FOURTH DIVISION

DILLARD, C. J.,

DOYLE, P. J., and MERCIER, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten days

of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

June 18, 2018

In the Court of Appeals of Georgia

A18A0255. LEVIN v. THE STATE.

MERCIER, Judge.

Following the reversal of his convictions for kidnapping with bodily injury,

aggravated assault, possession of a firearm during the commission of a crime, and

making harassing phone calls, Gregory Levin appeals the denial of his motion in

autrefois convict (double jeopardy) in connection with the kidnapping charge, the

denial of his motion to dismiss the indictment (on constitutional speedy trial grounds)

regarding all of the charges, and the denial of his motion to recuse or disqualify a

judge. For the reasons that follow, we affirm.

The complicated procedural history of this case is, for the most part, set out in

the opinion in Levin v. State, 334 Ga. App. 71 (778 SE2d 238) (2015). (Additional

details will be added as needed.)
In 1994, Gregory A. Levin was tried by a jury [in the Superior Court of

Douglas County] and convicted of kidnapping with bodily injury, two

counts of aggravated assault, burglary, cruelty to children, aggravated

battery, possession of a firearm during the commission of a crime, and

making harassing phone calls. The trial court merged the aggravated

battery conviction into the kidnapping with bodily injury conviction and

sentenced Levin to a total of life plus 48 years in confinement.

1 Levin

appealed, and this Court reversed his conviction for making harassing

telephone calls based on an improper verdict form, and his convictions

for aggravated assault and possession of a firearm based on erroneous

jury charges. Levin v. State, 222 Ga. App. 123, 126-127 (5), (6) (473

SE2d 582) (1996).

In 2014 [in a habeas corpus appeal], the Supreme Court of Georgia

reversed Levin’s conviction for kidnapping with bodily injury and

vacated his life sentence based on the State’s failure to satisfy the

asportation requirement as set forth in Garza v. State, 284 Ga. 696 (670

SE2d 73) (2008). Levin v. Morales, 295 Ga. 781 (764 SE2d 145) (2014).

1The trial court imposed the following sentences: Count 1- Kidnapping with

bodily injury - Life; Count 2- Aggravated assault - 20 years, consecutive; Count 3 -

Burglary - 20 years, consecutive; Count 4 - Simple assault (as lesser included offense

of Cruelty to children) - 12 months, consecutive; Count 5 - Simple assault (as lesser

included offense of Aggravated assault) - 12 months, consecutive; Count 6 -

Aggravated battery - merged into Count 1; Count 7 - Possession of a firearm during

the commission of a crime - 5 years, consecutive; and Count 8 - Making harassing

phone calls - 12 months, consecutive. The acts alleged in Counts 1 through 7 were

committed on or about August 13, 1993; the acts alleged in Count 8 were committed

on or about April 21 and April 22, 1993.

2
The Court also noted that the aggravated battery conviction had been

merged into the kidnapping conviction and ordered, “[n]ow that the

kidnapping conviction has been reversed, on remand the trial court will

need to revisit sentencing [Levin] on the conviction for aggravated

battery.” Id. at 784.

On remand, the trial court conducted a resentencing hearing and on the

day of the hearing, Levin filed a plea in bar on double jeopardy grounds,

seeking dismissal of the aggravated battery count of the indictment. The

trial court denied the plea in bar, and sentenced Levin to 20 years in

confinement for the aggravated battery conviction.

Levin v. State, 334 Ga. App. 71, 71-72 (778 SE2d 238) (2015) (footnotes omitted).

2

Levin appealed the trial court’s denial of his plea in bar (double jeopardy) on the

aggravated battery conviction and the order imposing the new sentence on that charge.

Id. This Court affirmed the trial court’s decision. Id. The remittitur in that case was

filed in the Superior Court of Douglas County on February 22, 2016.

On December 21, 2016, Levin was re-arraigned on the charges of kidnapping

with bodily injury, aggravated assault, possession of a firearm during the commission

of a crime, and making harassing phone calls. The same day, he filed the motion in

2 The underlying facts of this case are also set out in Levin v. State, 334 Ga.

App. at 72-73. A recitation of the facts is unnecessary for a resolution of the issues

presented in this appeal.

3
autrefois convict, a plea in bar/motion to dismiss on constitutional speedy trial

grounds, and a motion for disqualification and/or recusal of the judge. This appeal is

from the orders denying Levin’s motions.

