Merrill v. State

Court of Appeals of Georgia

Merrill v. State

411 S.E.2d 283, 201 Ga. App. 247, 1991 Ga. App. LEXIS 1304

CourtCourt of Appeals of Georgia

DecidedSeptember 3, 1991

DocketA91A1404

StatusPublished

Cited by1 cases

This text of 411 S.E.2d 283 (Merrill 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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Merrill v. State, 411 S.E.2d 283, 201 Ga. App. 247, 1991 Ga. App. LEXIS 1304 (Ga. Ct. App. 1991).

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Opinion

Birdsong, Presiding Judge.

This is a prosecution of Marc Merrill for driving under the influence. In a previous decision, Merrill v. State, 192 Ga. App. 890 (386 SE2d 684), we held that appellant’s “Omnibus Motion,” which in paragraph 25 requested a trial within two terms or an acquittal and discharge, “obfuscated the nature of the pleading” (id. at 891), and was in any case premature as it was filed before the accusation was filed. Following the Supreme Court’s denial of certiorari and our remittitur on November 27, 1989, appellant Merrill, on May 21, 1990, filed a second motion for acquittal and discharge pursuant to OCGA § 17-7-170 for failure to provide speedy trial, contending the State was given fresh notice of his speedy trial demand by our decision in his first appeal. The trial court denied this motion for acquittal and discharge. Merrill appeals. Held:

Appellant contends that our decision affirming the denial of his first motion for acquittal and discharge cleared up the obfuscatory nature of his “Omnibus Motion” and put the State on notice of a demand for speedy trial; and moreover, that our ruling, which natu[248]*248rally occurred after the accusation was filed against appellant, rendered appellant’s “demand” timely. He thus asserts that when we affirm the denial of an acquittal and discharge because a defendant made an untimely and insufficient demand for speedy trial, a new demand for speedy trial is perfected by our decision and is automatically lodged in the trial court on the filing of the remittitur from this court.

Decided September 3, 1991 Reconsideration denied September 19, 1991 Robert S. Devins, for appellant. Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, J. Cliff Howard, Assistant Solicitors, for appellee.

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 this statute. Head v. State, 189 Ga. App. 111 (375 SE2d 46). This court has held previously that the defendant’s “demand” in this omnibus motion was insufficient to invoke the extreme sanction of dismissal and acquittal (Merrill, supra) and the fact that we so held does not operate to perfect that insufficient demand or render it “sufficient” so as to serve as the basis for a second motion for dismissal or acquittal.

Judgment affirmed.

Pope and Cooper, JJ., concur.

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Birdsong, Presiding Judge.

This is a prosecution of Marc Merrill for driving under the influence. In a previous decision, Merrill v. State, 192 Ga. App. 890 (386 SE2d 684), we held that appellant’s “Omnibus Motion,” which in paragraph 25 requested a trial within two terms or an acquittal and discharge, “obfuscated the nature of the pleading” (id. at 891), and was in any case premature as it was filed before the accusation was filed. Following the Supreme Court’s denial of certiorari and our remittitur on November 27, 1989, appellant Merrill, on May 21, 1990, filed a second motion for acquittal and discharge pursuant to OCGA § 17-7-170 for failure to provide speedy trial, contending the State was given fresh notice of his speedy trial demand by our decision in his first appeal. The trial court denied this motion for acquittal and discharge. Merrill appeals. Held:

Appellant contends that our decision affirming the denial of his first motion for acquittal and discharge cleared up the obfuscatory nature of his “Omnibus Motion” and put the State on notice of a demand for speedy trial; and moreover, that our ruling, which natu[248]*248rally occurred after the accusation was filed against appellant, rendered appellant’s “demand” timely. He thus asserts that when we affirm the denial of an acquittal and discharge because a defendant made an untimely and insufficient demand for speedy trial, a new demand for speedy trial is perfected by our decision and is automatically lodged in the trial court on the filing of the remittitur from this court.

Decided September 3, 1991 Reconsideration denied September 19, 1991 Robert S. Devins, for appellant. Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, J. Cliff Howard, Assistant Solicitors, for appellee.

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 this statute. Head v. State, 189 Ga. App. 111 (375 SE2d 46). This court has held previously that the defendant’s “demand” in this omnibus motion was insufficient to invoke the extreme sanction of dismissal and acquittal (Merrill, supra) and the fact that we so held does not operate to perfect that insufficient demand or render it “sufficient” so as to serve as the basis for a second motion for dismissal or acquittal.

Judgment affirmed.

Pope and Cooper, JJ., concur.

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411 S.E.2d 283, 201 Ga. App. 247, 1991 Ga. App. LEXIS 1304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merrill-v-state-gactapp-1991.

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