MAGISTRATE COURT DEKALB COUNTY v. Fleming
284 Ga. 457
Ga.
2008
Check Treatment

*1 “ carry [his] Harris’s trial ‘cannot alone Sixth Amendment claim “ ”13 regard part Instead, without to the other Barker criteria.’ ‘it is importance facts, of the mix of relevant and its increases with the ”14 length delay.’ prejudice balance, there On because was no demonstrable dilatory asserting Harris’s defense and because Harris his was speedy presumptive prejudice trial, to a we conclude that the delay that arises from the prevail in Harris’s trial is him to insufficient for speedy claim, on his and that the trial did err court not denying Harris’s motion to dismiss. judgment denying reasons, For these we affirm the trial court’s Harris’s motion to dismiss.

Judgment All the Justices concur. affirmed. 22, 200 September

Decided 27, Reconsideration denied October Bentley Greenberg, Wayne III, C. Adams Carl E H. Basford, Joyce Daryl appellant. Neal, L. Queen, W. Howard, Jr.,

Paul L. Mallon, District Marc A. Bet- Attorneys, Hart, Willis, tieanne C. Fani L. Assistant District Thurbert Attorney appellee. Baker, E. General, for S08A1060. MAGISTRATE COURT OF DEKALB COUNTY

et al. v. FLEMING. Presiding Justice. HUNSTEIN, Gwendolyn Keyes Fleming, for the Stone prohi Mountain Judicial Circuit, filed a for mandamus and against County Magistrate bition the DeKalb Court and selected “DCMC”) magistrate judges (collectively, July challeng 2, 2007, alleged policy finding hearsay DCMC’s evidence alone insuffi preliminary hearings.2 cient to establish cause at (quoting Doggett, Scandrett v. 505 U. S. 656). at 656). Ruffin, (quoting Doggett, 284 Ga. at 56 505 U. S. at personal officer, We note that mandamus is a action office, Nelson, (2007), Hall v. and that is the counterpart of mandamus. OCGA 9-6-40. 2 Although Fleming’s petition pertaining May set forth facts to a 2007 case in which charges only hearsay presented were dismissed DCMC because evidence was at the County judge the action was to whom Rockdale assigned an order on 9, 2007 and entered held a on October hearing magistrate finding January that “at a admit to refuse to not have the discretion does evidence, if in addition to evidence evidence or cause.” The itself establishes such order directed finding judgment be entered as to this that a final *2 remedy (b), § pursuant the issue of a was held OCGA 9-11-54 but to pursue abeyance in DCMC to a new in for six months to allow appeal voluntary compliance DCMC’snotice of from with the order. 3 January 31, filed this order was magistrate judge charges by at a of a The dismissal § subject challenge by et the State.4 See OCGA 5-7-1 is not to by (authorizing seq. only appeal in cases and certiorari State criminal circumstances); specified Ware, v. 282 677 Ga. under (653 21) (2007) (statute strictly must be construed SE2d State). person Here, the in the of the District alleged by attacking attempted DCMC to avoid this restriction resulting through a of in such dismissals the device of writ prohibition. Lane, See Howard v. 689 mandamus and (581 1) (2003). underlying subject However, matter SE2d as rulings allegedly prosecutions, in and from made criminal concerns ability by appeal, the trial court erred the State has no to which prohibition, considering petition id., mandamus and and its for ruling thereon must be reversed.5 declaratory

Any Fleming’s attempt to recast action as one for a pleadings. judgment by Rather than is belied the substance of evidentiary merely seeking guidance regarding proper standards Fleming sought prohibiting preliminary hearings, an order for evidentiary mandating applying from its rule and DCMC by Fleming interpretation that the of the rule set forth be used. This Harris, Mut. Ins. for relief and the ultimate preliminary hearing, pursuant policy; immediate review. to than the State does appeal 272 Ga. 20 standard, action in the [3] The record That the For OCGA 9-11-54 and appears Co. to OCGA 5-6-34 the OCGA 9-11-54 a proceed (2) general (524 matter [667] Wall, § indicates that the State filed a Keck, to consider the course of conduct SE2d (1) (594 § no § court as supra. before this Court on an 722) (1999). disposition petition (b) SE2d (b), to (b) part dismissal was i.e., apply, different result. 367) (2004). certification was dismissed. propriety of an individual claim a or the as an the order must be “three-pronged SE2d we performance interlocutory appeal challenged. We note that mandamus will not lie Although hereby grant may petition appeal trial court’s be treated the order at issue does not meet this ultimately brought by of continuous duties. Dean v. for writ of certiorari attack” in decision ruling. multiple application that has been this Court as one entered upon See Ga. Farm Bureau claim action. Keck a cognizable alleged related to this interlocutory certified for party DCMC Gober, claim other § declaratory (pur- Compare action. OCGA 9-4-1 is not pose Declaratory Judgment and of Act is “to settle afford relief from uncertainty insecurity respect rights, status, and with and other to relations”) (mandamus may OCGA 9-6-20 to with issue compel performance) may (prohibition and OCGA 9-6-40 to issue jurisdiction). exceeding restrain subordinate court from its support argument The cases cited the dissent in of its Fleming’s controlling. claims are not considered party Corp. City in The State was not a either Smith & Wesson of 16) (2001) Riley, Atlanta, 273 Ga. 431 Jersawitz v. 579) (1998), proposition Ga. 546 cited for adequate remedy by prerequisite appeal of an absence prohibition, appeal via mandamus or and limited thus its implicated. criminal matters v. State Ga., was not Benefield (1) (575 453) (2003), General, Ga. held that the Department Corrections, and the Board of and Pardons Paroles were authorized on the jurisdiction, appeal that the trial lacked is a basis (a) specifically granted (5); pursuant to the State OCGA 5-7-1 no basis such exists here. The Morrell, statements referenced State v. Moseley Ga. v. Sentence *3 Panel, Review 280 Ga. 646 are and dicta dispositive any Finally, perhaps thus not issue in this case. and importantly, Fleming’s most the merits of claims for and mandamus prohibition yet cannot be reached as the trial Court, court has on to rule these See remedies. Bush v.

