Baker v. State

Court of Appeals of Georgia

Baker v. State

442 S.E.2d 815, 212 Ga. App. 731, 94 Fulton County D. Rep. 2992, 1994 Ga. App. LEXIS 375

CourtCourt of Appeals of Georgia

DecidedMarch 14, 1994

DocketA93A1777

StatusPublished

Cited by6 cases

This text of 442 S.E.2d 815 (Baker v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Baker v. State, 442 S.E.2d 815, 212 Ga. App. 731, 94 Fulton County D. Rep. 2992, 1994 Ga. App. LEXIS 375 (Ga. Ct. App. 1994).

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Opinions

Beasley, Presiding Judge.

Appellants bring this appeal from the trial court’s denial of their motion for discharge and acquittal pursuant to OCGA § 17-7-170.

In February 1991, appellants were indicted for the offenses of ag[732]*732gravated assault and aggravated battery. On April 1, 1991, they filed a “Demand For Trial” which read as follows: “Comes now [defendants], by and through their attorney-at-law, Michael B. Perry, before arraignment and demand a speedy trial.” On February 1, 1993, more than two terms after the demand for speedy trial was filed, appellants filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170. The trial court denied the motion on the ground appellants’ demand could not reasonably be construed as referencing OCGA § 17-7-170 and thus was not sufficient to invoke the extreme sanction of discharge and acquittal provided for by that statute.

It is true that “ ‘[a] demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial.’ State v. Prestía, 183 Ga. App. 24, 25 (357 SE2d 829) (1987).” Kevinezz v. State, 207 Ga. App. 456, 457 (2) (428 SE2d 366) (1993). No particular form is required “so long as the demand can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170].” State v. Adamczyk, 162 Ga. App. 288, 290 (290 SE2d 149) (1982).

Although appellants’ demand for trial does not specifically reference OCGA § 17-7-170, it does “clearly indicate that it is a demand for speedy trial.” Prestía, supra at 25. In Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984), we found the defendant’s demand which sought a “speed[y] trial of any or all charges” was insufficient to invoke the sanction of acquittal of OCGA § 17-7-170 solely because it did not identify the charges against the defendant by name, date, term of court or case number. Because appellants’ demand for trial both requested a speedy trial and recited the style of the case and the indictment number to which it applied, the demand was sufficient to invoke the provisions of OCGA § 17-7-170 providing for discharge and acquittal. See Ferris, supra at 731.

Dyal v. State, 211 Ga. App. 816 (440 SE2d 716) (1994), is not precedential. Moreover, it is distinguishable because Dyal’s demand was buried in a comprehensive motions document. Baker’s demand was a separate document, specifically denominated. It constituted a clear indication that he invoked the statutory right; it was not equivocal or ambiguous nor could it have been taken for anything else than what it was. Requiring a reference to OCGA § 17-7-170 exalts form over substance.

As to the other prerequisites for discharge and acquittal, the trial court noted in its order denying the motion that both the term during which appellants’ demand was filed and the next succeeding term had expired. Appellants state in their brief that juries were impaneled and qualified to try the case during both of these terms. The State does [733]*733not dispute this statement in its appellate brief or on motion for reconsideration and essentially appears to concede this fact. Accordingly, pursuant to Court of Appeals Rule 15 (b) (1), appellants’ statement that juries were impaneled and qualified to try the case during both terms is prima facie true. We further note that had juries not been available, there would have been no reason for the trial court to have reached the issue of whether the demand was sufficient in content.

In Scott v. State, 206 Ga. App. 17, 18 (424 SE2d 325) (1992), we held that “[s]ince jurors were impaneled and qualified to try appellant^] during the term in which [their] demand for trial was made and the next succeeding term, and appellants] [were] not tried during either of those terms, it was error to deny [their] motion for discharge and acquittal of the charge[s] against [them].” (Citations and punctuation omitted.)

The court similarly erred in this case.

Judgment reversed.

Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Andrews, JJ., dissent.

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Beasley, Presiding Judge.

Appellants bring this appeal from the trial court’s denial of their motion for discharge and acquittal pursuant to OCGA § 17-7-170.

In February 1991, appellants were indicted for the offenses of ag[732]*732gravated assault and aggravated battery. On April 1, 1991, they filed a “Demand For Trial” which read as follows: “Comes now [defendants], by and through their attorney-at-law, Michael B. Perry, before arraignment and demand a speedy trial.” On February 1, 1993, more than two terms after the demand for speedy trial was filed, appellants filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170. The trial court denied the motion on the ground appellants’ demand could not reasonably be construed as referencing OCGA § 17-7-170 and thus was not sufficient to invoke the extreme sanction of discharge and acquittal provided for by that statute.

It is true that “ ‘[a] demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial.’ State v. Prestía, 183 Ga. App. 24, 25 (357 SE2d 829) (1987).” Kevinezz v. State, 207 Ga. App. 456, 457 (2) (428 SE2d 366) (1993). No particular form is required “so long as the demand can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170].” State v. Adamczyk, 162 Ga. App. 288, 290 (290 SE2d 149) (1982).

Although appellants’ demand for trial does not specifically reference OCGA § 17-7-170, it does “clearly indicate that it is a demand for speedy trial.” Prestía, supra at 25. In Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984), we found the defendant’s demand which sought a “speed[y] trial of any or all charges” was insufficient to invoke the sanction of acquittal of OCGA § 17-7-170 solely because it did not identify the charges against the defendant by name, date, term of court or case number. Because appellants’ demand for trial both requested a speedy trial and recited the style of the case and the indictment number to which it applied, the demand was sufficient to invoke the provisions of OCGA § 17-7-170 providing for discharge and acquittal. See Ferris, supra at 731.

Dyal v. State, 211 Ga. App. 816 (440 SE2d 716) (1994), is not precedential. Moreover, it is distinguishable because Dyal’s demand was buried in a comprehensive motions document. Baker’s demand was a separate document, specifically denominated. It constituted a clear indication that he invoked the statutory right; it was not equivocal or ambiguous nor could it have been taken for anything else than what it was. Requiring a reference to OCGA § 17-7-170 exalts form over substance.

As to the other prerequisites for discharge and acquittal, the trial court noted in its order denying the motion that both the term during which appellants’ demand was filed and the next succeeding term had expired. Appellants state in their brief that juries were impaneled and qualified to try the case during both of these terms. The State does [733]*733not dispute this statement in its appellate brief or on motion for reconsideration and essentially appears to concede this fact. Accordingly, pursuant to Court of Appeals Rule 15 (b) (1), appellants’ statement that juries were impaneled and qualified to try the case during both terms is prima facie true. We further note that had juries not been available, there would have been no reason for the trial court to have reached the issue of whether the demand was sufficient in content.

In Scott v. State, 206 Ga. App. 17, 18 (424 SE2d 325) (1992), we held that “[s]ince jurors were impaneled and qualified to try appellant^] during the term in which [their] demand for trial was made and the next succeeding term, and appellants] [were] not tried during either of those terms, it was error to deny [their] motion for discharge and acquittal of the charge[s] against [them].” (Citations and punctuation omitted.)

The court similarly erred in this case.

Judgment reversed.

Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Andrews, JJ., dissent.

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442 S.E.2d 815, 212 Ga. App. 731, 94 Fulton County D. Rep. 2992, 1994 Ga. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-state-gactapp-1994.

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