Henry v. James

• Decision Date: 11 October 1994
• Docket Number: Nos. S94A0957,S94A0959,s. S94A0957
• Citation: 264 Ga. 527,449 S.E.2d 79
• Parties: HENRY v. JAMES, Judge. HENRY v. The STATE.
• Court: Georgia Supreme Court

Page 79

449 S.E.2d 79

264 Ga. 527

HENRY v. JAMES, Judge.

HENRY v. The STATE.

Nos. S94A0957, S94A0959.

Supreme Court of Georgia.

Oct. 11, 1994.

Billy L. Spruell, Melinda Davis Taylor, Spruell & Dubuc, P.C., Atlanta, for Robert Jeffrey Henry.

David J. McDade, Dist. Atty., William H. McClain, Asst. Dist. Atty., Douglasville, Harrison W. Kohler, Sr. Asst. Atty. Gen., Dept of Law, Michael J. Bowers, Atty. Gen., Atlanta, for appellees.

BENHAM, Presiding Justice.

Appellant was indicted in Douglas County for the murder of his twin brother on December 19, 1991, and filed a demand for trial during the next term of court. ¹ See OCGA § 17-7-171(a). In February 1993, the trial court denied appellant's motion to dismiss the charges for failure to try him timely pursuant to his demand for trial, and this court affirmed, concluding that appellant had not established a denial of equal protection. Henry v. State, 263 Ga. 417, 434 S.E.2d 469 (1993). ² On October 14, 1993, this court issued the remittitur, which was filed in the Office of the Clerk of the Superior Court of Douglas County the following day. The trial court did not make the remittitur the order of the trial court, yet set dates for a pre-trial hearing and the trial. Due to the trial court's failure to make this court's remittitur its order, appellant filed an application for a writ of prohibition and a petition for a writ of habeas corpus, which were heard and denied by another superior court judge (Case No. S94A0957). Appellant also filed a motion to recuse the trial judge, and a second motion to dismiss the prosecution for failure to comply timely with his demand for trial, which motions were denied by the trial court (Case No. S94A0959). Notices of appeal were filed on February 2 (Case No. S94A0957) and February 4, 1994 (Case No. S94A0959). We consolidated the appeals for argument and decision.

1. As four of appellant's five enumerated errors revolve around the efficacy of his demand for trial, we address initially the question of the time within which a demand for trial, made prior to an interlocutory appeal, must be met under OCGA § 17-7-171(b).

a) OCGA § 17-7-171(b) requires that a person accused of a capital crime be "absolutely discharged and acquitted" if he is not tried within the first two regular terms of court that are convened after the term in which the demand was filed, if juries were impaneled and qualified and the defendant was present in court announcing ready and requesting a trial in each of the two terms. Smith v. State, 261 Ga. 298(1), 404 S.E.2d 115 (1991). That section is similar to OCGA § 17-7-170(b), which establishes that a non-capital defendant must be tried pursuant to a demand for trial during the term of the demand or the next succeeding regular court term, subject to the same three-prong prerequisites set forth in § 17-7-171(b) and Smith v. State, 261 Ga. at 299, 404 S.E.2d 115. But see Street v. State, 211 Ga.App. 230, 438 S.E.2d 693 (1993). ³ In the case at bar, the State was required to try appellant, pursuant to his demand for trial made during the October 1991 term of court, by the end of the October 1992 term. Prior to the expiration of that time, however, appellant filed a notice of appeal from the denial of his January 1993 motion to dismiss for failure to honor timely the demand for trial. Both the State and appellant agree that the time within which appellant had to be tried was suspended while this court had jurisdiction of the appeal. They disagree as to the period of time following the trial court's resumption of jurisdiction of the case within which appellant had to be tried pursuant to his pre-appeal demand. Appellant contends that upon return of the remittitur from this court, the State had to try him within 53 days, the amount of time that remained in the October 1992 term when appellant filed his notice of appeal. The State, on the other hand, suggests that the running of the demand time should commence anew upon the return of the case to the trial court.

b) The initial question for determination is at what point, post-appeal, does the demand clock recommence ticking. In light of conflicting appellate decisions, the question is one of particular concern in the case at bar, where this court's remittitur was filed in the Douglas County Superior Court Clerk's Office on October 15, 1993, but was not entered on the minutes of the trial court.

