Fletcher v. StateFletcher v. State
- Reporters:
- , , ,
- Before:
- Smith
Kenneth A. Fletcher and Joseph R. Garrard appeal the trial court’s denial of their motions to dismiss and pleas in bar pursuant to
The March 1993 term began on March 15, 1993; the August 1993 term began on August 16. Appellants’ motions for discharge and acquittal were denied on September 28, 1993, during the August term.
1. Appellants contend they are entitled to acquittal under
As a preliminary matter, we note that the action of the appellants in moving to quash the indictments tolled their trial demands. A defendant may waive his right to automatic discharge under
Six days remained in the March 1993 term on August 9, 1993, the date the remittitur was made the judgment of the trial court. Appellants contend that the March term constituted one of the two terms during which they were required to be tried under
This contention is without merit. As noted in
Ramirez v. State,
196 Ga. App. 11 (395 SE2d 315) (1990), we must consider the practical reality of the trial and appellate processes.
The construction proposed by appellants would create insurmountable problems not only for the courts but for other defendants awaiting trial. “Under appellant’s construction, the State could not responsibly rely on the time period provided by the statute to originally try a defendant. Pragmatically it would have to ready its case for trial in a truncated period, to conserve a cushion of time in case of the necessity of retrial following a reversal on appeal. This would contravene the express terms of the statute and be an unworkable criminal trial process. Subsequent convictions and subsequent successful appeals would preclude retrial altogether as timely impossible. Of utmost importance, retrial only within the tolled remaining days, be it one, ten, or forty-six, would interrupt the calendar already set and disrupt the preparations of others who were entitled to a speedy trial. Having sought a new trial, defendant must await his turn.” Id.
“The statute applies to outright dereliction by the State in failing to provide a speedy trial where one could have been had; it does not operate to force the State to impanel a jury for one defendant who makes a late demand. This sort of ‘housekeeping’ would turn the courts upon their heads.” West v. State, 193 Ga. App. 117, 118 (387 SE2d 44) (1989). Likewise, the operation of the Code section and the administration of the trial court’s calendar should not turn upon the coincidental timing of a return of remittitur. 3
The reasoning of
Ramirez
and
West
is equally applicable to an appeal and reversal of a defendant’s successful plea in bar or motion to quash an indictment. In both situations, the rulings made on appeal may alter substantially the legal or factual posture of the case and affect the parties’ preparation for trial. Particularly where appellants’ motions were not made until the second term of court after their demands for speedy trial were filed, the appeal and reversal truncate the time for trial preparation to the vanishing point. Having
Moreover, a term or remainder of a term in which no juries are impaneled and qualified to try the case is not counted for purposes of
Appellants contend, apparently on the basis of State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978), that jurors could have been recalled to duty and thus were impaneled and qualified. The clerk originally provided an affidavit for appellants which stated that traverse jurors could have been recalled to duty, but she testified before the trial court that this was in error because she had confused grand jurors with traverse jurors: “Grand jurors can be recalled, but traverse jurors are not recalled. They’re assigned by a new order.” Under questioning by the trial court, the clerk testified that the traverse jurors were in fact released. 4 Traverse jurors accordingly were not “impaneled and qualified to try” appellants during the six days of the March 1993 term after the remittitur was returned.
“Because the penalty imposed by this statute against the state is so great, it must be strictly construed.”
Day v. State,
187 Ga. App. 175, 176 (369 SE2d 796) (1988). Appellants’ motions for acquittal under
2. Appellants also contend that they are entitled to a dismissal on the basis of double jeopardy. They contend, and the State denies, that the crimes charged in the RICO indictment were known to the prosecutor at the time the May indictments issued. However, we need not reach this issue because a defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn. Geckles v. State, 177 Ga. App. 70 (338 SE2d 473) (1985). Where a jury has not been impaneled and sworn to try the defendant, he has not been placed in jeopardy. Teal v. State, 203 Ga. App. 440, 443 (2) (a) (417 SE2d 666) (1992).
Judgment affirmed in Case Nos. A94A0406 and A94A0408.
Pope,
Notes
There are three terms of superior court in Upson County, beginning on the third Monday in March and August and the first Monday in November.
Appellants filed one or more trial demands in the March 1992 term, with the exception of Fletcher, who filed a demand on the May indictment in the August term, which began on Monday, August 18, 1992. Garrard does not provide a record reference to a trial demand on the RICO indictment, and we have found none.
We note that at least one appellant made an explicit written request to the clerk of this court that the remittitur be returned within the almost-expired term, citing the pending speedy trial demand.
Appellants have not enumerated as error the trial court’s admission of the clerk’s oral testimony at the October 7, 1993 motions hearing. We note, however, that the trial court granted the State’s request to supplement the record on appeal pursuant to