
    A09A1619.
    DAVENPORT v. THE STATE.
    (722 SE2d 457)
   PHIPPS, Presiding Judge.

Emily Davenport was convicted of driving under the influence of alcohol. In Davenport v. State, 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. 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. We affirmed the judgment.

The Supreme Court of Georgia vacated our judgment and remanded the case to us with direction. 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. 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.” 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.”

Because the court below did not apply the proper statute in this case, 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 subpoena. 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. 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.

Decided January 27, 2012.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Barry E. Morgan, Solicitor-General, Joseph W. Hudson, Assistant Solicitor-General, for appellee.

Judgment affirmed on condition and case remanded with direction.

Dillard and Boggs, JJ., concur. 
      
       303 Ga. App. 401 (693 SE2d 510) (2010).
     
      
       Id.
     
      
       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.
     
      
      
        Davenport, supra at 403.
     
      
      
        Davenport v. State, 289 Ga. 399, 404 (711 SE2d 699) (2011).
     
      
       Id. at 402.
     
      
       Id.
     
      
       Id.
     
      
       See id. at 404.
     
      
       See Spann v. State, 310 Ga. App. 575, 576 (1) (713 SE2d 722) (2011).
     
      
       Id.; DiMauro v. State, 310 Ga. App. 526, 529 (2) (714 SE2d 105) (2011).
     
      
       See Spann, supra; DiMauro, supra.
     