Judgment except concur, J., reversed. All the Sears, Justices C. Carley JJ., Melton, and and who dissent. Chief SEARS, agree majority’s

For the follow, reasons I that with conclu- appellee’s prohibition sion that the claims mandamus and relief properly appellee fail, but I that, must construed, believe appropriate declaratory judgment asserted an claim and relief granted properly that the trial court to the that relief. I dissent majority’s judgment. of the reversal trial court’s alleged appellee’s complaint In substance, the that the DeKalb County Magistrate adopted evidentiary Court, as a whole, has an policy hearsay illegal that evidence is evidence and is thus an alone insufficient basis on to find cause and bind a case sought appellee over to court, and the relief from uncer- tainty obligations policy. construing as to her future under that pleadings, it is a substance, fundamental rule that not nomenclature, pleadings not an end in also “that the are have held

controls.6 We reaching only the merits of a method to assist but themselves pleadings to do ‘as substantial case. The courts shall construe ”7 justice.’ against personal actions are Because mandamus and appellee’s office and because and not officer complaint whole, court as a a claim asserted majority’s appellee’s agree claims for I conclusion that the with looking However, cannot stand.8 to and mandamus the construing complaint appellee’s and it to do of the substance appellee justice, judgment I that the asserted claim for substantial declaratory believe relief. “ Declaratory Judgment purpose ‘to and of the Act is settle The uncertainty insecurity respect rights, afford relief from and with to ”9 legal status, and other relations.’ declaratory superior court authorized to enter a is upon petition therefor cases of actual contro- (a)], versy [under determine OCGA 9-4-2 and “to and controversy any justiciable declaration of a civil settle justice appears the court ends of nature where to guidance require protection made that such should be for the and petitioner, and when such a declaration petitioner uncertainty insecurity from and will relieve with respect rights, status, to his relations.”10 uncertainty appellee’s complaint faced Because the and showed that she insecurity ability rely as to her evidence alone as a basis in order to have a case on which establish cause appropriate appellee I court, that bound over to believe declaratory properly a claim asserted relief.

Moreover, the record that the trial court found shows binding precludes court has a that cases on the an to the court based on evidence alone over always illegal evidence. Such evidentiary contrary longstanding evidentiary rules *4 6 64) (573 14, 14-15 Smith, (2002); Franklyn Paintings v. 276 Ga. SE2d Gesner Fine (314 903) (1984). 537, Ketcham, v. 539 252 Ga. SE2d 7 (1983) (303 742) (citations Co., 162, Voyager Ins. 163 Block v. 251 Ga. SE2d Life omitted). 8 72) (651 (2007). Nelson, 441, v. 282 Ga. 444 SE2d Hall 9 (518 879) Marietta, 210, City (quoting 213 OCGA Baker v. 271 Ga. SE2d of 9-4-1). 10 Baptist City Rome, Baker, (quoting Calvary at 213-214 &c. Church v. 208 Ga. 271 Ga. of (1951)). (66 726) 312, 314 SE2d

461 is, is evidence at case to the itself, a sufficient basis on which to bind a over appropriate superior or state court.11 declaring appel- court did not err in evidentiary policy to be invalid. I therefore dissent to the

lants’ majority opinion. CARLEY, majority holds that neither a writ of mandamus nor attacking is an available where is

alleged policy County that, in DeKalb applicable, automatically charges when results in the dismissal of at preliminary hearing. Remarkably, only appellate however, the majority holding decision on appeal by relies for this dismissed addressing ordinary ruling the State from an order in a (581 prosecution. criminal Lane, Howard v. 276 688 Ga. underlying SE2d subject Howard, this Court reasoned that the appeal particular prosecution matter of the awas criminal ruling attempt- and the trial therein, court’s and that the State was right appeal to avoid the limitations on its of in OCGA 5-7-1. In ordinary case, however, this ruling the State did not seek review of an any specific party bringing case, criminal is not the appeal, attempting statutory and, therefore, is not to circumvent appellate procedures. why

