Franklin v. The State
| Decision Date | 08 July 2010 |
| Docket Number | No. A10A0019.,A10A0019. |
| Citation | 699 S.E.2d 575,305 Ga.App. 354 |
| Parties | FRANKLINv.The STATE. |
| Court | Georgia Court of Appeals |
Billy L. Spruell, Melinda D. Taylor, Marietta, for appellant.
Patrick H. Head, Dist. Atty., Dana J. Norman, Marc D. Cella, Asst. Dist. Attys., for appellee.
In this armed robbery and aggravated assault case, Raymond Franklin appeals from the trial court's order denying his motion to dismiss based upon a violation of his right to a speedy trial and the expiration of the statute of limitation. For the reasons set forth below, we affirm.
The record in this case shows that Franklin was indicted in Cobb County Superior Court on January 7, 1979 for two counts of armed robbery and one count of aggravated assault. Ten days later, Franklin escaped from custody during a supervised visit to a dentist's office. He killed a person during the course of his escape before being recaptured within 24 hours. On February 8, 1979, Franklin was separately indicted for abduction, kidnapping, and murder. On May 11, 1979, the trial judge granted the State's request that the armed robbery case against Franklin be placed on the dead docket because Franklin was “convicted on April 26, 1979, and sentenced to 20 years for kidnapping and a death sentence for murder.” The record shows no objection by Franklin to the placement of the armed robbery case on the dead docket.
On April 29, 1984, the United States Supreme Court affirmed a decision by the Eleventh Circuit Court of Appeals setting aside Franklin's murder conviction and death sentence. See Franklin v. Francis, 720 F.2d 1206 (11th Cir.1983), affirmed Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). On October 30, 1985, Franklin was again convicted of murder and kidnapping and sentenced to life in prison. At the time of Franklin's conviction, the sentencing option of life without parole had not yet been enacted by the General Assembly. See OCGA § 17-10-16(a) (effective May 1, 1993).
Franklin testified that he became eligible for parole in March 2006 and was sent to a work release program in April 2006. He also testified that on October 16, 2006, he was informed that he “had made parole” and would be released the following week. On October 20, 2006, Franklin learned that his release had been cancelled based upon new information. The record includes an internal memo to a deputy court clerk dated December 14, 2006, requesting that the armed robbery and aggravated assault case be placed on a January 25, 2007 trial calendar.1
On January 25, 2007, in a one-sentence motion, the State petitioned the Cobb County Superior Court to remove the 1979 armed robbery and aggravated assault case from the dead docket. The trial court granted this motion in a written order entered on January 25, 2007, in which it noted that Franklin appeared for this hearing, was represented by appointed counsel, and did not oppose the removal of the case from the dead docket.
In a letter to Franklin's mother dated January 31, 2007, an assistant director with the state board of pardons and parole wrote:
Less than one month after Franklin's case was removed from the dead docket, Franklin hired private counsel. On March 23, 2007, within two months of the removal of this case from the dead docket, Franklin's new counsel moved to dismiss the charges based upon a violation of Franklin's right to a speedy trial and the expiration of the statute of limitation.
In August 2007 and December 2007, the trial court received testimony concerning the pending motion to dismiss and requested that the parties submit proposed orders after the hearing concluded. Franklin's counsel at the time of his 1985 murder retrial testified at the hearing on Franklin's motion to dismiss. She explained that she went back to court with Franklin the day after he was sentenced to life imprisonment “because he had not been advised of his appeal rights” at the conclusion of his trial the day before. According to counsel, the presiding judge informed Franklin about his appeal rights, and Franklin waived all of his appeal rights based upon an agreement with the State that the pending armed robbery and aggravated assault case would “be completed,” meaning “dismissed.” Counsel recalled that she made this deal with one of the assistant district attorneys who tried the case, either Nicollette Templer or Jim Morris.
Eddie Varnadore testified that he assisted Franklin's 1985 trial counsel with Franklin's defense in the murder trial. He recalled that she told him the day after the trial that they did not have to worry about an appeal of the case, but he could not remember why. He could not remember if there was a deal with the State to dismiss other pending charges.