1. Levin contends that the trial court erred in denying his motion in autrefois

convict concerning the kidnapping with bodily injury charge. He asserts that because

the Supreme Court of Georgia reversed his conviction on that charge based on

insufficiency of the evidence, double jeopardy bars retrial. We disagree.

It is true that “once a reviewing court reverses a conviction solely for

insufficiency of the evidence to sustain the jury’s verdict of guilty, double jeopardy

bars retrial.” Green v. State, 291 Ga. 287, 288 (1) (728 SE2d 668) (2012). This

principle, however, does not squarely answer the issue presented here, which is: where

a reviewing court determines that the evidence presented at trial has been rendered

insufficient only by a post-trial change in law, does double jeopardy preclude the

government from retrying the defendant?

As set out above, Levin’s 1994 conviction for kidnapping with bodily injury was

affirmed. Levin v. State, 222 Ga. App. 123. Then, in Levin’s 2012 habeas corpus

appeal, Levin v. Morales, 295 Ga. 781, the Supreme Court reversed the kidnapping

with bodily injury conviction and vacated the sentence entered thereon, finding that

4
there was insufficient evidence of asportation under Garza v. State, 284 Ga. 696, 702

(1) (670 SE2d 73) (2008) (establishing new factors for assessing the asportation

element of Georgia’s pre-2009 kidnapping statute). Levin v. Morales, 295 Ga. at 783-

784. In denying Levin’s motion in autrefois, the trial court concluded that the reversal

of the kidnapping with bodily injury conviction was based on a post-trial change in the

law and thus did not implicate double jeopardy principles.

The parties point to, and we find, no binding authority precisely on point. In

fact, the question appears to be an “open” one under Georgia law. See Levin v. State,

334 Ga. App. at 75 (2), citing Levin v. Morales, 295 Ga. at 784-786 (Blackwell, J.,

concurring). In his concurrence in Levin v. Morales, Justice Blackwell wrote the

following:

I write separately only to note some uncertainty in our law about the

extent to which Gregory A. Levin and others like him may be retried, their

convictions having been set aside on habeas or appeal. When a

conviction is set aside for a mere trial error — inaccurate jury

instructions, for instance, or the admission of inadmissible evidence —

the State generally is permitted a retrial, and the constitutional prohibition

of double jeopardy does not preclude it. See State v. Caffee, 291 Ga. 31,

34 (3) (728 SE2d 171) (2012). When a conviction is set aside, however,

upon the failure of the State to have adduced evidence legally sufficient

to sustain the conviction, the constitutional prohibition of double

5
jeopardy ordinarily bars a retrial. See Burks v. United States, 437 U. S.

1 (98 SCt 2141, 57 LE2d 1) (1978). See also Green v. State, 291 Ga.

287, 288 (1) (728 SE2d 668) (2012); Prater v. State, 273 Ga. 477, 481

(4) (545 SE2d 864) (2001). Today, we hold that the State failed to

present evidence legally sufficient to sustain the conviction of Levin for

kidnapping, and on that basis, we direct that his conviction must be set

aside. If this were an ordinary sufficiency case, our decision would

preclude a retrial. But it might not be so ordinary.

Levin v. Morales, 295 Ga. at 784. Justice Blackwell explained that when the State tried

Levin for kidnapping with bodily injury in 1994, before Garza was decided, the

prosecuting attorneys had no reason to know that anything more than slight movement

would be necessary to prove asportation, and that:

When the State can know what proof the law requires, but fails to offer

such proof at trial, the State ought not have another chance to convict the

accused. But when the State relies on a longstanding and settled

understanding of the law, and it offers evidence sufficient to carry its

burden consistent with that understanding — only to have that

understanding suddenly upended years later by an appellate court

undertaking a course correction — it is not so clear that the State should

be denied a second chance.

Levin v. Morales, 295 Ga. at 785. In his concurrence, Justice Blackwell cited cases

from other jurisdictions that hold:

6
where a reviewing court determines that the evidence presented at trial has

been rendered insufficient only by a post-trial change in law, double

jeopardy concerns do not preclude the government from retrying the

defendant. United States v. Ford, 703 F3d 708, 711 (II) (A) (4th Cir.

