Adams v. State
| Decision Date | 05 October 1973 |
| Docket Number | No. 2,No. 48595,48595,2 |
| Parties | Faye A. ADAMS v. The STATE |
| Court | Georgia Court of Appeals |
Hudson & Montgomery, David R. Montgomery, Athens, for appellant.
Nat Hancock, Dist. Atty., Jefferson, for appellee.
Syllabus Opinion by the Court
Faye Allyson Adams appeals her conviction and one-year prison sentence for burglary entered May 17, 1973 on the ground that the State failed to comply with her demand for trial under Code § 27-1901. There is no dispute that the actual trial did not take place until the second regular term allowing that in which the demand was made. The state urges that special circumstances here resulted in the satisfaction of the statute of alternatively in Adams' waiver of her demand. We cannot concur with the state's position, and reverse.
At the August 1972 adjourned term of the Barrow County Superior Court, Adams and three others were indicted for possession of burglary tools, conspiracy to commit burglary, and attempted burglary both of the Ace Hardware Company and the Boutique Shop, all of which crimes were alleged to have been committed on October 7, 1972 at a shopping mall. At the November term, which was the next succeeding regular term thereafter, Adams made demand for trial, and also moved for severance, which motion was denied. The case was mistried during the November term, ending with a hung jury. The trial judge stated after entering the mistrial that the case would be tried 'next week' and all the defendants objected that 'tomorrow is Thanksgiving' following which everyone agreed to postpone the trial to the next term of court.
The next term was February 1973, and during that term, on February 6 the state entered a new indictment against Adams and the three others arising out of the occurrences alleged to have occurred on October, 7, 1972 at the shopping mall, but making the following changes: the new indictment dropped from the charge of possessing burglary tools the itemization of two electric blankets, and added thereto six new items or groups of items. The conspiracy charge was dropped. The charge concerning the Hardware Company was increased to burglary. Adams moved on February 12 for severance and was denied. Also on February 12, counsel for one of Adams' codefendants moved for a postponement only of the arraignment on the new indictment, on grounds that he had not received the requisite notice. All parties agreed to the postponement, with the understanding that the arraignment would be held on the 19th. On the 19th the arraignment was held; Adams' motion to quash the indictment because the earlier one was pending was denied; the state's attorney refused to say whether the state would proceed to trial on the first or the second indictment; the trial date was set for Thursday, February 22.
On Wednesday, February 21, when no proceedings on either indictment were scheduled the state's attorney and counsel for Adams' codefendants appeared in court and announced to the judge that because of counsel's other commitments they all desired a continuance in case no. 13424-the second indictment. Adams' attorney was not present, nor was she herself nor anyone purporting to represent her. The judge granted the requested continuance into the next, May, term. The record is devoid of indications that Adams or her counsel acquiesced in or were advised of the intention of the other codefendants to seek a continuance.
On February 22, the date set for trial, according to the affidavit of Adams' attorney, Adams and her attorney appeared in court ready for trial, unaware of any postponement, and were told by a deputy sheriff of Barrow County that the case had been postponed. There was subsequently no trial on either indictment at the February term.
In the May term, on May 9, Adams' attorney made the affidavit mentioned above, and moved for her discharge under Code § 27-1901. His motion asserted that for lack of trial or waiver under the first indictment, Adams was entitled to her discharge therefrom; and that the second indictment was sufficiently similar to the first so that acquittal on the first would bar prosecution on the second. The motion was denied; Adams and the others were tried at the May term; Adams was convicted only on the burglary count and received a sentence of one year; this appeal followed.
Application of the law to these facts is plain. Contrary to the state's contention, the November mistrial does not satisfy the statutory requirement for trial. The state urges that a close reading of Geiger v. State, 25 Ga. 667, shows that a mistrial entered either with defendant's consent or as the result of inevitable accident, satisfies the requirement for a trial under a demand and that only the portion of the opinion dealing with 'inevitable accident' has been subsequently interpreted by this court as obiter in Nix v. State, 5 Ga.App. 835, 63 S.E. 926 and Rider v. State, 103 Ga.App. 184, 118 S.E.2d 749. Our reading of Geiger shows that at both terms of court when defendant's demand was operative mistrials had been entered by the judge simply by dismissing the jury before they reached a verdict, without defendant's consent. The trial court in Geiger then refused defendant's motion for discharge on the ground that he had been afforded all the trial in the power of the court to give him, and that neither time had the court been bound to offer him any further trial. The Supreme Court reversed, holding that where a demand was outstanding a mistrial would not be entered without either defendant's consent or the occurrence of 'inevitable accident.' Though the distinction is perhaps a fine one, we conclude that this is not the same as a ruling that had the defendant consented to the mistrial, he would have been held to have had the 'trial' to which his demand entitled him.
Indeed, the more recent authorities are clear that entry of a mistrial does not satisfy the requirement for trial under a demand,...
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Butler v. State
...imposed sentence but refused the recommendation. Our decision upon Adams' appeal of her conviction was previously reported at 129 Ga.App. 839, 201 S.E.2d 649. Ritzheimer's pro se appeal is reported in 130 Ga.App. 319, 203 S.E.2d On this appeal, Butler raises five enumerations of error of wh......
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State v. Varner, S03A0936.
...still has not received the speedy trial guaranteed him under the statute. Geiger v. State, 25 Ga. 667 (1858); Adams v. State, 129 Ga.App. 839, 840-841, 201 S.E.2d 649 (1973); Rider v. State, 103 Ga.App. 184, 118 S.E.2d 749 (1961); Nix v. State, 5 Ga.App. 835, 836-837, 63 S.E. 926 (1909). Th......
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Dingler v. State, A05A2189.
...case."). Rather, a request for a continuance outside the term of the demand waives the speedy trial demand. Adams v. State, 129 Ga.App. 839, 842, 201 S.E.2d 649 (1973). Under these circumstances, the trial court abused its discretion in denying Dingler's motion for the appointment of a DNA ......
- Campbell v. State, s. 48558