Shire v. StateShire v. State
- Reporters:
- , , ,
- Before:
- Eldridge
On January 19, 1996, appellant Matthew Orlando Shire was arrested in DeKalb County for driving under the influence and driving left of the centerline. Appellant was issued two uniform traffic citations (“UTCs”) at that time. Appellant filed a demand for a speedy trial in the State Court of DeKalb County on March 28, 1996, even though the state had not yet filed the UTCs or a formal accusation with the court and there had been no bindover hearing on April 2, 1996. Attached to appellant’s demand was a copy of both UTCs; appellant also served the state with copies of the demand and the UTCs. However, since no case was pending against appellant, the deputy court clerk created a file, assigned a case number to the file, and entered the information in a computer. The clerk then sent a memo to the state directing them to refer to the case number when filing the accusation or other pleadings.
The state filed an accusation against appellant on May 21, 1996. When the case was not tried by June 30, 1996, the end of the April court term, appellant filed a motion for discharge and acquittal on July 8, 1996. Appellant challenges the trial court’s denial of his motion to discharge. For the reasons set forth below, we affirm.
1. Appellant asserts that the trial court erred in finding that his demand for speedy trial was premature and, therefore, a nullity since neither a formal accusation nor a UTC had been filed with the court by the state at the time of the demand. There is no merit in this assertion. 1
(a) With respect to the first issue, the undisputed facts of the case sub judice indicate that, at the time appellant filed his demand for a speedy trial, no case was pending against appellant, since no UTC, indictment, or other accusation had been
filed with the court by the state.
Appellant admits that
This Court rejects appellant’s argument. “Generally, a prosecution in state court commences with the filing by the solicitor of an accusation or UTC with the clerk of the court.
“From the beginning of our criminal justice system prosecutors have exercised the power of prosecutorial discretion in deciding which defendants to prosecute. Bishop v. State, 265 Ga. 821, 822 (462 SE2d 716) (1995); see Hicks v. Brantley, 102 Ga. 264, 271-272 (29 SE 459) (1897) (prosecuting attorney is to determine whether or not to commence a prosecution). In the state court, the role of prosecutor is filled by the solicitor. See OCGA § [15-18-66 (b) (10)]; see also Zater v. State, 197 Ga. App. 648, 649 (399 SE2d 222) (1990) (solicitor’s role in state court is same as that of district attorney who is the prosecuting attorney in superior court).” (Punctuation omitted.) Rish, 222 Ga. App. at 731-732. Adopting appellant’s apparent argument that a defendant may “file” a case against himself by submitting UTCs, along with a speedy trial demand, to a court clerk severely infringes upon prosecutorial discretion regarding whether or not to proceed on a case based on the UTC, whether to promulgate a formal accusation, or whether to dismiss the charges altogether. This Court, absent statutory authority, refuses to assign such control over the disposition of a case to a court clerk. More importantly, we refuse to grant such control to defendants, who may be tempted to manipulate the system with untimely filings in an attempt to avoid prosecution.
“While not binding in this case, we note that the Georgia General Assembly recently enacted
(b) Moving to the second issue, in
State v. Gerbert,
267 Ga. 169
(475 SE2d 621) (1996), the Supreme Court of Georgia considered “whether the right to demand a speedy trial attaches when a uniform traffic citation is filed with the court or only when a formal accusation is filed.” In holding “that the [statutory] right to a speedy trial under
Contrary to appellant’s contentions, this holding is entirely consistent with this court’s prior rulings. Under remarkably similar circumstances, this Court, in
Ghai v. State,
219 Ga. App. 479, 480 (465 SE2d 498) (1995),
4
held “that a uniform traffic citation is not entered, within the meaning of
2. Appellant also asserts that the state failed to prove that the UTCs were not in the file at the time the appellant filed his demand for speedy trial. However, by appellant’s own admission, no case was pending against appellant and no case file existed at the time appellant filed his demand. It is therefore impossible for the UTCs to have been filed with the court at the time appellant’s demand was filed. This argument is disingenuous and clearly meritless. Further, “[n]oting that the citations contained no stamp or indication of filing, the trial judge factually concluded that the uniform traffic citations had not been filed in the trial court on or before the presentation of the speedy trial demand. . . . In a bench trial, the trial court sits as trier of fact, and its findings will not be set aside unless clearly erroneous. The trial court’s findings of fact were not clearly erroneous.” (Citations and punctuation omitted.) Ghai, 219 Ga. App. at 480. 6
In summary, this Court affirms the trial court’s finding that appellant’s demand for speedy trial was filed prior to the filing of a UTC or other accusation by the state, so that the demand was premature and, therefore, a nullity. Even though the state subsequently filed an accusation against the appellant, “ ‘[tjhere is no provision in Georgia law whereby a prematurely filed speedy trial demand can be resuscitated by a later returned accusation (or indictment) whether they are
“The dismissal of a criminal case pursuant to
Judgment affirmed.
Birdsong, P. J, and Ruffin, J., concur.
Notes
This Court notes that appellant’s counsel has unsuccessfully asserted strikingly similar arguments under analogous facts in at least two previous cases. See State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996); Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995).
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A UTC may serve as an accusation in state or probate courts.
In Ghai, supra, the appellant attempted to file a demand for speedy trial following his arrest for DUI and other traffic offenses. However, the court clerk declined to accept the filing on the grounds that it was premature, since the state had not filed an accusation or UTC with the court.
While this Court recognizes appellant’s concern that this rule may allow prosecutor’s the opportunity to delay prosecution of a case “indefinitely” by postponing the filing of a UTC or an accusation beyond two court terms, thereby defeating the purpose of the speedy trial provision of the Code, this issue is not before this Court in the case sub judice, as an accusation was filed against appellant on May 21, 1996.
This case is distinguishable from Tyler v. State, 224 Ga. App. 550 (481 SE2d 228) (1997). Contrary to the trial court’s finding in the case sub judice, the trial court in Tyler made no finding regarding whether or not the UTC had been properly filed prior to the defendant’s demand for speedy trial. On appeal, this Court found that the UTC had been filed with the trial court because it had been assigned a case number which was subsequently used on pleadings and other motions by the defendant. Therefore, this Court found that the UTC served as the accusation and the defendant’s speedy trial demand was not premature. See State v. Gerbert, supra at 170. There exists a presumption of correctness that both the clerk and the prosecutor performed their respective duties when the clerk of court has stamped, initialed, and numbered the UTC, then entered the document on the docket. In the case sub judice, there was no evidence of such ministerial duties; the evidence showed that the UTC had been received but not “filed” by the clerk, because the defense counsel had no authority to “file” the UTC.