2013) (citations omitted). See also United States v. Wacker, 72 F3d

1453, 1465 (II) (A) (10th Cir. 1996); United States v. Weems, 49 F3d

528, 531 (II) (9th Cir. 1995); State v. Liberty, 370 SW3d 537, 554 (IV)

(Mo. 2012); State v. Drupals, 306 Conn. 149, 49 A3d 962, 976, n. 12

(Conn. 2012).

Levin v. Morales, 295 Ga. at 785-786. Justice Blackwell concluded that the Court was

not required to resolve the issue at that time, though, inasmuch as the prosecuting

attorneys in Levin’s case may “not prefer to retry him.” Id. at 786. The issue must

now be resolved.

While this Court is not bound by decisions of the Eleventh Circuit construing

federal law, those decisions are persuasive authority. Perez v. State, 283 Ga. 196, 198,

199 (657 SE2d 846) (2008). In United States v. Robison, 505 F3d 1208 (11th Cir.

2007), where there was a post-trial change in the definition of a key element of a

criminal offense, the Eleventh Circuit held that the definition used in the defendant’s

trial was no longer good law and it reversed his convictions, but it held that the

7
government could retry the defendant under the correct standard. Id. at 1215-1216 (II)

(A), 1224-1225 (II) (E), 1229.

Other circuits have reached the same result. In United States v. Ford, 703 F3d

708, 711 (II) (A) (4th Cir. 2013), which cited Robison and found that double jeopardy

did not bar retrying Ford after his conviction was reversed for insufficient evidence

because of a post-trial change in the law, the court pointed out that:

[o]ther circuits considering the issue agree that where a reviewing court

determines that the evidence presented at trial has been rendered

insufficient only by a post-trial change in law, double jeopardy concerns

do not preclude the government from retrying the defendant. E.g., United

States v. Robison, 505 F.3d [at 1225]; United States v. Wacker, 72 F.3d

1453, 1465 (10th Cir. 1996); United States v. Weems, 49 F.3d 528, 531

(9th Cir. 1995); see also United States v. Bruno, 661 F.3d 733, 742-43

& n.2 (2d Cir. 2011) (facing a similar issue and collecting cases,

including [United States v.] Ellyson [326 F.3d 522 (4th Cir. 2003)], but

deciding the case on other grounds); United States v. Green, 139 F.3d

1002, 1004 (4th Cir. 1998) (holding that vacatur of a judgment based on

a post-judgment change in law is “akin to a reversal for trial error”).

In Ford, the Fourth Circuit court quoted with approval the following reasoning:

[T]he double jeopardy concerns that preclude the government from

having a second opportunity to build a case against a defendant when it

failed to do so the first time are not present here. Any insufficiency in the

8
proof was caused by the subsequent change in law . . . , not the

government’s failure to muster evidence. Similar reasoning to that in

Lockhart [v. Nelson, 488 U. S. 33, 34, 42 (109 S.Ct. 285, 102 LE2d 265)

(1988)], applies here. The government presented its evidence under the

wrong standard, i.e., it presented evidence correctly believing, based on

the law at the time, that it was enough to prove the images “appeared” to

depict minors. If the evidence in the record is insufficient to support a

verdict under [a later-decided case], it is not because of the government’s

failure of proof but because of the changes brought by [the later-decided

case].

Ford, supra at 711 (II) (A) (punctuation omitted). We find that reasoning sound.

Applying it in the case before us, we hold that the trial court did not err by denying

Levin’s motion for autrefois convict.

2. Levin contends that the trial court erred by denying his motion to dismiss the

indictment when his constitutional right to a speedy trial was violated. We find no

abuse of discretion.

“Constitutional speedy trial claims are evaluated under the two-part framework

set out in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and

Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992). See

9
Ruffin v. State, 284 Ga. 52 (2) (663 SE2d 189) (2008).” Leslie v. State, 301 Ga. 882,

885 (2) (b) (804 SE2d 351) (2017).

As for the first tier of the analysis, it must be determined if the delay in

question is presumptively prejudicial. If not, there has been no violation

of the constitutional right to a speedy trial and the second tier of analysis

is unnecessary. See Barker v. Wingo, 407 U. S. at 530[.] If, however, the

delay is determined to be presumptively prejudicial, then the court must

engage the second tier of analysis by applying a four-factor balancing test

to the facts of the case. Those four factors include: (1) whether the delay

is uncommonly long; (2) reason for delay/whether the government or the

defendant is more responsible; (3) defendant’s assertion of the right to

a speedy trial; and (4) the prejudice to the defendant.

