Aspinwall v. State

• Decision Date: 16 September 1991
• Docket Number: No. A91A1489,A91A1489
• Citation: 410 S.E.2d 388,201 Ga.App. 203
• Parties: ASPINWALL v. The STATE.
• Court: Georgia Court of Appeals

Page 388

410 S.E.2d 388

201 Ga.App. 203

ASPINWALL v. The STATE.

No. A91A1489.

Court of Appeals of Georgia.

Sept. 16, 1991.

Lane & Crowe, Robert L. Crowe, for appellant.

W. Glenn Thomas, Jr., Dist. Atty., Kevin R. Gough, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Aspinwall was charged by indictment with the offenses of one count of child molestation and two counts of aggravated child molestation. On November 9, 1990, defendant filed his demand for trial pursuant to OCGA § 17-7-170, asking that he be tried at the then current term or next term of court, or in default of such trial, that he be fully discharged and acquitted of the offenses charged. Subsequently, defendant filed his motion for discharge and acquittal pursuant to OCGA § 17-7-170, alleging the passage of two terms of court at which jurors had been impaneled and that he had not been tried. Defendant appeals from the denial of his motion for discharge and acquittal. Held:

OCGA § 15-6-3(7)(C) sets the terms of court of the Superior Court of Glynn County. This statute was amended in 1990 (Ga.L.1990, p. 920, § 2, effective January 1, 1991) so as to change the dates of commencement of terms of court from the second Monday in January, May, and September to the second Monday in March and September.

Defendant's demand for trial was filed during the September 1990 term of court and the record shows that jurors were impaneled for the trial of criminal cases during this term subsequent to the filing of defendant's demand for trial. Pursuant to the amendment to OCGA § 15-6-3(7)(C), the subsequent term of court commenced in March of 1991. "The regular terms of the superior and state courts shall continue until the commencement of the next regular term, at which time they shall stand adjourned." OCGA § 15-6-19. It follows that only one term of court had passed in the interval between defendant's demand for trial and the superior court's ruling on defendant's motion for discharge and acquittal.

Nonetheless, defendant contends that due to the change in the period of time permitted the State to try him pursuant to OCGA § 17-7-170, the amendment of the terms of court is an ex post facto law as applied to him. Based upon this supposition, defendant argues that the period allowed the State to try him must be determined under the superseded terms of court provision so that a fictitious January 1991 term of court would be deemed to have also passed.

"A speedy trial is a fundamental constitutional right...." Blevins v. State, 113 Ga.App. 702, 703, 149 S.E.2d 423. OCGA § 17-7-170 is only one device by which a defendant may assert his constitutional right to a speedy trial. Newman v. State, 121 Ga.App. 692, 693(3), 694, 175 S.E.2d 144. While defendant contends that OCGA § 17-7-170 provides substantive rights, we find no support for this position except certain dicta in Jeffries v. State, 140 Ga.App. 477, 478(1), 479, 231 S.E.2d 369. This dicta is not supported by subsequent case law and is contradicted by decisions from other jurisdictions which hold that demand for speedy trial provisions are merely procedural devices subject to repeal or revision without any ex post facto consequences. Illinois v. Anderson, 53 Ill.2d 437, 292 N.E.2d 364; Illinois v. Bivens, 43 Ill.App.3d 79, 1 Ill.Dec. 477, 356 N.E.2d 665; Kanter v. Florida, 265 So.2d 742; Alaska v. Williams, 681 P.2d 313; Missouri v. Loewe, 756 S.W.2d 177, 180-81; Missouri...