State v. GerbertState v. Gerbert
- Reporters:
- ,
- Before:
- Andrews
Lead Opinion
We consolidated these appeals to consider the trial court’s grant of defendants’ motions for discharge and acquittal pursuant to
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 *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
On June 24, 1994, Gerbert filed a demand for trial in the state court pursuant to
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.
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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 *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.”
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
*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). “There 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 filed in the same term or not.” State v. McKenzie, 184 Ga. App. at 192; State v. Frazier, 201 Ga. App. 6 (1) (410 SE2d 134) (1991). Accordingly, the grant of Gerbert’s motion to discharge on this basis is reversed.2
Case No. A95A1341
Citations issued on April 20, 1994, charging Damron with driving under the influence of alcohol, an open container violation, and reckless driving. Damron was ordered to appear in state court. The parties stipulated that the citations were delivered to the court clerk by the sheriff’s department with a list of the other UTCs on April 22, 1994. The stipulation further provided that the clerk entered information regarding the UTCs into a computer on April 25, 1994.
On May 16, 1994, Damron filed his trial demand under
The parties stipulated that the Rockdale County State Court had four three-month terms a year and that juries were impaneled and qualified to try Damron in the April, July, and October terms. On February 20, 1995, the court granted Damron’s motion to discharge and acquit.
“In this case, the uniform traffic citations served as the accusations. [Cits.] Although formal accusations were later filed in this case, they were superfluous. [Cits.]” Smith v. State, 207 Ga. App. 762 (429 *724SE2d 149) (1993); compare State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989). The citation was filed with the state court prior to the filing of the demand for speedy trial and the motion for discharge and acquittal was properly granted.
Case No. A95A1342
On May 20, 1994, a citation issued against Kiser charging him with “DUI Alcohol & Drugs in violation of Code
On June 9, 1994, Kiser filed a demand for trial pursuant to
Again, the parties stipulated that the Rockdale County State Court had four three-month terms a year and that juries were impaneled and qualified to try Kiser in the April, July, and October terms. On February 20, 1995, the court granted Kiser’s motion to discharge and acquit.
Although the accusation contained charges under
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These cases illustrate the procedural quagmire that may result in cases of this type. In an effort to ameliorate this situation, and to provide a fair procedure for both the State and the accused, in future cases in which a speedy trial demand is filed on a UTC, the State will *725be required to elect, within the first term during which the case could be tried, whether to proceed on the UTC or whether, instead, to file an accusation which will then supplant the UTC as the charging instrument. This requirement does not conflict with
2. Because the first enumeration of error does not end our inquiry as to Case Nos. A95A1341 and A95A1342, we address the State’s additional arguments. Contrary to the State’s second enumeration, service of the demands for trial was properly made on the solicitor and district attorney, rather than the officer who issued the citations. See
3. The State next points to difficulties in trying the case on the UTC instead of on a formal accusation. At the outset, we note that our holding in Division 1 renders this issue moot. Moreover, “it is not true that a prosecution must proceed upon the [UTC] form that has initially been issued and that the prosecuting attorney has no authority to file a subsequent formal accusation. The State is not prohibited from issuing a subsequent accusation.” (Citation and punctuation omitted.) State v. Doyal, 184 Ga. App. 126, 127 (361 SE2d 17) (1987).
4. The State argues that since the defendants’ original demands for trial referenced the citation numbers, and the motions to discharge referenced the case numbers, the motions should have been dismissed. However, the charges at issue are identifiable in the demands and motions, and this argument is specious.
5. We have examined the State’s fifth enumeration of error, that the
6. Finally, the State argues that there is no conflict between
*726 Judgment reversed in Case No. A95A1021.
McMurray, P. J.,
Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs in part and dissents in part.Judgments affirmed in Case Nos. A95A1341 and A95A1342.
McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs specially.Notes
The traffic bureau division of the Rockdale County State Court does not hold jury trials. In its order, the court appears to be concerned with the effect of a speedy trial demand made on an offense originally filed in the traffic bureau. Because in Rockdale County the TVB operates only as a division of the state court, the emphasis on this distinction appears irrelevant.
Although the court granted Gerbert’s motion to suppress the results of the State-administered blood test, this ruling is not at issue here.
Concurrence Opinion
concurring in part and dissenting in part.
I respectfully dissent with respect to the affirmance of Gerbert’s conviction and specially concur with respect to affirmance of the discharges and acquittals granted to Damron and Kiser. I concur fully in Divisions 2 through 6 of the majority opinion but not in Division 1.
Judicially compelled cessation of prosecution of a criminal offense is an “extreme sanction” for the State’s tardiness in proceeding. Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984). It is what the law requires when the defendant has properly filed a demand for speedy trial.
The sanction is a fatal one because it guards a valuable right, the right to have charges brought against one disposed of not only while witnesses are available and their memories are fresh but also so that the deleterious effects of a pending charge on a defendant are lessened. As stated in Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985), “In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely.”
The process of criminal proceedings is not meant to be the punishment. The right is regarded as so fundamental that it is protected not only by statute,
When may a person who is charged with a misdemeanor by a uniform traffic citation and complaint exercise that right? A person can be tried on a UTC for certain misdemeanors, including the ones charged originally against the defendants in the instant cases.
Of particular significance is that the issuance and filing of a UTC “commences” the prosecution of the charge contained therein, for statute of limitation purposes. Poppell v. State, 209 Ga. App. 91, 92 (432 SE2d 573) (1993); Duncan, supra; Weaver, supra.
Whether to proceed on the UTC, or on a prosecutor’s accusation, or on a grand jury indictment, is the choice of the prosecutor. The State’s advocate should not have control of when the defendant’s right to a speedy trial on the charge contained in the UTC arises. That is the result of the majority’s holding, which is contrary to the statutory commands. The service of a copy of the demand on the prosecutor is “sufficient to put the authorities on notice of [the] defendant’s intention to invoke the extreme sanction” of
For these reasons, the trial court should be affirmed in all three cases.