Smith v. State, 66858
| Decision Date | 29 November 1983 |
| Docket Number | No. 66858,66858 |
| Citation | 312 S.E.2d 375,169 Ga.App. 251 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Geraldine Smith, pro se.
Timothy G. Madison, Dist. Atty., Larry L. Duttweiler, Asst. Dist. Atty., for appellee.
Appellant brings the instant direct appeal from an order denying her motion made pursuant to OCGA § 17-7-170 (Code Ann. § 27-1901). That statute provides that a defendant in a criminal case "shall be absolutely discharged and acquitted" if, after timely filing a demand for trial, he is not then tried during the term in which the demand is made or the next succeeding regular term thereafter, "provided at both court terms there were juries impanelled and qualified to try him ..."
1. The first issue to be determined is whether the denial of an OCGA § 17-7-170 (Code Ann. § 27-1901) motion is directly appealable. Asserting that the denial of appellant's motion is not a final order, the state has moved to dismiss the instant appeal because no certificate of immediate review has been secured and no application for an interlocutory appeal has been granted. It is true that, at least prior to Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982), orders such as that appealed from in the instant case were considered as being interlocutory in nature. See generally Letbedder v. State, 129 Ga.App. 196, 199 S.E.2d 270 (1973). In Patterson, however, the Supreme Court determined that "a broader construction" of direct appealability "is appropriate where the order appealed from is one denying a plea of double jeopardy." Patterson v. State, supra 248 Ga. at 877, 287 S.E.2d 7. Appellant in the instant case analogizes the order from which she appeals to the denial of a plea of double jeopardy and contends that her direct appeal is properly before us pursuant to Patterson.
Upon a preliminary consideration, there would appear to be a fundamental difference between a plea of double jeopardy and a motion made pursuant to OCGA § 17-7-170 (Code Ann. § 27-1901). A plea of double jeopardy is premised upon the alleged violation of an individual's " 'guarantee against being twice put to trial for the same offense...' " (Emphasis supplied.) Patterson v. State, supra at 876, 287 S.E.2d 7. On the other hand, an OCGA § 17-7-170 (Code Ann. § 27-1901) motion proceeds on the theory that the defendant has never been put in jeopardy and tried for the crime charged. Under this view, it would follow that the denial of an OCGA § 17-7-170 (Code Ann. § 27-1901) motion does not constitute the denial of a plea of double jeopardy--there being no former trial--but is merely a determination that the state's previous failure to place the accused in jeopardy does not bar the state from so placing him in the future.
However, further consideration of the issue leads to the conclusion that the above analysis constitutes too narrow a view of the role that OCGA § 17-7-170 (Code Ann. § 27-1901) plays in our criminal procedure. (Emphasis supplied.) State v. King, 164 Ga.App. 834, 298 S.E.2d 586 (1982). Thus, the denial of an OCGA § 17-7-170 (Code Ann. § 27-1901) motion does not constitute the trial court's refusal to grant the accused an acquittal and thereby terminate the original prosecution. Rather, the denial of an OCGA § 17-7-170 (Code Ann. § 27-1901) motion constitutes the trial court's determination that the prosecution has not already resulted in an automatic acquittal of the accused by operation of law. Therefore, to the extent that the denial of an OCGA § 17-7-170 (Code Ann. § 27-1901) motion allows the prosecution to proceed, it is an adjudication that the impending trial of the accused will not place him in jeopardy for the commission of a crime for which he has previously been acquitted. To this extent, the denial of an OCGA § 17-7-170 motion is--at the very least--in the nature of a ruling on the accused's double jeopardy rights. If the OCGA § 17-7-170 (Code Ann. § 27-1901) motion is erroneously denied, and the accused is subsequently tried and convicted, the conviction will be reversed on double jeopardy grounds, but only after the accused has been forced to undergo a trial which never should have been held. See Day v. State, 163 Ga.App. 839, 296 S.E.2d 145 (1982). Accordingly, the same "compelling reasons" which led the Supreme Court in Patterson v. State, supra, to hold that the denial of a plea of double jeopardy is directly appealable, lead us to the same conclusion with regard to the denial of an OCGA § 17-7-170 (Code Ann. § 27-1901) motion. (Emphasis in original.) Patterson v. State, supra 248 Ga. at 876, 287 S.E.2d 7.
Accordingly, the state's motion to dismiss the instant appeal as interlocutory is denied.
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