-78" could not have been enforced by the City of College Park. Code Ann. § 68A-1501.
The trial judge's finding that the appellee's conviction "is void on its face and of no force and effect" is correct. That conviction shows on its face a conviction under a repealed and otherwise unenforceable ordinance.
2. The appellant urges that having paid his fine after pleading guilty to the charge of driving under the influence, the appellee may not collaterally attack his conviction in DeKalb Superior Court and that the suspension of the license is therefore automatic. The conviction which is the predicate to the suspension is void on its face and a mere nullity and may be attacked. Code Ann. § 81A-160 (a); "and the revocation of a driver's license based upon such conviction, being at most merely additional punishment based upon the prior conviction, is also void and a mere nullity..." Wallace v. State, 112 Ga. App. 505, 506 ( 145 S.E.2d 788). The trial judge's order reversing the suspension of the appellee's license was proper.
Judgment affirmed. Marshall, J., concurs. Webb, J., concurs in the judgment only.