Hubbard v. State
| Decision Date | 04 September 1985 |
| Docket Number | No. 42080,42080 |
| Citation | 333 S.E.2d 827,254 Ga. 694 |
| Parties | HUBBARD v. The STATE. |
| Court | Georgia Supreme Court |
Michael B. Perry, St. Marys, for Enoch Hubbard.
Glenn Thomas, Jr., Dist. Atty., Jesup, James A. Chamberlain, Jr., Asst. Dist. Atty., Brunswick, for the State.
Hubbard was convicted of theft by taking in the Superior Court of Camden County. The Court of Appeals reversed the conviction and remanded for a new trial, holding that the trial court had improperly denied the defendant the right to make opening and closing arguments. Hubbard v. State, 167 Ga.App. 32, 305 S.E.2d 849 (1983). After reversal, Hubbard made a demand for trial in superior court pursuant to OCGA § 17-7-170. However, Hubbard did not obtain the trial court's permission to file the demand as required by that code section. More than two terms passed, and again pursuant to § 17-7-170, Hubbard made a motion to dismiss. The trial court denied the motion, and granted Hubbard a certificate for immediate review, pursuant to the interlocutory appeals procedures in OCGA § 5-6-34(b). Hubbard did not, however, pursue the next step in the statute by applying to the Court of Appeals for permission to file the interlocutory appeal.
The case now comes to this court on certified questions from the Court of Appeals. The court asks if a criminal defendant must follow the interlocutory procedures of OCGA § 5-6-34(b) when appealing an order denying a motion to dismiss based on OCGA § 17-7-170. The court then asks, if the first question is answered affirmatively, whether the fact that the motion was made after reversal of the Court of Appeals but prior to retrial on the merits is a situation which dictates a different result.
In its certified questions, the Court of Appeals writes that under circumstances similar to that in the instant case, the court dismissed an action for lack of jurisdiction when an appellant did not pursue the proper interlocutory procedures under OCGA § 5-6-34(b). State v. Crapse, 173 Ga.App. 100(3), 325 S.E.2d 620 (1984). But, the Court of Appeals in its questions points to a decision of another panel of the Court of Appeals which reached a contrary result. Smith v. State, 169 Ga.App. 251, 312 S.E.2d 375 (1983). The Smith decision relied on the rationale of Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982), a double jeopardy case in which we recognized a right of direct appeal. We, in turn, relied on Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). There, the United States Supreme Court authorized appeal as of right from the denial of a plea of double jeopardy under the federal rule. 28 U.S.C. § 1291. We determined, following the same reasoning, that if a defendant is to be afforded the full protection of the double jeopardy clause, which is not limited to protection from double conviction but includes protection from the ordeal of trial itself, it is necessary to recognize the right of review before subsequent exposure to trial. In Smith, supra, an analogy between double jeopardy and the speedy trial requirements of OCGA § 17-7-170 was drawn, and we think correctly so.
OCGA § 17-7-170 was enacted to implement the constitutional provision for a speedy trial. Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902). .) In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. These values are of a magnitude similar to the values at stake in double jeopardy claims. The Supreme Court has pointed out...
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Sosniak v. State
...we extended the collateral order doctrine as developed in Abney, and applied to statutory speedy trial claims in Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985), to constitutional speedy trial claims in Callaway and Boseman. We did this and continued to do so in spite of several opinio......
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Coney v. State, A02A0440.
...of the U.S. Supreme Court on federal constitutional questions are binding on all courts. As Justice Gregory made clear in the 1985 case Hubbard v. State,3 citing Smith v. State4 and Patterson v. State,5 because of the express language of the statute, a defendant stands acquitted as a matter......
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Callaway v. State
...indirectly implicates the issue of double jeopardy resulting from the failure to grant an accused a speedy trial. See Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985), allowing interlocutory appeal from denial of a motion to dismiss based on the statutory demand which as to purpose is a......
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Tolbert v. Toole
...The denial of a motion for acquittal on statutory speedy trial grounds is immediately appealable. See Hubbard v. State, 254 Ga. 694, 695–696, 333 S.E.2d 827 (1985).8 Under OCGA § 9–14–48(d), a habeas corpus petitioner must have “made timely motion or objection or otherwise complied with Geo......