Harper v. State, A91A1774

• Citation: 203 Ga.App. 775,417 S.E.2d 435
• Decision Date: 20 March 1992
• Docket Number: No. A91A1774,A91A1774
• Parties: HARPER v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 435

417 S.E.2d 435

203 Ga.App. 775

HARPER v. The STATE.

No. A91A1774.

Court of Appeals of Georgia.

March 20, 1992.

Reconsideration Denied April 3, 1992.

Certiorari Denied June 11, 1992.

Peter D. Johnson, Augusta, for appellant.

Michael C. Eubanks, Dist. Atty., Katherine F. Bond, Richard E. Thomas, Asst. Dist. Attys., for appellee.

JOHNSON, Judge.

The appellant was charged in a single indictment with armed robbery and several other offenses. At the time of his arraignment he filed a demand for trial "within the next succeeding term ... under OCGA § 17-7-170 ..." The next succeeding term expired without his being tried, and during the following term he filed a motion for discharge and acquittal. The trial judge denied the motion based on a determination that OCGA § 17-7-171 was applicable to the case rather than OCGA § 17-7-170; and this appeal followed.

Under OCGA § 17-7-170(b), a person charged by indictment or accusation with "an offense not affecting his life" who thereafter makes a valid demand for trial is entitled to discharge and acquittal if he is not tried within the next succeeding term of court after the demand is filed, "provided at both terms there were juries impaneled and qualified to try him." However, if the defendant is indicted for a "capital offense," then OCGA § 17-7-171 applies rather than OCGA § 17-7-170. Under § 17-7-171, the state is required to try the defendant within the next two terms after the demand is made, "provided that at both terms there were juries impaneled and qualified to try [him] and provided, further, that [he] was present in court announcing ready for trial and requesting a trial on the indictment."

Although OCGA § 16-8-41(b) specifies that armed robbery is punishable by death, the Georgia Supreme Court, applying the rationale of Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), has held that the death penalty may no longer be imposed for this offense. See Collins v. State, 239 Ga. 400, 402(2), 403, 236 S.E.2d 759 (1977). The appellant contends that armed robbery consequently may no longer be considered a capital offense, with the result that OCGA § 17-7-170 must be applied to this case rather than OCGA § 17-7-171. However, the Supreme Court has further held that "[a] capital offense within the terms of [OCGA § 17-7-171] refers to offenses defined by statute as capital offenses, not necessarily offenses for which the state could or actually does seek the death penalty," Cleary v. State, 258 Ga. 203, 204, 366 S.E.2d 677 (1988); and in reliance on that statement, this court has previously held that armed robbery continues to be a capital offense within the purview of OCGA § 17-7-171. See White v. State, 202 Ga.App. 370, 414 S.E.2d 296 (1991). Accord Simmons v. State, 149 Ga.App. 830, 256 S.E.2d 79 (1979) (decided under former Code Ann. §§ 27-1901.1 and 27-1901.2, the statutory predecessors to OCGA § 17-7-171). See also Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976), approving this court's holding in Letbedder v. State, 129 Ga.App. 196, 199 S.E.2d 270 (1973), that armed robbery did not cease to be a capital offense within the contemplation of former Code Ann. §§ 27-1901.1 and 27-1901.2 during the period in which the death penalty could not be imposed in this state by virtue of the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

While it is well settled by the foregoing cases that armed robbery is still a "capital offense" within the purview of OCGA § 17-7-171, it has been held that armed robbery is no longer a capital offense for certain other purposes. For example, the Georgia Supreme Court held in Collins v. State, supra, that armed robbery could no longer be considered a capital felony within the meaning of Art. VI, Sec. II, Par. IV of the Georgia Constitution of 1976, giving it jurisdiction over " 'all cases of conviction of a capital felony.' " Id., 239 Ga. at 402-403, 236 S.E.2d 759. Similarly, this court has held that " 'if death is not a possible sentence, insofar as punishment is concerned, the offense cannot be capital, and a defendant charged with armed robbery may be indicted as a recidivist' " under OCGA § 17-10-7(b). Scott v. State, 172 Ga.App. 725, 728(5), 324 S.E.2d 565 (1984), quoting from Ivory v. State, 160 Ga.App. 193, 195, 286 S.E.2d 435 (1981). On the other hand, the Supreme Court has held that, notwithstanding Collins v. State, supra, armed robbery continues to be recognized as a capital offense "for the purpose of applying the aggravating circumstance provision of [OCGA § 17-10-30(b)(2) ]." Peek v. State, 239 Ga. 422, 432, 238 S.E.2d 12 (1977).

