Reid v. State, 42954

• Decision Date: 14 November 1967
• Docket Number: No. 2,No. 42954,42954,2
• Citation: 158 S.E.2d 461,116 Ga.App. 640
• Parties: Bobby H. REID v. The STATE
• Court: Georgia Court of Appeals

Page 461

158 S.E.2d 461

116 Ga.App. 640

Bobby H. REID v. The STATE.

No. 42954.

Court of Appeals of Georgia, Division No. 2.

Nov. 14, 1967.

Syllabus by the Court

1. The refusal by a judge of a superior court to grant to a defendant in a criminal case not affecting his life his written motion for a speedy trial pursuant to his constitutional right thereto is a judgment appealable to the Court of Appeals under the Appellate Practice Act, Code Ann. § 6-701.

2. A defendant in a criminal case pending in a superior court of Georgia is entitled to a speedy trial by virtue of the Sixth Amendment of the Constitution of the United States and the due process clause of the Fourteenth Amendment of the Constitution of the United States.

3. The fact that a prisoner is confined as a prisoner in the State Penitentiary under a prior conviction does not impair, impede or delay his constitutional right to a speedy trial on a pending indictment or indictments in the trial court.

4. A prisoner confined as a prisoner in the State Penitentiary under a prior conviction is not required to pay expenses involved in his transportation from the State Penitentiary to the county of the superior court for trial of a pending indictment or indictments against him therein, or the expenses of his return from the county of his trial to the State Penitentiary. These expenses are a proper charge of the county of said trial court.

5. A writ of detainer lodged with the State Penitentiary for the detention of a prisoner confined pursuant to a prior conviction, for the purpose of being produced for trial on a pending indictment or indictments, is not subject to motion to quash pending the period of his confinement under such prior conviction.

6. Under the facts and circumstances of this case the judgment of the trial court in denying appellant's motion for a speedy trial is reversed, with direction.

Bobby H. Reid, pro se.

No appearance for appellee.

WHITMAN, Judge.

This is an appeal by appellant Reid from judgment of the Judge of Hall Superior Court, Northeastern Judicial Circuit (erroneously referred to in notice of appeal as Northwestern Judicial Circuit), of date March 8, 1967, denying a motion and demand by appellant of date February 10 (?), 1967, entitled 'Motion and Demand for a Speedy Trial and/or Motion to Quash Detainer,' which motion and judgment were filed in the office of the Clerk of Hall Superior Court on March 9, 1967. The appeal was transmitted to the Supreme Court of Georgia pursuant to the language of the appeal and the appeal together with brief of appellant and enumeration of errors was transmitted by the Supreme Court to this court. See Reid v. State, 223 Ga. 376, 155 S.E.2d 22.

The motion recites in substance that Reid was then confined in the Georgia State Prison in Reidsville, and that a detainer was placed against him on January 6, 1967 by the Sheriff of Hall County in relation to three indictments returned against him at the November term 1966 of Hall Superior Court, two of said indictments relating to alleged offenses of simple larceny of an automobile and the remaining indictment for violation of the Motor Vehicle Certificate of Title Act. The motion evidently was presented to the trial judge on March 8, 1967, prior to its filing in the clerk's office on March 9, 1967. The judgment on the motion provides: 'The court * * * finds that this petition is not properly filed in this court; the petitioner is now in the legal custody of the Georgia State Board of Corrections; the petitioner is not presently detained by or in the custody of this court or of any officer of this court and is not in the jurisdiction of this court. Furthermore, this court is doubtful that it has authority to order this county to bear the expense of transporting the petitioner from Reidsville to this county and the expense of returning the petitioner to Reidsville under these circumstances.

'Upon the completion of the sentence or whatever part of the sentence petitioner is presently serving and upon notification by the authorities now having custody of the petitioner that he is ready for release, this court hereby orders the sheriff of this county to proceed to the State Prison in Reidsville and to receive and transport petitioner to this county for the purpose of being tried for such charges as are then pending against the petitioner in this court.

'In the meantime, should petitioner desire to pay the expenses of his being transported to this county for the purpose of standing trial, upon notification by the sheriff of this county that he has received advance payment of reasonable expenses for transporting petitioner to and from Reidsville, this court will authorize the proper authorities of the State Board of Corrections to release petitioner to the sheriff of this county and will order the sheriff of this county to proceed with the transporting of petitioner to this county for the purpose of being tried on whatever charges are then pending against the petitioner.'

