Getz v. State, 39984

• Decision Date: 21 September 1983
• Docket Number: No. 39984,39984
• Citation: 306 S.E.2d 918,251 Ga. 462
• Parties: GETZ v. The STATE.
• Court: Georgia Supreme Court

Page 918

306 S.E.2d 918

251 Ga. 462

GETZ v. The STATE.

No. 39984.

Supreme Court of Georgia.

Sept. 21, 1983.

Glenn Getz, pro se.

Joseph H. Briley, Dist. Atty., Gray, Norman R. Miller, Asst. Dist. Atty., for the State.

BELL, Justice.

Getz appeals from his conviction of operating a motor vehicle 70 miles per hour in a 55 miles per hour zone in violation of Code Ann. § 68A-802 (now OCGA § 40-6-181).

Appellant was arrested February 5, 1981. On May 7, 1981 he filed a "notice of special continuing appearance" with the court which had the following language: "I DEMAND ALL OF MY RIGHTS, AND I DO NOT WAIVE ANY OF THEM! I therefore demand my right to enjoy a trial by jury of 12 empanelled to decide the law, facts and admissability of evidence as constituted by Common Law, and the right to counsel of my choice."

Appellant was tried November 29-30, 1982. On November 29, prior to the commencement of trial, he moved for a judgment of acquittal pursuant to Code Ann. § 27-1901 (now OCGA § 17-7-170), on the ground that the case had not been brought to trial within the next succeeding term of court after a demand for trial had been filed. The trial court, relying upon State v. Adamczyk, 162 Ga.App. 288, 290 S.E.2d 149 (1982), denied the motion.

In his first enumeration Getz contends the trial court erred by denying his motion for a judgment of acquittal pursuant to § 27-1901. He also contends that the court's ruling violated his Sixth Amendment right to a speedy trial. U.S. Const., Amend. 6. The latter issue is raised for the first time on appeal.

1). The document filed by appellant cannot reasonably be construed as a demand for trial under the provisions of § 27-1901, and we find no abridgment of his statutory right. Forbus and Nicholson v. State, 250 Ga. 24, 295 S.E.2d 530 (1982); Adamczyk, supra.

2). In Nelson v. State, 247 Ga. 172(3), 274 S.E.2d 317 (1981), we set out the factors for determining whether there has been a denial of the Sixth Amendment right to a speedy trial. In that case we said courts should consider the length of delay, the reason for delay, whether the defendant asserted his right, and whether he was prejudiced.

The length of delay between appellant's arrest and trial was almost 22 months, but Getz 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....