Roberts v. State, No. A06A0034.

• Decision Date: 17 May 2006
• Docket Number: No. A06A0034.
• Citation: 279 Ga. App. 434,631 S.E.2d 480
• Parties: ROBERTS v. The STATE.
• Court: Georgia Court of Appeals

279 Ga. App. 434

631 S.E.2d 480

ROBERTS v. The STATE.

No. A06A0034.

Court of Appeals of Georgia.

May 17, 2006.

Brian Steel, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Anne E. Green, Stephany J. Lewis, Assistant District Attorneys, for appellee.

BARNES, Judge.

James Earl Roberts appeals the trial court's denial of his plea of former jeopardy based on a constitutional speedy trial violation. For the reasons that follow, we affirm.

Roberts previously appealed the trial court's denial of his motion for discharge and acquittal based on the speedy trial provisions of OCGA § 17-7-170, and both this court and the Supreme Court of Georgia affirmed the trial court. Roberts v. State, 263 Ga.App. 472, 588 S.E.2d 242 (2003), aff'd, 278 Ga. 610, 604 S.E.2d 781 (2004). Those appeals arose because Roberts appeared in municipal court for a preliminary hearing on June 28, 2001, but before the hearing began, the prosecutor announced that Roberts had been indicted and was no longer entitled to a preliminary hearing. The judge adjourned the proceedings, and Roberts filed a speedy trial demand in superior court later that day. The State subsequently moved the trial court to dismiss or deny the speedy trial demand, and the trial court granted the motion on September 20, 2001. The court held that, contrary to the prosecutor's representation in municipal court that the indictment had already been filed, the indictment was not filed until the next day, after Roberts filed his speedy trial demand. Thus the demand was fatally premature.

Roberts then filed a motion for acquittal as a matter of law pursuant to the speedy trial demand statute, OCGA § 17-7-170, and moved to stay his trial until the court ruled on his motion for acquittal. The trial court finally denied Roberts' motion for acquittal in October 2002. The court also quashed the indictment, which charged Roberts with fifteen counts of aggravated child molestation and eight counts of child molestation, finding that Roberts had not received the preliminary hearing to which he was statutorily entitled.

Roberts appealed the denial of his motion for acquittal, and both this court and the Supreme Court of Georgia affirmed because his speedy trial demand, having been filed the day before the indictment was filed, was a nullity. The Supreme Court held also that the doctrine of judicial estoppel does not apply to criminal cases, and thus Roberts could not rely on the prosecutor's representation that the indictment had already been filed. Roberts v. State, supra, 278 Ga. at 612-613, 604 S.E.2d 781. The remittitur was transmitted from this court to the superior court clerk's office on December 2, 2004.

Meanwhile, in November 2002, after Roberts filed his notice of appeal regarding the denial of his motion for acquittal, a grand jury indicted Roberts a second time for the same offenses. In March 2003, Roberts moved to quash the second indictment, arguing that the State could not indict him while the denial of his motion for acquittal was on appeal. Roberts also moved in the alternative to file an out-of-time demand for a speedy trial if his motion to quash failed. At a hearing in May 2003, the State noted that the trial court had quashed the first indictment, and thus the State no longer had a case pending against Roberts until it indicted him the second time. The State also said that it did not intend to try him while his appeal was pending because the results of the appeal could dispositively foreclose it from doing so, but that it indicted him again because the statute of limitation was not tolled while Roberts' appeal was pending. The trial court declined to rule on the substance of Roberts' motions, merely maintaining the status quo. Indeed, Roberts was the only one seeking substantive rulings or a trial on the second indictment while the appeal was pending, and he candidly admitted during a hearing after the remittitur was returned that he was seeking a trial because he could then argue that it was a nullity if it were to take place while the appeal was pending.

The trial court denied both the motion to quash the second indictment and the motion to file an out-of-time appeal. Roberts filed three subsequent pleas of former jeopardy, arguing that the delay in trying his case violated his constitutional right to a speedy trial, that the second indictment should have been quashed, and that a third indictment would be prohibited by OCGA § 17-7-53.1, which bars a third indictment if two prior indictments on the same subject have been quashed. The trial court did not hear the motions because jurisdiction was still in the appellate courts.

