Newman v. State
| Decision Date | 21 April 1970 |
| Docket Number | No. 3,No. 45254,45254,3 |
| Citation | 175 S.E.2d 144,121 Ga.App. 692 |
| Parties | Leon C. NEWMAN v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Placing a criminal case on the dead docket over a defendant's objection is an abuse of the trial court's discretion in that it violates the right to a speedy trial as guaranteed by both the Georgia and Federal Constitutions.
Defendant appeals from the denial of his motion for acquittal and from the order placing his case on the dead docket.
Defendant was indicted in January 1968. The case was called for trial in March and April and on both occasions defendant obtained a continuance. The case was also continued in June, although there is some dispute as to which side made the motion. When called again in September, the State asked for a continuance because the prosecuting witness was in Viet Nam. The same day defendant filed a demand for trial with the clerk. The State requested and received continuances in October, November and December, at which time the court ordered that the demand for trial be spread upon the minutes. In January and February of 1969, continuances were again granted to the State due to the absence of its witness. In February defendant's motion for acquittal was heard and denied, and the State's motion to place the case on the dead docket was granted. The trial court certified the order for immediate review.
Larry Cohran, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Tony H. Hight, Joel M. Feldman, Atlanta, for appellee.
1. The motion to dismiss the appeal is denied.
2. The statutory right to demand a speedy trial is set out in Code § 27-1901:
Defendant filed his demand with the clerk after the second term following indictment so that special permission of the court would be required to give the demand effect. Without more, the December 18 order spreading the demand upon the minutes would indicate that the court had given 'special permission' under § 27-1901, since the section only calls for such recording in the case of a valid demand, i.e., by right or by special permission. The function of placing the demand on the minutes is to give notice to the State that the time in which trial must be had is running. Moore v. State, 63 Ga. 165. It would serve no purpose to record a demand in the usual fashion when permission to make it had not been granted.
However, doubt is cast on the meaning of this order by subsequent actions of the trial court. After the next succeeding regular term, the same judge denied defendant's motion for acquittal pursuant to Code § 27-1901, stating that he did not believe he had the power to do so. The transcript leads us to believe that the judge might have been unaware of the 'special permission' feature of the statute and therefore could not have been granting it by the December 18 order. We will not determine the trial court's intent by sheer speculation. We will remand with direction that the trial court construe its December 18 order. See 60 C.J.S. Motions and Orders § 64; Jordan v. Russell, 48 Ga.App. 200, 172 S.E. 469. If the court declares that defendant was thereby given special permission to make a demand, then he has already been acquitted by operation of law and nothing more remains to be done. Thornton v. State, 7 Ga.App. 752, 67 S.E. 1055; Bishop v. State, 11 Ga.App. 296, 75 S.E. 165.
3. If the trial court declares this was not the intent or meaning of the order, then it must make a definitive ruling either granting or refusing defendant permission to make the late demand. The exercise of discretion under Code § 27-1901 lies with the trial judge rather than the...
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