Rafi v. State, 289 Ga. 716, 717 (2) (715 SE2d 113) (2011) (citations and punctuation

omitted). “[W]e must accept the factual findings of the trial court unless they are

clearly erroneous, and we must accept the ultimate conclusion of the trial court unless

it amounts to an abuse of discretion.” Leslie, supra; see Rafi, supra.

Because the kidnapping with bodily injury charge and the remaining charges

(aggravated assault, possession of a firearm during the commission of a crime, and

making harassing phone calls) were reversed at different times and thus involve two

10
different time periods with respect to the speedy trial issue, we will consider Levin’s

speedy trial contentions in two parts.

(a) Kidnapping with bodily injury

(i) Threshold inquiry

In connection with the right to a speedy trial, the court measures the delay from

the time the right attaches. State v. Bonawitz, 339 Ga. App. 299, 301 (2) (793 SE2d

191) (2016). Where, as here, there has been an appeal or a dismissal of the charges

and a subsequent re-indictment, the court measures the delay from the filing of the

remittitur in the trial court. See Oni v. State, 285 Ga. App. 342, 343 (2) (646 SE2d

312) (2007). In this case, the remittitur of the habeas decision was received in the

Superior Court of Douglas County in November 2014. On January 14, 2015, Levin

was resentenced on the aggravated battery conviction that had previously merged with

the kidnapping with bodily injury conviction. He filed a notice of appeal on February

13, 2015 regarding the resentencing, at which time the superior court lost jurisdiction

of the case. See Chambers v. State, 262 Ga. 200, 201 (1) (415 SE2d 643) (1992).

Remittitur from that appeal was received in the superior court on February 22, 2016.

Thus, the State was able to retry Levin on the kidnapping with bodily injury charge

from November 12, 2014 through February 13, 2015, and again from February 22,

11
2016 through December 21, 2016 (when Levin filed his motion for plea in bar), which

period totaled approximately 13 months. A delay of one year is sufficient to raise the

presumption of prejudice and to warrant a more searching inquiry. Ruffin v. State, 284

Ga. 52, 55 (2) (a) (663 SE2d 189) (2008). Because the delay in this case was more

than one year, it was presumptively prejudicial, and the trial court did not err in so

finding. See generally State v. Porter, 288 Ga. 524, 527 (2) (705 SE2d 636) (2011).

(ii) The Barker factors

(A) Whether the delay was uncommonly long. “[A] delay is considered

uncommonly long under the test to the extent to which the delay stretches beyond the

bare minimum needed to trigger judicial examination of the claim.” Taylor v. State, 338

Ga. App. 804, 807 (1) (a) (792 SE2d 101) (2016) (citation omitted). The trial court

found that the delay of just over a year was not uncommonly long. It did not abuse its

discretion in making this finding and in weighing thisfactor against Levin. See generally

Rafi, supra at 717-718 (2); compare Bonawitz, supra at 302 (3) (a).

(B) Reasons for the delay. The trial court found that the State’s failure to retry

Levin on the kidnapping with bodily injury charge before December 21, 2016 was not

due to a deliberate attempt to hinder the defense, but was attributable to its docket and

other priorities, and that Levin’s filing of an appeal of the resentencing also contributed

12
to the delay. The court did not err in weighing this factor equally against the State and

Levin. See generally Smith v. State, 338 Ga. App. 62, 69-70 (1) (b) (705 SE2d 636)

(2016).

(C) Defendant’s assertion of the right. “While the state has a duty to bring the

defendant to [a] speedy trial, the defendant has a responsibility to assert that right.”

Nusser v. State, 275 Ga. App. 896, 898 (622 SE2d 105) (2005) (citation and

punctuation omitted). “The relevant question for purposes of the third speedy trial

factor is whether the accused has asserted the right to a speedy trial ‘in due course.’

This factor requires a close examination of the procedural history of the case with

particular attention to the timing, form, and vigor of the accused’s demands to be tried

immediately.” Leslie, supra at 886 (2) (iii) (citations and punctuation omitted).

The trial court found that Levin did not take affirmative steps to demand retrial

or move for the kidnapping with bodily injury charge to be dismissed until

approximately 11 months after that conviction was vacated.

