hearing rule in Georgia

2014Given Post, Buckley’s acknowledgment that NDD had engaged in the discovery process to some extent, the trial court could not circumvent the hearing requirement by relying on Post, Buckley’s unilateral assertions that NDD’s production was “limited” and “grossly inadequate and largely unresponsive.” See American Radiosurgery v. Rakes, 325 Ga. App. 161, 168 (2) ( 751 SE2d 898 ) (2013) (a trial court “may not impose the sanction of dismissal without a hearing where the [offending] party has responded to *439 discovery, albeit in a most tardy manner”) (punctuation omitted), quoting ASAP Healthcare,

2014Given Post, Buckley’s acknowledgment that NDD had engaged in the discovery process to some extent, the trial court could not circumvent the hearing requirement by relying on Post, Buckley’s unilateral assertions that NDD’s production was “limited” and “grossly inadequate and largely unresponsive.” See American Radiosurgery v. Rakes, 325 Ga. App. 161, 168 (2) ( 751 SE2d 898 ) (2013) (a trial court “may not impose the sanction of dismissal without a hearing where the [offending] party has responded to discovery, albeit in a most tardy manner”) (punctuation omitted), quoting ASAP Healthcare, 270

2014Given Post, Buckley’s acknowledgment that NDD had engaged in the discovery process to some extent, the trial court could not circumvent the hearing requirement by relying on Post, Buckley’s unilateral assertions that NDD’s production was “limited” and “grossly inadequate and largely unresponsive.” See American Radiosurgery v. Rakes, 325 Ga. App. 161, 168 (2) ( 751 SE2d 898 ) (2013) (a trial court “may not impose the sanction of dismissal without a hearing where the [offending] party has responded to *439 discovery, albeit in a most tardy manner”) (punctuation omitted), quoting ASAP Healthcare,

2014Given Post, Buckley’s acknowledgment that NDD had engaged in the discovery process to some extent, the trial court could not circumvent the hearing requirement by relying on Post, Buckley’s unilateral assertions that NDD’s production was “limited” and “grossly inadequate and largely unresponsive.” See American Radiosurgery v. Rakes, 325 Ga. App. 161, 168 (2) ( 751 SE2d 898 ) (2013) (a trial court “may not impose the sanction of dismissal without a hearing where the [offending] party has responded to *439 discovery, albeit in a most tardy manner”) (punctuation omitted), quoting ASAP Healthcare,

2014(Citation and punctuation omitted; emphasis in original.) Grant v. Kooby, 310 Ga. App. 483, 486-487 ( 713 SE2d 685 ) (2011) (expressly abrogating McCorvey and holding “it is no longer of any precedential utility” as to the hearing requirement).

2014(Citation and punctuation omitted; emphasis in original.) Grant v. Kooby, 310 Ga. App. 483, 486-487 ( 713 SE2d 685 ) (2011) (expressly abrogating McCorvey and holding “it is no longer of any precedential utility” as to the hearing requirement).

2013See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) ( 452 SE2d 117 ) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 ( 602 SE2d 341 ) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in

2013See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) ( 452 SE2d 117 ) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 ( 602 SE2d 341 ) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in

2013See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) ( 452 SE2d 117 ) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 ( 602 SE2d 341 ) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in

2013See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) ( 452 SE2d 117 ) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 ( 602 SE2d 341 ) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in

2013See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) ( 452 SE2d 117 ) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 ( 602 SE2d 341 ) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in

2013See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) ( 452 SE2d 117 ) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 ( 602 SE2d 341 ) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in

2024See Barranco v. Welcome Years, Inc., 260 Ga. App. 456, 458 ( 579 SE2d 866 ) (2003) (party waived strict compliance with contract provision by its actions); Hill v. Century 21 Max Stancil Realty, Inc., 187 Ga. App. 754, 755 (1) ( 371 SE2d 217 ) (1988) (“A waiver of conditions precedent can be implied by the conduct of the parties.”) (citation and punctuation omitted); Turner Outdoor Advertising, Ltd. v. Fidelity East Financial, Inc., 185 Ga. App. 815, 817 ( 366 SE2d 201 ) (1988) (“[T]he performance of a condition precedent may be waived.”).

2024See Barranco v. Welcome Years, Inc., 260 Ga. App. 456, 458 ( 579 SE2d 866 ) (2003) (party waived strict compliance with contract provision by its actions); Hill v. Century 21 Max Stancil Realty, Inc., 187 Ga. App. 754, 755 (1) ( 371 SE2d 217 ) (1988) (“A waiver of conditions precedent can be implied by the conduct of the parties.”) (citation and punctuation omitted); Turner Outdoor Advertising, Ltd. v. Fidelity East Financial, Inc., 185 Ga. App. 815, 817 ( 366 SE2d 201 ) (1988) (“[T]he performance of a condition precedent may be waived.”).

2024See Collier v. State, 307 Ga. 363, 367-368 (1) ( 834 SE2d 769 ) (2019) (clarifying that right to direct appeal from plea is not limited to cases where issues on appeal can be resolved by facts appearing in the record); Kennedy v. Kohnle, 303 Ga. 95, 100 (2) (a) ( 810 SE2d 543 ) (2018) (whether a plea gives rise to a direct or collateral consequence, a claim of ineffective assistance of counsel in connection with the plea must be evaluated under the two-prong test set forth in Strickland).

