Head v. State

Court of Appeals of Georgia

Head v. State

375 S.E.2d 46, 189 Ga. App. 111, 1988 Ga. App. LEXIS 1303

Court of Appeals of Georgia·Decided September 7, 1988·No. 76515·Published·Cited by 6 cases

Opinions

Banke, Presiding Judge.

On May 3, 1987, the appellant was arrested and issued traffic citations charging him with driving under the influence of alcohol and improper lane changing. He contends that on June 24, 1987, he filed a demand for trial pursuant to OCGA § 17-7-170 and that he was thereby entitled either to be tried or acquitted within the next succeeding term of court. On August 28, 1987, accusations were returned charging the appellant with the offenses charged in the traffic citations. On September 30, 1987, the appellant moved to dismiss these accusations pursuant to OCGA § 17-7-170, on the ground that he had not been tried within the next succeeding term of court after making his demand for trial. However, the trial court found that the demand had not been properly filed and consequently denied the appellant’s motion. The appellant was subsequently convicted of the charges set forth in the two accusations, and this appeal followed. Held:

OCGA § 17-7-170 provides that, with certain qualifications, where a defendant makes a demand for trial, the state must try him during the term of court when the demand is made or at the next succeeding regular term. The appellant correctly contends that he was entitled to file a demand for trial pursuant to this Code section based solely on the issuance of the traffic citations. See State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986). However, the demand upon which the appellant relies bears no filing stamp; and the trial court made a specific determination, on the basis of the evidence presented at the dismissal hearing, that it had never actually been filed. The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. See Matthews v. State, 181 Ga. App. 819, 820 (354 SE2d 175) (1987). Since the appellant in this case could not show that his demand was ever filed with the court, the trial judge did not err in refusing to discharge and acquit him of the offenses charged.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Sognier, Pope, and Benham, JJ., concur. Carley and Beasley, JJ., dissent.

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Banke, Presiding Judge.

On May 3, 1987, the appellant was arrested and issued traffic citations charging him with driving under the influence of alcohol and improper lane changing. He contends that on June 24, 1987, he filed a demand for trial pursuant to OCGA § 17-7-170 and that he was thereby entitled either to be tried or acquitted within the next succeeding term of court. On August 28, 1987, accusations were returned charging the appellant with the offenses charged in the traffic citations. On September 30, 1987, the appellant moved to dismiss these accusations pursuant to OCGA § 17-7-170, on the ground that he had not been tried within the next succeeding term of court after making his demand for trial. However, the trial court found that the demand had not been properly filed and consequently denied the appellant’s motion. The appellant was subsequently convicted of the charges set forth in the two accusations, and this appeal followed. Held:

OCGA § 17-7-170 provides that, with certain qualifications, where a defendant makes a demand for trial, the state must try him during the term of court when the demand is made or at the next succeeding regular term. The appellant correctly contends that he was entitled to file a demand for trial pursuant to this Code section based solely on the issuance of the traffic citations. See State v. Spence, 179 Ga. App. 750 (347 SE2d 612) (1986). However, the demand upon which the appellant relies bears no filing stamp; and the trial court made a specific determination, on the basis of the evidence presented at the dismissal hearing, that it had never actually been filed. The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. See Matthews v. State, 181 Ga. App. 819, 820 (354 SE2d 175) (1987). Since the appellant in this case could not show that his demand was ever filed with the court, the trial judge did not err in refusing to discharge and acquit him of the offenses charged.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Sognier, Pope, and Benham, JJ., concur. Carley and Beasley, JJ., dissent.

Head v. State, 375 S.E.2d 46, 189 Ga. App. 111, 1988 Ga. App. LEXIS 1303 (Ga. Ct. App. 1988).

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