Franklin's 1985 trial counsel did not think the district attorney was present when the deal was made. She was “sure” a court reporter was present when Franklin waived his appeal rights, and her billing on the Franklin file included a half-hour for returning to court the day after the trial was completed. Finally, she recalled that Franklin gave a newspaper interview after the deal was completed, and she explained that she would never have let the press interview her client if any charges were still pending against him. She could not explain why she never followed up to ensure that the armed robbery case was removed from the dead docket and dismissed.
The former district attorney for Cobb County testified at the hearing that the armed robbery case was initially placed on the dead docket in 1979 at his direction and “customary with our practice at that time.” He explained that the armed robbery charges remained on the dead docket at the time of Franklin's retrial for murder in 1985 “in the event that ... those [murder] charges would fall or that ultimately the defendant may be in the position to be released.” He testified that he retried the case with two assistant district attorneys, Templer and Morris, and that he “made it very clear to them” that deals with the defendant “had to be made by myself.” He testified that he was not familiar with the deal testified to by Franklin's 1985 trial counsel, that he would never have agreed to it, and that he would not have authorized an assistant district attorney to agree to it. He testified that he made a deliberate decision not to remove the armed robbery case from the dead docket because of Franklin's life sentence in the murder case. He explained:
The judge who presided over the 1985 trial testified that he could not recall whether the defendant came back to court after receiving his life sentence or whether there was a deal for him to give up his appeal rights in the murder case in exchange for an agreement by the State to give up its right to prosecute the armed robbery case. His normal practice would have been to do it in open court with a court reporter present.
The senior court reporter for Cobb County testified that she searched and found court reporter notes indicating that Franklin's murder trial ended on October 30, 1985. She searched and could not locate any court reporter notes for the murder case dated October 31, 1985, the date the 1985 trial counsel testified the deal was struck before the presiding judge. Assistant district attorney Templer testified that she did not have a specific recollection of the Franklin murder case, but that she would not have made any deal in a case of that magnitude without the district attorney's approval.
Ten months after the close of evidence, the trial judge wrote counsel and advised them that she had consulted with a disinterested expert, a law school professor, on the issue of “dead docketing a case beyond the applicable statute of limitation[ ] for the charged offenses.” The trial judge also informed counsel that the expert had opined “that case law could support dismissing” such a case and invited the parties to submit supplemental letter briefs within 30 days. In her order denying Franklin's motion to dismiss, the trial judge acknowledged receiving letter briefs from both the State and Franklin on this issue, but her order does not analyze the statute of limitation issue raised by Franklin.2
The trial judge's order does, however, provide an in-depth analysis of the speedy trial issue. She noted that length of the delay “clearly triggers a speedy trial analysis using the three remaining Barker v. Wingo factors.” With regard to the reason for the delay, she concluded: Based upon factual...
To continue reading
Request your trial
-
Levin v. State
...not clearly erroneous, and the court did not err in weighing this factor against the State. See generally Franklin v. State , 305 Ga. App. 354, 359–360 (1) (b), 699 S.E.2d 575 (2010).(C) Defendant’s assertion of the right. Applying the same analysis to these charges as it did the kidnapping......
-
Taylor v. State
...in a difficult and sensitive balancing process of all four factors." (Citations and punctuation omitted.) Franklin v. State , 305 Ga.App. 354, 362, (1) (e), 699 S.E.2d 575 (2010). Based upon the complexity of the multi-count indictment involving 15 separate victims, Taylor's failure to time......
-
Ward v. State
...even if to a lesser degree, and is not neutral as to both parties as found by the trial court. See, e.g., Franklin v. State, 305 Ga.App. 354, 359(1)(b), 699 S.E.2d 575 (2010) (reason for delay should have been weighed against State where only a portion was attributable to the defendant; maj......
-
Williams v. State, A13A2049.
...(2012). 24.Jackson v. State, 252 Ga.App. 16–17(2), 555 S.E.2d 240 (2001) (citation and footnote omitted); see Franklin v. State, 305 Ga.App. 354, 363(2), 699 S.E.2d 575 (2010). ...