2024See Collier v. State, 307 Ga. 363, 367-368 (1) ( 834 SE2d 769 ) (2019) (clarifying that right to direct appeal from plea is not limited to cases where issues on appeal can be resolved by facts appearing in the record); Kennedy v. Kohnle, 303 Ga. 95, 100 (2) (a) ( 810 SE2d 543 ) (2018) (whether a plea gives rise to a direct or collateral consequence, a claim of ineffective assistance of counsel in connection with the plea must be evaluated under the two-prong test set forth in Strickland).

2024See Barranco v. Welcome Years, Inc., 260 Ga. App. 456, 458 ( 579 SE2d 866 ) (2003) (party waived strict compliance with contract provision by its actions); Hill v. Century 21 Max Stancil Realty, Inc., 187 Ga. App. 754, 755 (1) ( 371 SE2d 217 ) (1988) (“A waiver of conditions precedent can be implied by the conduct of the parties.”) (citation and punctuation omitted); Turner Outdoor Advertising, Ltd. v. Fidelity East Financial, Inc., 185 Ga. App. 815, 817 ( 366 SE2d 201 ) (1988) (“[T]he performance of a condition precedent may be waived.”).

2024See Barranco v. Welcome Years, Inc., 260 Ga. App. 456, 458 ( 579 SE2d 866 ) (2003) (party waived strict compliance with contract provision by its actions); Hill v. Century 21 Max Stancil Realty, Inc., 187 Ga. App. 754, 755 (1) ( 371 SE2d 217 ) (1988) (“A waiver of conditions precedent can be implied by the conduct of the parties.”) (citation and punctuation omitted); Turner Outdoor Advertising, Ltd. v. Fidelity East Financial, Inc., 185 Ga. App. 815, 817 ( 366 SE2d 201 ) (1988) (“[T]he performance of a condition precedent may be waived.”).

2024See Barranco v. Welcome Years, Inc., 260 Ga. App. 456, 458 ( 579 SE2d 866 ) (2003) (party waived strict compliance with contract provision by its actions); Hill v. Century 21 Max Stancil Realty, Inc., 187 Ga. App. 754, 755 (1) ( 371 SE2d 217 ) (1988) (“A waiver of conditions precedent can be implied by the conduct of the parties.”) (citation and punctuation omitted); Turner Outdoor Advertising, Ltd. v. Fidelity East Financial, Inc., 185 Ga. App. 815, 817 ( 366 SE2d 201 ) (1988) (“[T]he performance of a condition precedent may be waived.”).

2024See Barranco v. Welcome Years, Inc., 260 Ga. App. 456, 458 ( 579 SE2d 866 ) (2003) (party waived strict compliance with contract provision by its actions); Hill v. Century 21 Max Stancil Realty, Inc., 187 Ga. App. 754, 755 (1) ( 371 SE2d 217 ) (1988) (“A waiver of conditions precedent can be implied by the conduct of the parties.”) (citation and punctuation omitted); Turner Outdoor Advertising, Ltd. v. Fidelity East Financial, Inc., 185 Ga. App. 815, 817 ( 366 SE2d 201 ) (1988) (“[T]he performance of a condition precedent may be waived.”).

2023Based on statements in Miller and Montgomery that LWOP sentences are not permitted for the “vast majority of juvenile offenders” and are allowed only for the “rarest of juvenile offenders . . . whose crimes reflect permanent incorrigibility,” this Court concluded that a sentencing court must do more than simply consider generally a juvenile offender’s “youth and attendant characteristics”; it also had to make a “distinct determination on the record” that the juvenile offender is “irreparably corrupt or 26 permanently incorrigible[.]” Veal v. State, 298 Ga. 691, 702-703 (5) (d) (784 SE2d 403) (

2023Based on statements in Miller and Montgomery that LWOP sentences are not permitted for the “vast majority of juvenile offenders” and are allowed only for the “rarest of juvenile offenders . . . whose crimes reflect permanent incorrigibility,” this Court concluded that a sentencing court must do more than simply consider generally a juvenile offender’s “youth and attendant characteristics”; it also had to make a “distinct determination on the record” that the juvenile offender is “irreparably corrupt or 26 permanently incorrigible[.]” Veal v. State, 298 Ga. 691, 702-703 (5) (d) (784 SE2d 403) (

2022However, because Drennon’s right-to- be-present claim was raised for the first time on appeal and because, as more fully explained below, we cannot easily reject that claim on the existing record, see Champ v. State, 310 Ga. 832, 844 (854 SE2d 706) (2021), we vacate the trial court’s judgment in part and remand the case for the trial court to hold a hearing and rule on Drennon’s constitutional claim in the first instance.

