Callaway v. State

• Decision Date: 31 July 2001
• Docket Number: No. A01A1847.,A01A1847.
• Citation: 553 S.E.2d 314,251 Ga. App. 11
• Parties: CALLAWAY v. The STATE.
• Court: Georgia Court of Appeals

553 S.E.2d 314

251 Ga. App. 11

CALLAWAY v. The STATE.

No. A01A1847.

Court of Appeals of Georgia.

July 31, 2001.

Elizabeth M. Grant, for appellant.

Kenneth W. Mauldin, Dist. Atty., Anna E. Watkins, Asst. Dist. Atty., for appellee.

ELDRIDGE, Judge.

Dextrell Callaway filed a direct appeal from an order denying his plea in bar and demand for acquittal based on the denial of his constitutional right to a speedy trial under the analysis established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). He cites a physical precedent, Ould v. State, 186 Ga.App. 55, 366 S.E.2d 392 (1988), as authority for the proposition that a direct appeal is available under these circumstances. Because Ould is not a binding precedent, because we find that the reasoning offered therein does not withstand careful scrutiny, and because we find no other legitimate basis to exercise appellate jurisdiction at this time, we conclude that Callaway's direct appeal must be dismissed as premature.

The defendant in Ould v. State moved for a discharge and acquittal on the day before his scheduled trial. He appealed from the denial of that motion. The Ould court devoted its first Division to the matter of jurisdiction, stating as follows:

Although the case is primarily interlocutory in nature, a direct appeal is permissible because it indirectly implicates the issue of double jeopardy resulting from the failure to grant an accused a speedy trial. See Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985), allowing interlocutory appeal from denial of a motion to dismiss based on the statutory demand which as to purpose is analogous to the federal constitutional right to a speedy trial. Cook v. State, 183 Ga.App. 720(1), 359 S.E.2d 716 (1987) follows Hubbard, and Smith v. State, 169 Ga.App. 251(1), 312 S.E.2d 375 (1983) precedes it. The reasoning in these cases applies here and recommends the same result, which we adopt. Thus, a direct appeal lies from a denial of discharge based on an alleged denial of a constitutional right to a speedy trial.

Id. at 55-56(1), 366 S.E.2d 392. A careful reading of the Smith, Hubbard, and Cook cases, however, reveals no support for the proposition that a claimed failure to grant an accused a speedy trial, when made outside the context of a statutory demand for trial under OCGA § 17-7-170, "indirectly implicates the issue of double jeopardy."

As our opinion in Smith v. State, supra, makes clear, any analogy between the denial of a plea of double jeopardy and a plea in bar based on OCGA § 17-7-170 is clearly not rooted in any functional similarity between the substantive considerations underlying the two motions.

A plea of double jeopardy is premised upon the alleged violation of an individual's guarantee against being twice put to trial for the same offense. On the other hand, an OCGA § 17-7-170 motion proceeds on the theory that the defendant has never been put in jeopardy and tried for the crime charged. Under this view, it would follow that the denial of an OCGA § 17-7-170 motion does not constitute the denial of a plea of double jeopardy—there being no former trial—but is merely a determination that the state's previous failure to place the accused in jeopardy does not bar the state from so placing him in the future.

(Citations and punctuation omitted; emphasis in original.) 169 Ga.App. at 251-252(1),312 S.E.2d 375. The analogy between a double jeopardy plea and one based on OCGA § 17-7-170, as explained in Smith, lies in the demand statute's automatic acquittal function.