The reason a writ of was not available to the attempted appellate State in Howard was the circumvention of the procedure obtaining ruling review criminal and not the mere right appeal type fact that the State had no of direct from the ruling adequate remedy by appeal at issue. Indeed, the absence of an actually prerequisite viability to the of an action for mandamus prohibition. Corp. City Smith & Wesson Atlanta, 431, 273 Ga. (1) (543 16) (2001); Riley, 433 SE2d Jersawitz v. 546, Ga. (500 579) (1998). attorney SE2d Thus, a district is authorized to file petition seeking comply a mandamus the trial court to duty put writing, with its in a criminal case to an oral order in even though appeal the State did not have from that oral order. 716) (2), State v. Morrell, 152, 281 Ga. attorney Furthermore, a district is authorized to seek mandamus compelling group perform officials to the duties that 11 Gresham, (644 Edwards, 881, (2007); Pugh, 281 Ga. 882-883 Gerstein v. (1975); LaFave, Israel, Kerr, King U. S. SC LE2d & Criminal (b) (3rd 2007). Procedure, 400) 408,413 Handley Limbaugh, 14.4 ed. See also (1968); (evidence App. Homer v. value). exception prohibiting hearsay probative admissible under some to the rule *5 Assembly upon them criminal cases. has conferred the General Moseley Panel, 280 Ga. 646 Review v. Sentence (2006). Attorney Similarly, General Court authorized this a trial a for writ and other officials jurisdiction judge in the context her that she exceeded on the 100, 101 276 Ga. ofGa., criminal case. Benefield Morrell, indistinguish- Moseley, and are Benefield the conclusion that Those decisions able from this case. challenge alleged magistrate Attorney authorized to was by filing petition policy mandamus or a for writ of court § merely attempting thereby 5-7-1. to circumvent OCGA not and was my reviewing case, it is the merits of this Furthermore, after magis- opinion find that the trial court was authorized to probable practice to bind cause trate court “has a wherein solely be established on court cannot over a defendant magistrate preliminary hearing hearsay “at a evidence” and that hearsay refuse to admit not have the discretion to does require evidence, if in addition to or to evidence evidence by cause ... .” See such itself establishes 122) (2007); Uniform Edwards, Gresham Superior (B) (1); Magistrate 26.2 Uniform Court Rule Court Rule (C) (1); King Kerr, Procedure, LaFave, Israel, & Criminal 25.2 (3rd (b) ed.). Accordingly, respectfully § I dissent to the reversal 14.4 trial court’s order. MELTON, remedy

Because I believe that mandamus was respectfully I case, this dissent. magistrate trial court found as a matter of fact that

Here, dictating “prob- judges adopted had a court-wide court able cause to bind over a defendant to superior court cannot be policy apparently solely This was established evidence.” magistrate judges coming on all criminal cases before enacted to bind magistrate judges thereby preventing from exercis- court, these by required law, to determine whether discretion, their as hearsay ing. hear- cause at a evidence established universally crux this case was Because the rule at the applicable the District cases, cannot maintained that to all it be Attorney merely attempting requirements of of to circumvent was rights asserting Here, 5-7-1. the District OCGA judges, This is not court themselves. the State type encompassed OCGA 5-7-1. of situation subject type be to a of situation which should is, however, It action. mandamus

Generally, remedy mandamus is not available judicial perform judicial officer to function in a manner way judicial performed different from the officer has if there another because mandamus is available (OCGA 9-6-20), legal remedy judicial and a judicial legal remedy. [Cit.] of the act of a review officer is Zepp Brannen, 396, n. 1 appealable case, however, there is no order only general policy adopted by review, the court governing judges. result, the conduct of its As a mandamus is *6 appropriate efficacy magistrate to review the court’s rule. See Stedman, Moreover, Titelman v. by adopting all-encompassing rule, court has considering refused to exercise its discretion testimony determining probable as an basis cause. appropriate remedy compel performance Mandamus is an duty, including e.g., See, official the exercise of discretion. Argenbright, Common Cause Montana v. 276 Mont. 425) (1996) (“[MJandamus may P2d issue to permissible although discretion, exercise of .. . the manner in which discretionary performed act is to be is not to be directed [Cit.]”); Court. Hollis, Thomas v. 232 SC 330 (1958) (“[MJandamus may compel be used to an administrative discretion.”). agency by exercising to act Therefore, its Attorney properly the District filed a mandamus action them to exercise their discretion to standing may consider evidence, whether alone, establish probable cause. September

Decided 22, 200 Reconsideration denied October appellants. Howard Indermark, W.

Gwendolyn KeyesFleming, Attorney, Conroy, District Barbara B. Attorneys, appellee. Grant, Leonora Assistant District Tommy Floyd, Attorney, Kleinrock, Gerard B. K. Lalaine Briones, A. Assistant District Olson, Charles C. amici curiae.