Edwards v. City of Albany

136 Ga. App. 488 (1975)

221 S.E.2d 681

EDWARDS v. CITY OF ALBANY.

51451.

Court of Appeals of Georgia.

Argued October 30, 1975.

Decided November 7, 1975.

William H. Hedrick, for appellant.

Landau, Davis & Spooner, James V. Davis, for appellee.

EVANS, Judge.

Albert Edwards was charged with two separate offenses under the city ordinances of the City of Albany, i.e., assembling for the purpose of gambling to which he pleaded guilty, and assembling for the purpose of violating the Georgia Controlled Substances Act, to which he pleaded not guilty. He was convicted on the second charge and sentenced to pay a fine of $220 or serve 66 days in jail. The fine was paid.

*489 Application for certiorari was made, sanctioned and denied. Applicant appeals. Held:

1. Under Pace v. City of Atlanta, 135 Ga. App. 399 (218 SE2d 128), applicant's constitutional attacks upon the ordinances may have been meritorious if said constitutional attacks had been properly raised at the first opportunity. It is shown here that said constitutional attacks were not raised in the recorder's court. Such cases as Galfas v. Ailor, 206 Ga. 76 (1) (55 SE2d 582); Cheek v. White, 204 Ga. 321 (49 SE2d 819); Smith v. Mayor &c. of Macon, 202 Ga. 68, 70 (42 SE2d 128); Brockett v. Maxwell, 200 Ga. 213 (3) (36 SE2d 638); Martin v. State, 199 Ga. 731 (35 SE2d 151); Thompson v. Allen, 195 Ga. 733, 734 (1) (25 SE2d 423); Edwards v. McNair & Sellers, 152 Ga. 486 (110 SE 280), hold that no question of constitutional law is properly presented where the question is not raised at the first opportunity. It has been held that the failure to raise such constitutional attacks at the first opportunity amounts to a waiver. See Western & A. R. v. Michael, 172 Ga. 561, 566 (158 SE 426); Hazelhurst v. Southern Fruit Distrib., 46 Ga. App. 453 (1) (167 SE 898); Garland v. State, 101 Ga. App. 395, 396 (2), 400 (114 SE2d 176).

2. But the case before us is moot inasmuch as the defendant paid his fine before ever attempting a review by certiorari from the recorder's court. The trial court therefore did not err in affirming the recorder. See Savage v. State, 24 Ga. App. 550 (101 SE 711); Blakey v. State, 31 Ga. App. 157 (120 SE 16); Poppell v. State, 114 Ga. App. 309 (151 SE2d 181); Hayes v. State, 116 Ga. App. 260 (157 SE2d 30).

Appeal dismissed. Deen, P. J., and Stolz, J., concur.