Levin argues that the trial court failed to consider various factors related to his

failure to promptly assert his right to a speedy trial (e.g., he was without counsel for

some of the relevant time period, he was incarcerated, he believed a speedy trial

demand had been made, and he believed he would not be retried). But Justice

13
Blackwell’s concurrence in Levin’s habeas case (decided in 2014) indicated that the

question of whether the State could retry Levin on the kidnapping with bodily injury

charge was not settled. See Levin v. Morales, 295 Ga. at 785-786. And, at the

resentencing hearing (for aggravated battery) in January 2015, the State announced that

it was not dismissing the remaining charges and that, if the resentencing outcome was

unfavorable, it would pursue retrial on those charges. However, Levin did not file his

plea in bar on speedy trial grounds on the kidnapping charge until December 21, 2016.

The trial court found that the demand was not made in due course and that Levin’s

failure to assert the right earlier weighed against him. See generally Nusser, supra. The

trial court did not clearly err in so weighing this factor.

(D) Prejudice to the defendant. Finding that Levin failed to show any prejudice

resulting from the delay between the filing of the remittitur and the filing of his plea in

bar, the trial court weighed this factor against Levin. We find no error here, either.

The test for whether a defendant has been prejudiced requires the court

to consider three interests: preventing oppressive pretrial incarceration,

minimizing a defendant’s anxiety and concern, and limiting the possibility

that the defense will be impaired. The most important component of the

prejudice analysis is whether the defendant’s ability to raise a defense

was impaired by the delay.

14
Nusser, supra at 900 (citations and punctuation omitted).

The trial court found that the delay did not cause oppressive pretrial

incarceration because Levin was already serving a lengthy prison sentence for his

convictions on aggravated battery and other charges, and Levin made no showing that

the delay caused any unusual anxiety or concern or that his defense was impaired by

the delay. The trial court did not err by weighing this factor against Levin. See

Marshall v. State, 286 Ga. 446, 447 (1) (d) (689 SE2d 283) (2010).

(b) Aggravated assault, possession of a firearm during the commission of

a felony, and making harassing phone calls

(i) Threshold inquiry

The remittitur for the direct appeal on these charges was filed in the trial court

on July 30, 1996. With the exception of the time period from February 13, 2015 to

February 22, 2016 (when the Douglas County court lacked jurisdiction), the delay of

approximately 19 years was presumptively prejudicial. See generally Porter, supra.

(ii) The Barker factors

15
(A) Whether the delay was uncommonly long. The trial court did not err in

finding that the delay of approximately 19 years was uncommonly long and in weighing

this factor against the State. See Bonawitz, supra.

(B) Reasons for the Delay. The trial court’s finding that Levin did nothing that

affirmatively prevented the State from bringing him to trial on these charges was not

clearly erroneous, and the court did not err in weighing this factor against the State.

See generally Franklin v. State, 305 Ga. App. 354, 359-360 (1) (b) (699 SE2d 575)

(2010).

(C) Defendant’s assertion of the right. Applying the same analysis to these

charges as it did the kidnapping with bodily injury charge, the trial court found that

Levin did not take affirmative steps to be retried or move for these charges to be

dismissed on speedy trial grounds until 2015,

3 which was approximately 19 years after

the convictions were reversed in Levin v. State, 222 Ga. App. at 126-127 (5), (6). The

1996 opinion in the direct appeal stated that these convictions were being reversed

3 Levin first filed a plea in bar on constitutional speedy trial grounds as to these

charges in January 2015. Levin filed a second plea in bar on speedy trial grounds

regarding these charges in December 2016. His appeal is from the denial of the second

plea in bar.

16
based on trial errors, which put Levin on notice that retrial would not be barred on

double jeopardy grounds. See generally Caffee, supra.

Levin asserts that the trial court abused its discretion in not considering the

mitigating factors presented during the hearing on the plea in bar (e.g., that he was not

represented by counsel for an extended period of time, that his lengthy incarceration

made it difficult to assert a speedy trial demand, that he believed that a statutory

speedy trial demand made before the first trial was valid, and that the State represented

that it would not retry him).