Where a demand [under OCGA § 17-7-170] has been regularly made and allowed, and two regular terms of court are thereafter held, and the accused is not placed on trial, no motion to acquit is necessary, but the discharge of the accused results automatically, by operation of law, provided qualified juries were impaneled competent to try the case, and the failure to try is not due to the voluntary absence of the accused, or to some other conduct on the part of himself or his counsel. Thus, the denial of an OCGA § 17-7-170 motion does not constitute the trial court's refusal to grant the accused an acquittal and thereby terminate the original prosecution. Rather, the denial of an OCGA § 17-7-170 motion constitutes the trial court's determination that the prosecution has not already resulted in an automatic acquittal of the accused by operation of law. Therefore, to the extent that the denial of an OCGA § 17-7-170 motion allows the prosecution to proceed, it is an adjudication that the impending trial of the accused will not place him in jeopardy for the commission of a crime for which he has previously been acquitted. To this extent, the denial of an OCGA § 17-7-170 motion is—at the very least—in the nature of a ruling on the accused's double jeopardy rights. If the OCGA § 17-7-170 motion is erroneously denied, and the accused is subsequently tried and convicted, the conviction will be reversed on double jeopardy grounds, but only after the accused has been forced to undergo a trial which never should have been held. Accordingly, the same "compelling reasons" which led the Supreme Court in Patterson v. State, [248 Ga. 875, 287 S.E.2d 7 (1982)], to hold that the denial of a plea of double jeopardy is directly appealable, lead us to the same conclusion with regard to the denial of an OCGA § 17-7-170 motion. "`[If] a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.' [Cits.]" (Emphasis in original.) Patterson v. State, supra at 876, 287 S.E.2d 7.

(Citations and punctuation omitted; emphasis in original.) Id. at 252-253, 312 S.E.2d 375.

Our analysis in Smith was approved by the Supreme Court in Hubbard v. State, supra. The Supreme Court correctly observed that "[i]n 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. These values are of a magnitude similar to the values at stake in double jeopardy claims." 254 Ga. at 695, 333 S.E.2d 827. While acknowledging that the underlying values are of similar magnitude, the Supreme Court did not go further and state that all denials of motions for acquittal based on the accused's assertion that his or her right to a speedy trial has been denied should be directly appealable. On the contrary, the Supreme Court's decision in Hubbard, like this Court's decision in Smith, supra, is based squarely on the automatic acquittal feature of OCGA § 17-7-170.

In double jeopardy claims the accused is saying, "I may not now be tried because I have previously been placed in jeopardy." In a claim based on OCGA § 17-7-170 the accused is saying, "I may not now be tried because the time during which I must have been placed on trial has passed." The circumstances bearing on the right to appeal are analogous. Therefore, we hold that the denial of a motion to dismiss based upon OCGA § 17-7-170 is directly appealable under OCGA § 5-6-34(a).

(Emphasis supplied.) Id.¹

The circumstances bearing on the right to appeal in Ould v. State as well as in the present case are very different from those presented in appeals based on the rejection of double jeopardy claims. Defendant Callaway is not claiming that any further proceedings against him would be void because he has already been effectively acquitted as a matter of law or that the time during which he must have been tried has passed;² rather, Callaway's essential position in this appeal is that the trial court abused its discretion in failing to find that Callaway's constitutional right to a speedy trial has been violated. Accord Thomas v. State, 233 Ga.App. 224, 225(2), 504 S.E.2d 59 (1998). We therefore conclude that appellate jurisdiction to consider Callaway's appeal, assuming it exists, may not be grounded on the reasoning applied in Hubbard, supra and Smith, supra.

The remaining question is whether there nevertheless exists an appropriate basis to hear Callaway's appeal that is separate and distinct from the reasoning offered in Ould v. State, supra. The underlying mechanism allowing pre-trial direct appeals based on a plea of double jeopardy or on the failure of the State to comply with a demand for trial brought under OCGA § 17-7-170 is known as the "collateral order" exception to the final judgment rule. Patterson v. State, supra.

"[T]he exception applies if the order: `(1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is "substantially separate" from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is "effectively unreviewable on appeal." (Cit.)' [Cit.]" Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 79, 485 S.E.2d 525 (1997). The Supreme Court of the United States fully examined the relevant considerations bearing on this question in United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). The Court specifically noted that

[i]n sharp distinction to a denial of a motion to dismiss on double jeopardy grounds, a denial of a motion to dismiss on speedy trial grounds does not represent "a complete, formal and, in the trial court, a final rejection" of the defendant's claim. Abney v. United States, 431 U.S. [651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)]. The resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case. As is reflected in the decisions of this Court, most speedy trial claims, therefore, are best considered only after the relevant facts have been developed at trial.

435 U.S. at 858, 98 S.Ct. 1547.

The reasoning in MacDonald, which we find persuasive, makes plain that an unfavorable ruling on a constitutional speedy trial claim possesses none of the characteristics enumerated...