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Wilkins v. State

The prosecutor did not improperly comment on the defendant's right to remain silent by referring to defendant's refusal to give a blood sample when he was arrested.

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Defendant Lester Bebee Wilkins was convicted by a jury of two counts of arson in the first degree. At sentencing, the trial court merged Count 2 into Count 1. Wilkins appeals following the denial of his motion for new trial.

1. Relying on Cuzzort v. State, 271 Ga. 464 519 SE2d 687 1999, Wilkins contends the trial court erred by calling the case out of the order listed on the trial calendar. We find no error. Cuzzort clearly stands for the proposition that the trial judge has discretion under OCGA § 17-8-1 to call a case out of order. Id. at 465 3. Moreover, in order to secure a reversal on this basis, harm as well as an abuse of discretion must be shown. Rosenbrook v. State, 78 Ga. 111 2 1886; State v. Jessup, 187 Ga. App. 429, 430 370 SE2d 489 1988 physical precedent only; Merrill v. State, 130 Ga. App. 745, 747 1 204 SE2d 632 1974. The transcript in this case shows that both the prosecuting attorney and defense counsel announced ready for trial, and there is nothing in the record to show that Wilkins was prejudiced by the case being called out of order. This enumeration is without merit.

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