State v. Gerbert

467 S.E.2d 177, 219 Ga. App. 720
CourtCourt of Appeals of Georgia
DecidedApril 12, 1996
DocketA95A1021, A95A1341 and A95A1342
StatusPublished
Cited by4 cases

This text of 467 S.E.2d 177 (State v. Gerbert) 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.

Bluebook
State v. Gerbert, 467 S.E.2d 177, 219 Ga. App. 720 (Ga. Ct. App. 1996).

Opinions

Pope, Presiding Judge.

We consolidated these appeals to consider the trial court’s grant of defendants’ motions for discharge and acquittal pursuant to OCGA § 17-7-170.

1. The State first argues that the court should have denied the motions for discharge because the demands for speedy trial were filed before the formal accusations were filed. The State contends that the [721]*721uniform traffic citations (UTC) against each defendant could not serve as accusations and that even if they could, they were not filed prior to the demands.

Case No. A95A1021

On June 7, 1994, a citation was issued charging Gerbert with the offense of “DUI Alcohol & Drugs” in violation of OCGA § 40-6-391 (a) (3). The citation was filed in the Rockdale County State Court on June 13, 1994 and ordered Gerbert to appear in state court on July 13, 1994.

On June 24, 1994, Gerbert filed a demand for trial in the state court pursuant to OCGA § 17-7-170. On July 13, 1994, the state court set bond, which Gerbert posted.

On September 27, 1994, the formal accusation against Gerbert was filed, charging him with driving under the influence of drugs, with failure to maintain his lane of travel and with two counts of driving with a prohibited substance. Gerbert entered a plea of not guilty and requested a jury trial on November 16, 1994.

The parties stipulated that the Rockdale County State Court has four three-month terms a year, beginning at the start of January, April, July, and October. They further stipulated that juries were impaneled and qualified to try Gerbert in both the July and October terms. On January 27, 1995, the state court granted Gerbert’s motion for discharge and acquittal, determining that because he was not tried on the citation or on the formal accusation during the July and October terms of court, he was acquitted of the charges.

“OCGA § 17-7-170 provides that when a person makes a demand for trial he is entitled to be discharged and acquitted of the offense charged if he is not tried during the term in which his demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try him at each of those terms.” (Citation and punctuation omitted.) Scott v. State, 206 Ga. App. 17 (424 SE2d 325) (1992); see State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712) (1987); State v. McKenzie, 184 Ga. App. 191, 192 (361 SE2d 54) (1987); see also Huff v. State, 201 Ga. App. 408 (411 SE2d 60) (1991).

The first issue to be resolved is whether Gerbert’s filing of his demand for a speedy trial started the clock for the two terms within which to try him. The citation against Gerbert was originally filed in state court and directed Gerbert to appear there. The State argues that the citations were filed in the traffic violations bureau (TVB) of the state court, which could not impanel juries and therefore, had no authority to try Gerbert. Accordingly, the State argues that Gerbert’s demand was untimely and the motion to discharge was improperly [722]*722granted.

Included in the record is a document regarding the Rockdale County State Court which states that “pursuant to Section 40-13-50, et seq. of the Official Code of Georgia Annotated it is hereby Ordered that a Traffic Violations Bureau be established as a division of the State Court of Rockdale County for the handling and disposition of all traffic cases which are not excepted by law or by order.” OCGA § 40-13-53 (b) (1) provides that any offense for which a driver’s license may be suspended by the commissioner of public safety shall not be handled or disposed of by a traffic violations bureau. OCGA § 40-5-67 provides that upon conviction for a violation of OCGA § 40-6-391, a person’s driver’s license shall be forwarded to the Department of Public Safety. Thus, it appears that the TVB could not handle or dispose of the violations at issue in these cases.

In light of these provisions, jurisdiction of the charge against Gerbert for driving under the influence was properly in the state court, not in the traffic bureau division. In granting the motion for discharge, the court concluded that the citation was properly filed and that Gerbert’s demand was not premature on this basis. The court stated that it did not suggest that a speedy trial demand “filed upon a UTC within the jurisdiction of the [TVB] would be timely filed.” The court stated further: “[n]or does the court suggest that such a speedy trial demand filed on TVB case which is transferred to the Solicitor’s office by the Clerk would be timely until a formal accusation had been filed.”1 Given that Gerbert’s demand for speedy trial was filed in a court which could impanel juries to try him, we now must determine in this case and in Case Nos. A95A1341 and A95A1342 whether the motion to discharge was properly granted.

It is settled that a UTC may serve as an accusation. “As provided in OCGA § 40-13-1, a uniform traffic citation shall serve as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged.” (Citation and punctuation omitted.) State v. Black, 213 Ga. App. 331 (444 SE2d 368) (1994); OCGA § 17-7-71 (b) (1). On the other hand, “[i]t is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued or that the prosecuting attorney has no authority to file a subsequent [formal] accusation.” (Citations and punctuation omitted; emphasis supplied.) Ellerbee v. State, 215 Ga. App. 102, 104 (3) (449 SE2d 874) (1994).

[723]*723In the instant matter, the citation charged Gerbert with driving under the influence, while the accusation charged him with the additional offenses of failing to maintain the lane of travel and of driving with a prohibited substance. Thus, the “accusation superseded [the] uniform traffic citation as the charging instrument.” (Emphasis supplied.) Ellerbee v. State, 215 Ga. App. at 104. Although the driving under the influence charge was contained in the UTC, we conclude that for purposes of speedy trial demands the offenses charged in the citation and those of the accusation will be viewed as a whole. In our effort to avoid piecemeal litigation, we will not separately parcel out each offense.

Because the citation against Gerbert did not serve as the accusation, the demand for trial was premature and the motion for discharge was improperly granted. See Groom v. State, 212 Ga. App. 133 (441 SE2d 259) (1994).

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Related

Shire v. State
483 S.E.2d 694 (Court of Appeals of Georgia, 1997)
State v. Gerbert
481 S.E.2d 874 (Court of Appeals of Georgia, 1997)
Druitt v. State
483 S.E.2d 117 (Court of Appeals of Georgia, 1997)
State v. Gerbert
475 S.E.2d 621 (Supreme Court of Georgia, 1996)

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Bluebook (online)
467 S.E.2d 177, 219 Ga. App. 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gerbert-gactapp-1996.