Ferris v. State
| Decision Date | 26 November 1984 |
| Docket Number | No. 68842,68842 |
| Citation | 324 S.E.2d 762,172 Ga.App. 729 |
| Parties | FERRIS v. The STATE. |
| Court | Georgia Court of Appeals |
George W. Weaver, Dist. Atty., Brenda S. Thurman, Asst. Dist. Atty., for appellee.
Defendant C.C. Ferris was indicted (Indictment No. 81R-050) on October 2, 1981, and charged in Count 1 with the offense of a terroristic act (shooting at a conveyance), in Count 2 with the offense of a terroristic threat and in Count 3 with the offense of obstruction of a law enforcement officer. He was arraigned on October 2, 1981, and pleaded "not guilty." At this time he had pending previous charges for driving under the influence and obstructing an officer (Accusation No. S81-R-103) and cruelty to animals (Accusation No. S81-R-310). On December 18, 1981, Ferris, acting pro se, filed with the Clerk of the Pickens County Superior Court the following document. The letter is set out as an appendix to this opinion.
In April 1982 defendant was charged with speeding (Uniform Traffic Citation, Summons, Accusation No. S-82R-162), was arraigned, and pleaded "not guilty." The following October he filed with the Clerk of the Superior Court a letter reading as follows: "To: Pickens Co Court & or Whom It May Concern Let be known that on this day 10-14-82 I C. Clinton Ferris II demand my right to speedie trial in case number S82 R 162 [the April speeding charge] C. Clinton Ferris II." On February 8, 1983, defendant filed a letter addressed to the district attorney and requesting return of personal items confiscated at the time of the January 1981 arrest, together with a letter requesting dismissal of "ANY CHARGES MADE AGAINST ME BEFORE 12/18/81." Trial on the speeding charge (S-82R-162) was set for March 2, 1983, but defendant did not appear. The court ordered the sheriff to find him, and when he was brought in shortly thereafter, defendant demanded a trial on all pending charges. The court found "it was obvious ... that he was intoxicated" and upon observation of defendant's demeanor during the hearing, the court determined defendant was not in condition to go to trial. The court then ordered him held in wilful contempt for thus preventing his speeding case from coming to trial.
In October 20, 1983, defendant filed a "Motion for Acquittal upon Failure to Have Speedy Trial." The court denied the motion, and on January 24, 1984, the defendant was tried on the August 1981 charges (Indictment No. 81R-050). Upon the conclusion of the trial, the jury found defendant not guilty as to Count 1 (terroristic act), not guilty as to Count 2 (terroristic threat), but guilty as to Count 3 (obstruction of a law enforcement officer). Defendant was sentenced for a period of twelve months, to be served on probation. He appeals, enumerating as error the trial court's denial of his motion for acquittal on statutory grounds and the failure to dismiss 1. The statute relied upon by defendant is OCGA § 17-7-170, which reads in pertinent part: The purpose of this statute is to aid and implement both the common-law right to a speedy trial existing in Georgia since prior to 1861 and the provision of the State's constitution which declares that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Underhill v. State, 129 Ga.App. 65, 198 S.E.2d 703; Reid v. State, 116 Ga.App. 640, 158 S.E.2d 461.
the charges on constitutional grounds. Held:
In the case sub judice, the first issue to be addressed is whether, within the contemplation of the statute and relevant case law, Ferris' December 1981 letter was a sufficient demand to trigger the provisions of subsection (b). We hold that it was not.
In State v. Adamczyk, 162 Ga.App. 288, 290 S.E.2d 149, the document on which the defendant based his claim for discharge/acquittal was entitled "Demand for Copy of Accusation (Indictment), Etc." In Adamczyk, amidst demands for copies of the indictment, witness list, and other documents, there appeared the sentence, "Trial by jury and all other procedural rights provided by the ... Constitution and statute provisions ... are also especially demanded." Id. at 289, 290 S.E.2d 149. This court ruled that such language was insufficient as a demand for speedy trial. In so ruling, we held: State v. Adamczyk, 162 Ga.App. 288, supra at 289, 290, 290 S.E.2d 149.
The demand filed by defendant in the case sub judice recites that defendant demands a speedy trial upon "any or all charges" against him. The demand clearly seeks a speedy trial. But upon what charges is defendant speedily to be tried?
The demand does not identify the charges pending against defendant by name, date, term of court, or case number. Such a demand cannot reasonably be construed as sufficient to put the authorities on notice of a defendant's intention to invoke the extreme sanction of former Code § 27-1901 (now OCGA § 17-7-170, effective November 1, 1982). See generally A & D Barrel & C.Co. v. Fuqua, 132 Ga.App. 827, 830 (2(b)), 209 S.E.2d 272. If we rule otherwise, we impose a too heavy burden upon authorities to perceive intuitively the charges which a defendant (who identifies himself by name only) wants brought to trial
2. The second issue to be addressed is whether defendant's constitutional right to a speedy trial was violated. In Nelson v. State, 247 Ga. 172, 174(3), 274 S.E.2d 317, the Supreme Court set out the factors for determining whether a defendant was denied his Sixth Amendment right to a speedy trial. In that case, the court stated we should consider the length of delay, the reason for the delay, whether the defendant asserted his right, and whether the defendant was prejudiced by the delay. Considering all of these factors, we hold that defendant in the case sub judice was not deprived of his constitutional right to a speedy trial. More than two years passed between the indictment of defendant and the trial. However, "[t]he mere passage of time is not enough, without more, to constitute a denial of due process." Hughes v. State, 228 Ga. 593, 595(1a), 187 S.E.2d 135. Defendant "has not shown that the prosecution deliberately delayed the trial for tactical advantage, that he asserted his statutory right prior to trial, that he asserted his constitutional right prior to appeal, or that his defense was impaired by the delay." Getz v. State, 251 Ga. 462, 463, 306 S.E.2d 918. It is particularly significant that the allegation of prejudice is not supported by the record. Moreover, the fact that defendant was acquitted of two of the three crimes set forth in the indictment strongly militates against his contention that he was prejudiced by the delay.
3. The trial court did not err in overruling defendant's motion for a judgment of acquittal.
Judgment affirmed.
I would dissent from the majority opinion for the following reasons. When appellant Ferris was charged in August 1981 with Terroristic Acts--Shooting at a Conveyance, Terroristic Threats, and Obstructing an Officer, he had pending previous indictments for Driving under...
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...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 S.E.2d 762 (1984). It is what the law requires when the defendant has properly filed a demand for speedy trial. OCGA § 17-7-170(b). ......
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...defendant suffered prejudice because of the delay. See Durden v. Barron, 244 Ga. 277, 279, 260 S.E.2d 17 (1979); Ferris v. State, 172 Ga.App. 729(1), 324 S.E.2d 762 (1984). "There must be more than a mere claim of prejudice; it must be shown, and this the accused did not do." Powell v. Stat......
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...can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170]." (Emphasis supplied.) In Ferris v. State, 172 Ga.App. 729, 731, 324 S.E.2d 762, the demand was not deemed sufficient, because "[t]he demand does not identify the charges pending against defendant by......