386 S.E.2d 684 | Ga. Ct. App. | 1989
MERRILL
v.
THE STATE.
Court of Appeals of Georgia.
Robert S. Devins, for appellant.
Ralph T. Bowden, Jr., Solicitor, Judith C. Emken, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.
DEEN, Presiding Judge.
The appellant, Marc Merrill, was arrested for driving under the influence on August 3, 1988. On August 9, 1988, Merrill filed with the state court clerk an "Omnibus Motion," the twenty-fifth paragraph of which requests "[t]o enter on the minutes of the court that the defendant had demanded trial by jury and that he be so tried during this term of court or the next succeeding regular court term thereafter; and upon failure to so proceed, that the defendant be absolutely discharged and acquitted of the offenses so charged." An accusation against Merrill was not filed until October 20, 1988. His case was placed on the December 12, 1988, jury calendar, but continued to the January 23, 1989, calendar.
On January 20, 1989, Merrill filed a motion for discharge and acquittal on the basis that he had not been tried according to his speedy trial demand made pursuant to OCGA § 17-7-170. The trial court denied the motion on March 16, 1989, called the case for trial on March 27, 1989, and then entered an order reflecting that the case had been *891 called within two terms. This appeal followed. Held:
Merrill's demand for trial, filed before the accusation was filed in the state court, was premature, and the trial court thus did not err in denying his motion for discharge and acquittal. See State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989). Moreover, even if it had been timely, the motion would properly have been denied on its merits. In Kramer v. State, 185 Ga. App. 254 (363 SE2d 800) (1987), where the defendant filed a motion styled as "Jury Demand," which included a paragraph containing essentially the same language as the twenty-fifth paragraph in Merrill's "Omnibus Motion," this court held that the defendant's motion was insufficient to invoke OCGA § 17-7-170. The primary reason was that the caption of the motion obfuscated the nature of the pleading. The same reasoning would be applicable in the instant case.
Judgment affirmed. Birdsong and Benham, JJ., concur.