The appellant contends that to interpret armed robbery as a capital offense for some purposes but not others is so arbitrary, capricious and irrational as to violate due process and equal protection of the law. While we must concede that the decisions on this issue do not seem to be joined by any consistent thread of logic, the fact remains that armed robbery continues to be classified under statutory law as a capital offense, and it is clearly within the province of the Legislature to determine that this offense is more serious than other crimes, such as feticide (OCGA § 16-5-80) and aggravated sodomy (OCGA § 16-6-2), for which life imprisonment may be imposed but for which the death sentence has never been statutorily authorized.

"State legislation is constitutional with respect to due process if it bears a rational relation to a proper and constitutionally permitted legislative purpose." Department of Nat. Resources v. Union Timber Corp., 258 Ga. 873, 876(4), 375 S.E.2d 856 (1989). Similarly, "[w]hen assessing equal protection challenges, ... [i]f neither a suspect class nor a fundamental right is affected by the statute, the statute need only bear a rational relationship to some legitimate state purpose." Ambles v. State, 259 Ga. 406, 407(2), 383 S.E.2d 555 (1989). We conclude that the appellant's constitutional rights to due process and equal protection of the law were not violated by the application of OCGA § 17-7-171 to the present case rather than OCGA § 17-7-170; and we consequently hold that the trial court did not err in denying his motion for discharge and acquittal.

Judgment affirmed.

SOGNIER, C.J., McMURRAY, BIRDSONG and CARLEY, P.JJ., and POPE and ANDREWS, JJ., concur.

BEASLEY and COOPER, JJ., dissent.

BEASLEY, Judge, dissenting.

I respectfully dissent because the appellant was entitled to discharge and acquittal under OCGA § 17-7-170 in that he was not "accused of a capital offense" and thus subject to OCGA § 17-7-171.

A crime is either a capital offense in this state or it is not. It cannot be both. It is too serious a distinction to apply to a particular crime when a procedural rule is at issue and not apply when sentencing is at issue. Defendants, their counsel, the bench and bar, and the general public must know. The lengthier period for the State to prepare for trial following an accused's demand for trial which is allowed by OCGA § 17-7-171 only applies to capital offenses.

OCGA § 16-8-41(b) provides that a person convicted of armed robbery "shall be punished by death" or imprisonment. Nevertheless, the Supreme Court of Georgia concluded in 1977, when the statute also authorized the death penalty for armed robbery, that because of intervening decisions of the United States Supreme Court and the Georgia Supreme Court, "the death penalty may not be imposed for these crimes [armed robbery being one] under present Georgia statutes." Collins v. State, 239 Ga. 400, 402(2), 236 S.E.2d 759 (1977). It held that convictions of armed robbery "under present Georgia statutes are no longer convictions of capital felonies for appellate jurisdictional purposes," which was the specific issue before it.

At that time the Georgia Constitution conferred jurisdiction on that Court "in all cases of conviction of a capital felony." 1976 Ga. Const., Art. VI, Sec. II, Par. IV. The wording was changed in the 1983 Constitution, which now provides for that Court's exclusive jurisdiction in "(a)ll cases in which a sentence of death was imposed or could be imposed." 1983 Ga. Const., Art. VI, Sec. VI, Par. III(8). The State decision referred to is Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff'd 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The statutes which the Court applied to conclude that the death penalty was not authorized for the armed robberies in that case are, as material here, the same at the current time. See OCGA §§ 17-10-30, 17-10-35, 17-10-36.

In determining whether the crime of armed robbery was "a capital felony," the Court in Collins applied the definition first set out in Caesar v. State, 127 Ga. 710, 712(1), 57 S.E. 66 (1906): "In our view the expression 'capital felony,' when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same." Thus the Court recognized that the judicial construction of the Eighth Amendment in effect emasculated the words "by death" from OCGA § 16-8-41(b). The penalty, which was "affixed" by the legislature, was judicially rendered void. The statute, which is an act of the General Assembly, must yield to the constitution, in this case the Federal Constitution, as judicially interpreted.

Thus the very essence of the meaning of "capital offense," which refers to the maximum penalty imposable under law, was eliminated as a characteristic or consequence of armed robbery. The Supreme Court so stated in Peek v. State, 239 Ga. 422, 432 (III(2)), 238 S.E.2d 12 (1977): "[T]he death penalty can no longer be given for armed robbery...." In Peek it did no more than retain the "practice of recognizing armed robbery as a...