After the remittitur was returned to the trial court in December 2004, the trial court held a hearing in April 2005 on Roberts' plea in bar and his motion to dismiss the second indictment based on a violation of his constitutional right to a speedy trial. It denied both motions in May 2005, and Roberts appealed. He argues that the trial court abused its discretion by denying his claim that the State violated his due process rights by waiting more than four years to bring his case to trial.

"A speedy trial is guaranteed an accused by the Sixth Amendment to the Constitution of the United States, and also . . . Art. I, Sec. I, Par. XI (a) of the 1983 Ga. Constitution." (Citation and punctuation omitted.) Boseman v. State, 263 Ga. 730, 731(1), 438 S.E.2d 626 (1994).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused's constitutional right to a speedy trial had been violated ... (a) [t]he length of the delay, (b) the reason for the delay, (c) the defendant's assertion of his right, and (d) the prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.

Washington v. State, 243 Ga. 329, 330(1), 253 S.E.2d 719 (1979).

1. Roberts argues that the State lacked jurisdiction to bring the second indictment while his motion for acquittal was on appeal, and thus any delay in bringing his case to trial has prejudiced his defense because he was being forced to trial on a null indictment. If the indictment is invalid, then the State cannot proceed against Roberts at all, and thus we will consider this issue first.

Filing a notice of appeal divests the trial court of jurisdiction in some matters, but not in all. "In a criminal case, the filing of a notice of appeal merely deprives the trial court of its power to execute the sentence." (Citation and punctuation omitted.) Waters v. State, 174 Ga.App. 438, 439(1), 330 S.E.2d 177 (1985). Generally a trial court may not alter a judgment or order while an appeal of that particular judgment or order is pending before the appellate court, nor may a trial court initiate proceedings that require a ruling on the exact matter being appealed. For example, the trial and conviction of a defendant that take place while he appeals the denial of a motion to suppress is null and void. Chambers v. State, 262 Ga. 200, 415 S.E.2d 643 (1992). The trial court also cannot rule on a motion for new trial after the notice of appeal has been filed, Peterson v. State, 274 Ga. 165, 171(6), 549 S.E.2d 387 (2001); or vacate and reenter a probation revocation order while that order is on appeal. Styles v. State, 245 Ga.App. 90, 91, 537 S.E.2d 377 (2000). All of these prohibitions forbid trial court actions that directly affect an issue on appeal.

On the other hand, "such loss of jurisdiction is limited to only those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters." Styles v. State, supra 245 Ga.App. at 92, 537 S.E.2d 377. (Blackburn, J., concurring specially). For example, "a trial court may amend [an] order denying a plea of former jeopardy, nunc pro tunc, to find the plea dilatory and frivolous, even though a notice of appeal has been filed. Filing a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court." (Footnote omitted.) Strickland v. State, 258 Ga. 764, 765-766(1), 373 S.E.2d 736 (1988), overruled in part on other grounds, Washington v. State, 276 Ga. 655, 581 S.E.2d 518 (2003). A trial court also retains jurisdiction to rule on a motion for withdrawal and substitution of defense counsel, Elrod v. State, 222 Ga.App. 704, 705(1), 475 S.E.2d 710 (1996); to appoint appellate counsel, Spear v. State, 271 Ga.App. 845, n. 1, 610 S.E.2d 642 (2005); to dismiss an appeal and to assist in preparing the record, State v. James, 211 Ga.App. 149, 150(2), 438 S.E.2d 399 (1993); and to consider the State's petition to nolle prosequi a second indictment after the defendant filed a notice of appeal from the court's former jeopardy ruling on the second indictment. State v. Lejeune, 276 Ga. 179, 184-185(4), 576 S.E.2d 888 (2003); Waters v. State, supra, 174 Ga.App. at 439 330 S.E.2d 177. Based on the above, we hold that, considering the peculiar facts and circumstances of this case, the trial court did not err in finding that "the State had the...