Ramirez v. State, A93A1384
| Decision Date | 26 October 1993 |
| Docket Number | No. A93A1384,A93A1384 |
| Citation | 211 Ga.App. 356,439 S.E.2d 4 |
| Parties | RAMIREZ v. The STATE. |
| Court | Georgia Court of Appeals |
Michael M. White, for appellant.
Daniel Porter, Dist. Atty., Debra K. Turner, Asst. Dist. Atty., for appellee.
This case marks appellant's fourth appeal to this court. Appellant's sole enumeration of error is the trial court's denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170.
In February 1988, during the January 1988 term of the Gwinnett Superior Court, appellant was indicted for trafficking in cocaine and filed a demand for speedy trial pursuant to OCGA § 17-7-170. The Gwinnett Circuit has regular terms of court in January, March, May, July, September and November. See OCGA § 15-6-3(20). Appellant was tried and convicted during the March term, but that conviction was reversed in appellant's first appeal to this court. See Ramirez v. State, 190 Ga.App. 889, 380 S.E.2d 323 (1989). Appellant's case was called for retrial in August 1989, and appellant filed a motion for discharge and acquittal which was denied by the trial court. On appeal, we affirmed the trial court's denial of that motion in Ramirez v. State, 196 Ga.App. 11, 395 S.E.2d 315 (1990). Appellant's second trial resulted in a mistrial, and his third trial, which took place in January 1991, resulted in conviction. However, that conviction was reversed in Ramirez v. State, 205 Ga.App. 217, 422 S.E.2d 3 (1992). The remittitur was filed in the clerk's office on October 26, 1992, but the judgment on the remittitur was not filed until November 4, 1992. In February 1993, appellant's case was again called for trial, and appellant filed a motion for discharge and acquittal on the ground that he was not tried within two regular terms of court. The trial court denied the motion and this direct appeal follows. Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).
Appellant contends that his demand for speedy trial became operative on October 26, 1992, when the remittitur was filed with the clerk and that the failure to try him by the end of the November term entitled him to discharge and acquittal under OCGA § 17-7-170. The State argues that appellant's demand for speedy trial did not become operative until November 4, 1992, when the judgment was entered on the remittitur. The Supreme Court of Georgia provided some guidance on this question in Dennis v. Grimes, 216 Ga. 671, 118 S.E.2d 923 (1961), a habeas corpus case in which there was a demand for speedy trial pursuant to Ga.Code Ann. § 27-1901, the predecessor to OCGA § 17-7-170, and a reversal of that conviction on appeal. The Supreme Court stated that "the new trial ... was granted upon the remittitur of ...
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Ramirez v. State
...11, 395 S.E.2d 315; Moreno v. State, 204 Ga.App. 463, 419 S.E.2d 735; Ramirez v. State, 205 Ga.App. 217, 422 S.E.2d 3; Ramirez v. State, 211 Ga.App. 356, 439 S.E.2d 4. Pursuant to an OCGA § 17-7-170 demand for trial, defendant and co-defendant Moreno were tried before a jury and convicted o......
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Henry v. James
...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 ent......
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Williams v. State
...v. James, 264 Ga. 527, 530(1)(b), 449 S.E.2d 79 (1994); State v. Grant, 217 Ga.App. 358, 359, 457 S.E.2d 263 (1995); Ramirez v. State, 211 Ga.App. 356, 439 S.E.2d 4 (1993), rev'd on other grounds, Henry v. James, 264 Ga. at 529-530(1)(b), 449 S.E.2d 79. This case law was abrogated by the le......
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Criminal Law - Frank C. Mills, Iii
...App. at 673, 440 S.E.2d at 78. 407. Id. 408. 211 Ga. App. 672, 440 S.E.2d 76 (1994). 409. Id. 410. Id. at 674, 440 S.E.2d at 78. 411. 211 Ga. App. 356, 439 S.E.2d 4 (1993). 412. Id. at 356, 439 S.E.2d at 4. But see Henry v. State, 264 Ga. 527, 449 S.E.2d 79 (1994). Henry held that the deman......