2022However, because Drennon’s right-to- be-present claim was raised for the first time on appeal and because, as more fully explained below, we cannot easily reject that claim on the existing record, see Champ v. State, 310 Ga. 832, 844 (854 SE2d 706) (2021), we vacate the trial court’s judgment in part and remand the case for the trial court to hold a hearing and rule on Drennon’s constitutional claim in the first instance.

2020As we have previously held, a TASER can be considered a deadly weapon in certain circumstances, see Eberhart v. State, 307 Ga. 254, 261 (2) (a) ( 835 SE2d 192 ) (2019), and whether the use of a TASER (or, for 27 that matter, any other object or device) constitutes a use of force that is intended or likely to cause death is a case-by-case determination that must account for how the device is used, how many times and for what duration, and under what circumstances.

2016See Stephens, supra, 291 Ga. at 839 (2).

2016See Stephens, supra, 291 Ga. at 839 (2).

2016See Evers v. Evers, 277 Ga. 132, 132 (1) ( 587 SE2d 22 ) (2003) (declining to impose hearing requirement where trial court denied motion for attorney fees under OCGA § 9-15-14).

2016See Evers v. Evers, 277 Ga. 132, 132 (1) ( 587 SE2d 22 ) (2003) (declining to impose hearing requirement where trial court denied motion for attorney fees under OCGA § 9-15-14).

2011After all, OCGA § 24-9-67.1 itself identifies no specific time by which a court must decide a motion to exclude expert testimony, except that it must decide any such motion “no later than the final pretrial conference contemplated under Code Section 9-11-16.” OCGA § 24-9-67.1 (d); see also Ford Motor Co. v. Gibson, 283 Ga. 398, 404 (5) ( 659 SE2d 346 ) (2008) (noting that “the time period within which the trial court was required to hold a hearing and rule on the [OCGA § 24-9-67.1] motion had already passed”) (emphasis supplied).

2011After all, OCGA § 24-9-67.1 itself identifies no specific time by which a court must decide a motion to exclude expert testimony, except that it must decide any such motion “no later than the final pretrial conference contemplated under Code Section 9-11-16.” OCGA § 24-9-67.1 (d); see also Ford Motor Co. v. Gibson, 283 Ga. 398, 404 (5) ( 659 SE2d 346 ) (2008) (noting that “the time period within which the trial court was required to hold a hearing and rule on the [OCGA § 24-9-67.1] motion had already passed”) (emphasis supplied).

2000See Division 2, supra. Nor was there any explanation of why six months had not been sufficient time to investigate any prejudice due to pretrial publicity.

1996See Allen v. State, 199 Ga. App. 365, 368 ( 405 SE2d 94 ) (1991); Wilson, supra at 78 .

1996See Allen v. State, 199 Ga. App. 365, 368 ( 405 SE2d 94 ) (1991); Wilson, supra at 78 .

1996Pretermitting whether this brief hearing was a critical stage of the trial at which Parker had a right to be present (see Smith v. State, 209 Ga. App. 699, 700 ( 434 SE2d 528 ) (1993); Stone v. State, 177 Ga. App. 750, 751 ( 341 SE2d 280 ) (1986)), we find the evidence was sufficient to support a finding that Parker knew about the hearing and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity.

1996Pretermitting whether this brief hearing was a critical stage of the trial at which Parker had a right to be present (see Smith v. State, 209 Ga. App. 699, 700 ( 434 SE2d 528 ) (1993); Stone v. State, 177 Ga. App. 750, 751 ( 341 SE2d 280 ) (1986)), we find the evidence was sufficient to support a finding that Parker knew about the hearing and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity.

1996Pretermitting whether this brief hearing was a critical stage of the trial at which Parker had a right to be present (see Smith v. State, 209 Ga. App. 699, 700 ( 434 SE2d 528 ) (1993); Stone v. State, 177 Ga. App. 750, 751 ( 341 SE2d 280 ) (1986)), we find the evidence was sufficient to support a finding that Parker knew about the hearing and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity.

1996Pretermitting whether this brief hearing was a critical stage of the trial at which Parker had a right to be present (see Smith v. State, 209 Ga. App. 699, 700 ( 434 SE2d 528 ) (1993); Stone v. State, 177 Ga. App. 750, 751 ( 341 SE2d 280 ) (1986)), we find the evidence was sufficient to support a finding that Parker knew about the hearing and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity.

1994See Bridges v. State, 208 Ga. App. 555, 556 ( 431 SE2d 164 ).

1994See Bridges v. State, 208 Ga. App. 555, 556 ( 431 SE2d 164 ).

1993Citing Dawson v. State, 258 Ga. 380, 381 (2), supra and its progeny, the trial court held that defendant has waived the claim of ineffectiveness by appellate counsel’s failure to request a hearing on that claim.

1993Citing Dawson v. State, 258 Ga. 380, 381 (2), supra and its progeny, the trial court held that defendant has waived the claim of ineffectiveness by appellate counsel's failure to request a hearing on that claim.

1985See generally Schofield v. Little, 2 Ga. App. 286, 287 (9) ( 58 SE 666 ).

1985See generally Schofield v. Little, 2 Ga. App. 286, 287 (9) ( 58 SE 666 ).