Butler v. State, A92A2342
Citation | 207 Ga.App. 824,429 S.E.2d 280 |
Decision Date | 03 March 1993 |
Docket Number | No. A92A2342,A92A2342 |
Parties | BUTLER v. The STATE. |
Court | United States Court of Appeals (Georgia) |
Gary R. Pelphrey, Marietta, for appellant.
Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.
In Butler v. State, 198 Ga.App. 217, 401 S.E.2d 43 (1990), appellant's conviction was reversed on grounds which mandated a new trial. During the January 1991 term of the trial court, the remittitur was received by the clerk of that court. However, appellant's case was not docketed for retrial during either that or the next succeeding term of the trial court. Thereafter, appellant moved for an acquittal based upon the State's failure to have retried him during either the January 1991 or the next succeeding term of the trial court. Although appellant had never filed a demand for a speedy trial pursuant to OCGA § 17-7-170, he relied upon the following provisions of OCGA § 5-5-49(a, b): The trial court denied appellant's motion for acquittal, but certified its order for immediate review. The instant appeal is before this court pursuant to the grant of appellant's motion for an interlocutory appeal.
If appellant had ever filed a demand for speedy trial pursuant to OCGA § 17-7-170, he clearly would be entitled to an acquittal based upon the State's failure to have retried him during either the January 1991 or the next succeeding term of the trial court. Ramirez v. State, 196 Ga.App. 11(2), 395 S.E.2d 315 (1990). As noted, however, he did not file such a demand. Accordingly, the issue presented for resolution is whether a non-compliance with the provisions of OCGA § 5-5-49 will entitle appellant to exactly the same relief as would a non-compliance with the provisions of OCGA § 17-7-170.
Entirely unlike OCGA § 17-7-170, OCGA § 5-5-49 mandates no express sanction for a non-compliance with its provisions. The employment of the word "shall" Sanchez v. Walker County Dept. of Family & Children Serv., 237 Ga. 406, 410, 229 S.E.2d 66 (1976). See also Horkan v. Beasley, 11 Ga.App. 273(1), 75 S.E. 341 (1912). Appellant has not shown "that any harm accrued to [him] as a result of the delay." Hopping v. Cobb County Fair Assn., 222 Ga. 704, 706(2), 152 S.E.2d 356 (1966). See also Israel v. Cofer, 152 Ga.App. 248, 249(3), 262 S.E.2d 545 (1979). Compare Sanchez v. Walker County Dept. of Family and Children Serv., supra 237 Ga. at 410-411, 229 S.E.2d 66; In re B.A.P., 180 Ga.App. 433, 434(1), 349 S.E.2d 218 (1986). Indeed, appellant has the same right as any other defendant who, having failed to invoke the provisions of OCGA § 17-7-170, nevertheless seeks a discharge based upon the failure of the State to have brought him to trial on pending criminal charges. He can seek dismissal of the criminal charges pursuant to the federal and state constitutional provisions which guarantee him a speedy trial. See State v. King, 137 Ga.App. 26, 222 S.E.2d 859 (1975).
If the legislature had intended that a non-compliance with OCGA § 5-5-49 would result in the automatic acquittal of a defendant in a criminal case, it could have expressly provided for...
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R.D.F., In Interest of
...for the comparable remedy afforded for a non-compliance with OCGA § 17-7-170. The legislature did not so provide. Butler v. State, 207 Ga.App. 824, 826, 429 S.E.2d 280 (1993). See also In the Interest of M.O.B., 190 Ga.App. 474, 475, 378 S.E.2d 898 (1989) (holding that unlike rulings on spe......
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Henry v. James, s. S94A0957
...or the next term of court, if the trial court exercises its discretion and continues the case to that term. See Butler v. State, 207 Ga.App. 824, 429 S.E.2d 280 (1993). ...
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Doxey v. Crissey
...257 Ga. App. 474, 474, 571 S.E.2d 393 (2002) (passing reference in criminal case that had been reversed and remanded); Butler v. State , 207 Ga. App. 824, 824-826, 429 S.E.2d 280 (1993) (addressing statute in context of criminal speedy trial demand following this Court's reversal of judgmen......
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Doxey v. Crissey
...App. 474, 474, 571 S.E.2d 393 (2002) (passing reference in criminal case that had been reversed and remanded); Butler v. State , 207 Ga. App. 824, 824-826, 429 S.E.2d 280 (1993) (addressing statute in context of criminal speedy trial demand following this Court's reversal of judgment).5 We ......