DAVENPORT
v.
The STATE.
No. A09A1619.
Court of Appeals of Georgia.
January 27, 2012.Head, Thomas, Webb & Willis, William C. Head, Atlanta, for appellant.
Barry Edward Morgan, Sol.-Gen., Joseph W. Hudson, Asst. Sol.-Gen., for appellee.
PHIPPS, Presiding Judge.
Emily Davenport was convicted of driving under the influence of alcohol. In Davenport, v. State,[1] she appealed from the conviction, challenging the trial court's denial of her motion for an order authorizing the issuance of a subpoena to an out-of-state witness.[2] In denying Davenport's motion, the trial court determined that the out-of-state witness's testimony was not necessary and material to the case.[3] We affirmed the judgment.[4]
The Supreme Court of Georgia vacated our judgment and remanded the case to us with direction.[5] The Court held that we erred in stating that Davenport was required to make a showing that the out-of-state witness was a "necessary and material" witness.[6] The Court explained that, under OCGA § 24-10-94, the Georgia trial court is required to "determine only whether the out-of-state witness is a `material witness' in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia."[7] Whether the witness is "necessary and material," the Court further explained, "is one of the determinations that must be made under OCGA § 24-10-92(b) by the judge in the county where the out-of-state witness is located."[8]
Because the court below did not apply the proper statute in this case,[9] we remand the case for the court to apply the correct statute and revisit Davenport's motion for an order authorizing the issuance of the out-of-state *458 subpoena.[10] If the trial court determines that the witness is a material witness, then it must consider whether it should have issued a certificate in this case and, if so, whether Davenport is entitled to a new trial or a new trial conditioned on the issuance by the out-of-state court of a subpoena to compel the appearance of the witness in Georgia.[11] If the trial court determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Davenport may file a timely appeal from that determination.[12]
Judgment affirmed on condition and case remanded with direction.
DILLARD and BOGGS, JJ., concur.
NOTES
[1] 303 Ga.App. 401, 693 S.E.2d 510 (2010).
[2] Id.
[3] The trial court expressly incorporated the reasoning and legal analysis set forth in the order in another case pending below, which order included the "necessary and material" statutory language.
[4] Davenport, supra at 403, 693 S.E.2d 510.
[5] Davenport v. State, 289 Ga. 399, 404, 711 S.E.2d 699 (2011).
[6] Id. at 402, 711 S.E.2d 699.
[7] Id.
[8] Id.
[9] See id. at 404, 711 S.E.2d 699.
[10] See Spann v. State, 310 Ga.App. 575, 576(1), 713 S.E.2d 722 (2011).
[11] Id.; DiMauro v. State, 310 Ga.App. 526, 529(2), 714 S.E.2d 105 (2011).
[12] See Spann, supra; DiMauro, supra.