Mays v. State, 27327
| Decision Date | 10 October 1972 |
| Docket Number | No. 27327,27327 |
| Citation | 193 S.E.2d 825,229 Ga. 609 |
| Parties | Houston E. MAYS v. The STATE. |
| Court | Georgia Supreme Court |
Glenn Zell, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Frank M. Palmour, Deputy Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant appeals a conviction and sentence of 20 years imprisonment for armed robbery. He allegedly committed the offense on January 15, 1970 and was indicted on February 3, 1970. The trial commenced on September 14, 1971. He asserts error on (1) the denial of a speedy trial, (2) the retroactive application of the bifurcated procedure for determining guilt or innocence and sentence, and (3) the refusal of a new trial. Held:
1. In asserting error on the denial of a speedy trial in violation of the Sixth and Fourteenth Amendments the defendant insists that his letter dated February 4, 1971, posted from McAlester, Oklahoma, on February 10, 1971, where he was then an inmate of the Oklahoma State Penitentiary, addressed by name and not position to the individual who is the District Attorney of Fulton Superior Court, citing the Sixth Amendment, and requesting a trial within 60 days or dismissal of the indictment, should have been construed as a demand for trial entitling him to acquittal after two regular court terms had passed without trial.
Under the Georgia statute the defendant may enter a demand at the term at which the indictment is found or the next regular term, or thereafter by special permission of the court. Code Ann. § 27-1901.1. Following the term at which the demand is filed, without trial during the next two terms convened and adjourned, the defendant must be acquitted, if during the two terms there were juries empaneled and qualified to try the defendant and the defendant was present in court announcing ready for trial and requesting trial. Code Ann. § 27-1901.2.
The two-month terms of Fulton Superior Court commence in January, March, May, July, September, and November. Assuming without deciding that the letter to the district attorney was a valid demand for trial received at some date subsequent to the postmarked date of February 10, 1971, during the January or later terms, the demand was not timely without special permission of the court. There is no showing of any special permission in respect to this letter, or that during either of two applicable terms there were juries empaneled and qualified to try the defendant, or that the defendant was present in court announcing ready for and requesting trial. On the contrary, it affirmatively appears from the pleadings filed by the defendant and the record that the defendant first learned of the indictment on July 7, 1970, while serving a 5-year sentence in the Oklahoma State penitentiary which commenced June 29, 1970, and that he did nothing to obtain a speedy trial until after he received a letter from the district attorney dated January 26, 1971, informing him that his case would be placed on the calendar in Fulton Superior Court for trial at such time as he was released from custody in Oklahoma and in the custody of the Sheriff...
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