Dortch v. State

204 Ga. App. 822 (1992)

420 S.E.2d 778

DORTCH v. THE STATE.

A92A0638.

Court of Appeals of Georgia.

Decided June 25, 1992.

Reconsideration Denied July 7, 1992.

Richard T. Bridges, Russell T. Bridges, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

CARLEY, Presiding Judge.

Appellant was tried before a jury and found guilty of driving on the left side of a roadway in violation of OCGA § 40-6-45 and of driving under the influence in violation of OCGA § 40-6-391 (a) (1). He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.

1. Appellant moved for a continuance based upon the absence of a defense witness. However, appellant was unable to show that the absent witness had been served with a subpoena. Accordingly, there was no error in denying the motion for a continuance. Brown v. State, *823 169 Ga. App. 520, 521 (1) (313 SE2d 777) (1984).

2. The evidence was sufficient to authorize a rational trior of fact to find proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. An enumeration of error predicated upon the giving of an Allen charge is without merit. The charge was not rendered coercive by the trial court's inclusion therein of the statement that the case would have "to be determined by some jury at some time...." Concepcion v. State, 200 Ga. App. 358 (1) (408 SE2d 130) (1991). The charge included the cautionary instruction that the trial court was "certainly not asking, nor suggesting, that any person on [the] jury give up honestly held convictions." See Willingham v. State, 134 Ga. App. 603, 607 (5a) (215 SE2d 521) (1975).

4. The trial court's failure to give appellant's requests to charge is enumerated as error. However, written requests to charge were not timely submitted to the trial court, who was not made aware of appellant's requests until after the charge had been given. "All requests to charge shall be ... submitted to the court ... at the commencement of trial...." Uniform Superior Court Rule 10.3. Accordingly, appellant's "requests were not timely submitted and it was not error for the court to refuse to give them." Curtis v. State, 224 Ga. 870, 874 (9) (165 SE2d 150) (1968).

5. Appellant's remaining enumerations of error have been considered and found to be either moot or meritless.

Judgments affirmed. Pope and Johnson, JJ., concur.