It will be noted from the motion that the movant therein 'demands a fair and speedy trial under Ga.Code Sections 27-2901, 27-1901, and under the Sixth (6th), Ninth (9th) and Fourteenth (14th) Amendments of the State and Federal Constitutions, or, either the detainer(s) be quashed during this term of court.' The reference to Code § 27-2901 is evidently a mistake. Paragraphs VI, IX and XIV of Section I of the Bill of Rights of the State Constitution (Code Ann. §§ 2-106, 2-109 and 2-114) have no relation to the right of a speedy trial. Paragraph V of Section I of the Bill of Rights of the State Constitution (Code Ann. § 2-105) is the provision of the State Constitution which relates to a speedy trial. Article IX of the Federal Constitution (Code § 1-809) has no relation to a speedy trial. Article VI (Code § 1-806) of the Federal Constitution relates to the right of a speedy trial, and Article XIV (Code § 1-815) by its due process of law clause has relation to the right of a speedy trial insofar as State action is concerned, as hereinafter indicated in this opinion.

The errors enumerated in this case are four in number. In substance they are (1) that the court erred in not granting a fair and speedy trial allegedly guaranteed under the Ninth Amendment to the Constitution of the State of Georgia and Code §§ 27-2901 and 27-1901, and also as guaranteed under the Sixth and Fourteenth Amendments to the Federal Constitution; (2) in stating that it did not have authority to authorize appellant to be transported from the Georgia State Prison to Hall Superior Court for trial; (3) in not recognizing and abiding by applicable authorities cited by appellant (in addition to the statutes and constitutional provisions, appellant refers to Blevins v. State, 113 Ga.App. 702, 149 S.E.2d 423), and (4) in stating that appellant is not detained or in custody of 'Hall County Court'; that 'Appellant is indirectly being held in custody and detained at the Georgia State Prison, Reidsville, Georgia (?) because of the rules of said prison appellant cannot be considered for transfer to a road camp, a better job, or considered for parole as long as the detainer remains against appellant.'

1. There is no motion on behalf of the State in this case that the appeal be dismissed on the ground that the judgment appealed from is not an appealable judgment. However, it is not only the right but the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. Drury v. City of Woodbine, 96 Ga.App. 158, 99 S.E.2d 550, and cases cited. See also Scott v. Minnix, 95 Ga.App. 589, 98 S.E.2d 196; Lockridge-Rogers Lumber Co. v. City of East Point, 97 Ga.App. 357, 103 S.E.2d 160.

In the exercise of this duty the court has had the occasion to consider the question of the appealability of the judgment appealed from in this case, and in that connection to consider the ruling in Sharpe v. State, 10 Ga.App. 212, 73 S.E. 33, followed in Maples v. State, 10 Ga.App. 786, 74 S.E. 89, wherein it was held that an order refusing to allow a demand for trial in a criminal case to be spread upon the minutes of the court is not such a final judgment as would support a bill of exceptions.

In considering the question of jurisdiction to entertain the appeal in this case, we pretermit passing on the effect of the failure of appellant both in his appeal and in the enumeration of errors expressly to refer to the right of a speedy trial under Paragraph V of Article I, Section I of the State Constitution in relation to a speedy trial, the only reference in the appeal and in the enumeration of errors being to Code § 27-1901, known as the Demand Statute.

The Sharpe case undertakes to distinguish Dacey v. State, 15 Ga. 286, decided prior to the Code of 1863 therein referred to, but the Sharpe case does not mention the case of Moore v. State, 63 Ga. 165, decided in 1879, subsequently to the Code of 1863. In the Moore case, the Supreme Court set forth and cited with approval both the Dacey case and Couch v. State, 28 Ga. 64, as supporting the view that the remedy for the refusal to enter a demand for trial on the minutes of the court is by writ of error, which is the equivalent of an appeal under the Appellate Procedure Act.

The decision of the Supreme Court in the Moore case, being a Supreme Court decision, is regarded as controlling, and the rulings in the Sharpe and Maples cases, therefore, will not be followed. Code Ann. § 2-3708; Mutual Federal Savings & Loan Asso. v. Campbell Coal Co., 105 Ga.App. 185, 123 S.E.2d 925.

This comports also with the practice of this court below in Blevins v. State, 113 Ga.App. 413, 148 S.E.2d 192, and s.c. 113 Ga.App. 702, 149 S.E.2d 423, wherein appeals were entertained and passed on without any question of jurisdiction being raised or determined.

The appeal should not be dismissed and will be decided on its merits.

...