Perry v. City of Hampton

Cooper, Judge. We granted appellant’s discretionary appeal from a superior court order affirming his conviction in the City of Hampton Municipal Court for driving under the influence of alcohol. OCGA § 40-6-391. On appeal appellant challenges the sufficiency of the evidence and the trial court’s failure to obtain from him a written waiver of his right to a jury trial. 1. Appellant’s first enumeration of error is that the evidence was insufficient to support his conviction. It appears that the case in municipal court was transcribed; however, appellant failed to request in his notice of appeal to superior court that the transcript be included in the record. The record sent from superior court to this court contains a letter stating that there is no transcript. “In the absence of a transcript, or a record prepared from recollection or a stipulation of the case pursuant to OCGA § 5-6-41 (g, i), we cannot consider enumerations of error based on the evidence. [Cit.]” Sizemore v. State, 195 Ga. App. 548 (395 SE2d 669) (1990). 2. In his second enumeration of error, appellant contends that the municipal court lacked jurisdiction to try appellant because no written waiver of jury trial appears in the record. Appellant’s contention is controlled adversely to him by Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991) and Kolker v. State, 200 Ga. App. 72 (406 SE2d 514) (1991). Accordingly, the judgment of the superior court is affirmed. Judgment affirmed. Birdsong, P. J., and Pope, J., concur.