“We have acknowledged that the weight to be attributed to this factor may be

mitigated in some cases, and whether the circumstances of a particular case warrant

any mitigation is a question committed to the sound discretion of the trial court.” State

v. Buckner, 292 Ga. 390, 397 (3) (c) (738 SE2d 65) (2013) (citations omitted;

emphasis supplied); State v. Alexander, 295 Ga. 154, 159 (2) (c) (758 SE2d 289)

(2014). Levin cites no authority holding that the trial court was required to consider

the above-cited factors in mitigation, that it was required to include an analysis of such

factors in its written order, or that a trial court abuses its discretion when it fails to do

either. See generally Taylor v. State, 338 Ga. App. 804, 810 (1) (c) (792 SE2d 101)

17
(2016). Thus, Levin has not shown that the trial court’s finding was clearly erroneous

or that the court abused its discretion in weighing this factor against him.

(D) Prejudice to the defendant. From 1996 (when his convictions for

aggravated assault, possession of a firearm during the commission of a crime, and

making harassing phone calls were reversed) until 2014, Levin remained convicted of

and was serving a life sentence for kidnapping with bodily injury. He also remained

convicted on one count of burglary and two counts of simple assault, for which he

was sentenced to 20 years (consecutive) and 24 months (consecutive), respectively.

At the time of the resentencing hearing in January 2015, Levin was serving the 20-year

burglary sentence and the 24-month simple assault sentences; he had been in custody

since 1993. At the time of the March 2017 hearing on the plea in bar, Levin was serving

the 20-year sentence imposed in January 2015 for the aggravated battery conviction.

Under the circumstances, Levin did not demonstrate “any prejudice resulting from the

delay, beyond the normal levels of anxiety and concern present in any criminal case.”

Marshall, supra. The trial court did not clearly err in its finding and did not abuse its

discretion in weighing this factor against Levin.

In sum, in balancing the four Barker factors, the trial court concluded that the

relevant factors weighed more heavily against Levin.

18
Perhaps some other judge might have balanced the factors differently, but

that is not the standard of appellate review. The balancing undertaken by

the trial court was reasoned and reasonable — especially in light of its

findings [regarding] prejudice — and for that reason, we cannot say that

it amounts to an abuse of discretion.

Buckner, supra at 399 (3) (e) (citation omitted). The trial court did not err by denying

Levin’s motion for discharge and acquittal on constitutional speedy trial grounds. See

generally Taylor, supra at 812-813 (1) (e); Smith v. State, 336 Ga. App. 229, 236 (2)

(c) (784 SE2d 76) (2016); Nairon v. State, 215 Ga. App. 76 (1) (449 SE2d 634)

(1994).

3. Levin contends that the trial court erred by denying his motion to disqualify

or recuse the judge in his case. He asserts that because he filed a writ of mandamus

against the judge for failing to timely dispose of the charges that were reversed in Levin

v. State, 222 Ga. App. at 126, the judge’s impartiality might reasonably be questioned.

Motions to recuse or disqualify a judge are governed by Uniform Superior

Court Rule 25 et seq. In sum, USCR 25.1 pertinently requires that the motion be

accompanied by an affidavit, and that the motion be filed and presented to the judge

within a specified number of days, unless good cause is shown for the failure to meet

the time requirements. USCR 25.2 sets forth the required contents of the affidavit.

19
USCR 25.3 pertinently provides that when a judge is presented with a motion to recuse

or disqualify, accompanied by an affidavit, the judge shall immediately determine the

timeliness of the motion and whether recusal would be warranted; if it finds that the

motion is timely, that the affidavit is sufficient and that recusal would be warranted,

another judge shall be assigned to hear the motion to recuse.

“If all three conditions precedent set forth in USCR 25.3 are not met, the trial

judge shall deny the motion on its face as insufficient.” Penland v. Corlew, 248 Ga.

App. 564, 568 (2) (547 SE2d 306) (2001) (citations, punctuation and emphasis

omitted). This Court reviews the denial of a motion to recuse for abuse of discretion.

See In re Longino, 281 Ga. App. 599, 602 (2) (636 SE2d 683) (2006).

In this case, the trial court found that the conditions precedent had not been

met, as the motion was untimely, was not properly presented to the court, and was not

accompanied by an affidavit. The record supports the trial court’s findings, and Levin

has shown no abuse of discretion. See Long v. State, 324 Ga. App. 882, 895 (5) (752

SE2d 54) (2013) (because the motion to recuse was untimely, the trial court did not

err by denying it); see generally Baptiste v. State, 229 Ga. App. 691, 697 (494 SE2d

530) (1997) (noting that even when the defendant sued the trial judge in connection

20
with the case before the judge, such suit did not provide grounds for recusal as it was

not a statutory ground for recusal).

Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur.

21