State v. Collins

411 S.E.2d 546, 201 Ga. App. 500, 1991 Ga. App. LEXIS 1428

• Court: Court of Appeals of Georgia
• Decided: October 15, 1991
• Docket: A91A0883
• Status: Published

Opinions

McMurray, Presiding Judge.

The State appeals from the superior court’s grant of defendant Collins’ motion to acquit. Held:

Defendant, who was already on parole, was arrested on the charges at issue in June 1989. He was held in the Walker County jail until September 1989 and thereafter has been incarcerated in the Georgia State Penitentiary System. No hold or detainer was placed against the defendant in the State penitentiary by the prosecution. On November 9, 1989, defendant was charged by indictment with having committed the offenses of criminal attempt to commit kidnapping, burglary, criminal attempt to commit interference with custody, and simple battery. Pursuant to OCGA § 17-7-170, defendant filed his demand for trial. The demand for trial was filed on December 7, 1989, while qualified jurors were impaneled in the November 1989 term of the Superior Court of Walker County. Qualified jurors were impaneled in a subsequent term of court. Defendant, who took no action to interfere with his case being brought before a jury, was not tried during the two completed terms following his demand for trial.

The issue as phrased by the State is “whether an inmate incarcerated on an unrelated offense in a State Prison, who has never been arraigned, may file a demand for trial that will entitle him to a discharge if not tried in two terms pursuant to O.C.G.A. Section 17-7-170.” An affirmative answer is clearly required.

First, we note that since no detainer was filed against defendant, OCGA § 42-6-3 is inapplicable to the case sub judice. We are concerned solely with the application of OCGA § 17-7-170 to the facts of the case sub judice.

The State contends defendant has not complied with the requirements of OCGA § 17-7-170 since he was not physically present and ready for trial during both terms of court following his demand. This presents an interesting issue as to whether such a requirement exists in relation to OCGA § 17-7-170. OCGA § 17-7-171 (b), a similar statute applicable to capital offenses but not to the case sub judice, explicitly requires that at both terms “that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.” Such language does not appear in the provisions of OCGA § 17-7-170. This Court has held that the above language from OCGA § 17-7-171 (b) applies only to capital offenses and that there is no similar provision applicable to cases governed by OCGA § 17-7-170. Ciprotti v. State, 190 Ga. App. 639, 641 (4) (379 SE2d 802). See also State v. Crapse, 173 Ga. App. 100, 102 (3) (325 SE2d 620) (overruled on other grounds, Hubbard v. State, 176 Ga. App. 622, 623 (1) (337 SE2d 60)) and Hunt v. State, 147 Ga. App. 787, 788 (250 SE2d 517). On the other hand, there also are cases which require the physical presence of a defendant in the trial court in order to pursue a demand under OCGA § 17-7-170. Daniels v. State, 199 Ga. App. 400 (405 SE2d 88); Luke v. State, 180 Ga. App. 378, 379 (349 SE2d 391); Smith v. State, 169 Ga. App. 251, 253 (2) (312 SE2d 375); Hendricks v. State, 108 Ga. App. 259 (1) (132 SE2d 845).

In our view, the correct line of cases recognizes a difference in the language of the two statutes and does not attempt to graft the physical presence requirement of OCGA § 17-7-171 (b) onto OCGA § 17-7-170. OCGA § 17-7-170 is satisfied if a defendant is available for trial, whether physically present in court or not. Hendricks and its progeny, including Smith, Luke and Daniels, are overruled to the extent they conflict with our holding in the case sub judice. Nonetheless, we note that the decision in Luke would not have been different under our reasoning since that defendant, being incarcerated by a different sovereign, was not available for trial since there is no inherent authority in a court of this State to compel his presence under those circumstances. See Hunt. In contrast to Luke and Hunt, in the case sub judice, the superior court had authority to compel defendant’s presence for trial, therefore OCGA § 17-7-170 was fully satisfied since defendant was available for trial. Flagg v. State, 11 Ga. App. 37, 38 (2), 39 (4) (74 SE 562). The superior court did not err in granting defendant’s motion to acquit.

Judgment affirmed.

Sognier, C. J., Carley, P. J., Cooper, J., and Judge Arnold Shulman concur. Birdsong, P. J., Pope, Beasley and Andrews, JJ., concur specially.