In Chambers v. State, 262 Ga. 200(2), 415 S.E.2d 643 (1992), we held that the filing of a remittitur from an appellate court in the office of the clerk of the court below divests the appellate court of jurisdiction over the case and immediately reinvests the lower court with jurisdiction. While it is "good practice" to enter the remittitur upon the minutes and have it made the judgment of the lower court (Lyon v. Lyon, 103 Ga. 747, 751, 30 S.E. 575 (1898)), and "it has been the general, if not universal custom of trial courts to enter orders making the judgments of appellate courts the judgment of those courts[,] ... there is no statutory requirement to this effect." Hagan v. Robert & Co. Assoc., 222 Ga. 469, 471, 150 S.E.2d 663 (1966). However, when the trial court in some way exercises its jurisdiction over the case after the filing of the remittitur but before entering it on the minutes, it is "eminently proper for the judge to pass [a] nunc pro tunc order ... for it [is] his duty to take such action as would make the minutes show what disposition had been made of the case in the Supreme Court." Knox v. State, 113 Ga. 929, 932, 39 S.E. 330 (1901). See also Chambers v. State, supra. While it is clear from the foregoing that the trial court regains jurisdiction to try a defendant upon the filing of the remittitur in the clerk's office, the Court of Appeals held, in Ramirez v. State, 211 Ga.App. 356, 439 S.E.2d 4 (1993) (cert. denied 211 Ga.App. 905), that a defendant's pre-appeal demand for trial does not regain viability until the trial court enters an order making the appellate decision its order. Where, as here, the Chambers and Ramirez decisions are both factually apropos, a defendant who made a pre-appeal demand for trial is placed in a situation where the trial court may effectively eviscerate the demand by failing to enter the remittitur upon the minutes of the court. This anomalous development is the result of reliance in Ramirez on inopportune language in Dennis v. Grimes, 216 Ga. 671(2), 118 S.E.2d 923 (1961), where this court stated that "the new trial ... was granted upon the remittitur of this court being made the order of the lower court." In point of fact, the new trial was granted when the appellate court so ordered, and the trial court's duty was to effectuate the appellate judgment upon the filing with the clerk of the lower court of the remittitur ordering the new trial. See Lyon v. Lyon, 103 Ga. at 750, 30 S.E. 575 ("the effect of the grant of a new trial by the Supreme Court is ..." (emphasis supplied)). See also OCGA § 5-6-10 ("The decision of the appellate court and any direction awarded in the case shall be certified by the clerk to the court below.... The decision and direction shall be respected and carried into full effect in good faith by the court below") and OCGA § 17-8-34 ("When a case is sent back for trial to a [lower] court by the Supreme Court or Court of Appeals, the case shall be in order for trial ..."). We conclude that Ramirez, 211 Ga.App. 356, 439 S.E.2d 4, must be overruled to the extent it holds that a pre-appeal demand for trial is not effective post-appeal until the trial court makes the appellate court judgment the judgment of the lower court. To maintain consistency with previous decisions, we hold that the filing of the remittitur in the lower court should be the point in time at which the demand clock should resume ticking. The language in Dennis v. Grimes, 216 Ga. at 672, 118 S.E.2d 923, relied upon by the Ramirez court, is disapproved.

c) Having determined the point at which the State's duty to provide a trial pursuant to a defendant's demand recommences after appeal, we are left to determine the point by which the trial must occur in order to satisfy the defendant's demand. In doing so, we must balance a defendant's statutory right to protection "from the vexation, expense, and very often injustice of a trial long delayed" (Kerese v. State, 10 Ga. 95, 97 (1851)), and the State's need for a reasonable time frame in which to prepare and try its case. ⁴ See Denny v. State, 6 Ga. 491 (1849), and Ramirez v. State, 196 Ga.App. 11(2), 395 S.E.2d 315 (1990). See also Durham v. State, 9 Ga. 306, 309 (1851).

We start with the premise that a defendant who timely filed a pre-appeal demand for trial is not required to file a second demand upon return of the case to the trial court after an appeal. Dennis v. Grimes, 216 Ga. 671(1), 118 S.E.2d 923, supra. Further, the period of time within which a defendant must be tried pursuant to that demand is tolled while the appellate court has jurisdiction of the appeal. Id. Whether the tolling of appellate jurisdiction of the case results from an appeal following conviction or from a pre-trial appeal is of no consequence when deciding this question. See McIver v. State, 212 Ga.App. 670, 442 S.E.2d 855 (1994) (pre-trial appeal); Dennis v. Grimes, supra (post-conviction appeal); Ramirez v. State, 196 Ga.App. 11(2), 395 S.E.2d 315, supra (post-conviction appeal). Because we must ensure that "the rights of the prosecution are guarded" (Denny v. State, 6 Ga. at 494) by the provision of sufficient notice to the State that it must provide a trial (see Durham v. State, 9 Ga. at 309; Ramirez v. State, 196 Ga.App. 11(2), 395 S.E.2d 315), we cannot endorse appellant's suggestion that the demand time resumes at the point it was suspended by the filing of the notice of appeal. That method of calculation does not assure that the State has post-appeal notice of its duty to provide a...