State v. Collins, A91A0883

• Decision Date: 15 October 1991
• Docket Number: No. A91A0883,A91A0883
• Citation: 201 Ga.App. 500,411 S.E.2d 546
• Parties: The STATE v. COLLINS.
• Court: Georgia Court of Appeals

Page 546

411 S.E.2d 546

201 Ga.App. 500

The STATE v. COLLINS.

No. A91A0883.

Court of Appeals of Georgia.

Oct. 15, 1991.

Ralph L. Van Pelt, Jr., Dist. Atty., Mary Jane Palumbo, Asst. Dist. Atty., for appellant.

Christopher A. Townley, Rossville, for appellee.

McMURRAY, Presiding Judge.

The State appeals from the superior court's grant of defendant Collins' motion to acquit. Held:

Defendant, who was already on parole, was arrested on the above charges in June 1989. He was held in the Walker County jail until September 1989 and thereafter has been incarcerated in the Georgia State Penitentiary System. No hold or detainer was placed against the defendant in the State penitentiary by the prosecution. On November 9, 1989, defendant was charged by indictment with having committed the offenses of criminal attempt to commit kidnapping, burglary, criminal attempt to commit interference with custody, and simple battery. Pursuant to OCGA § 17-7-170, defendant filed his demand for trial. The demand for trial was filed on December 7, 1989, while qualified jurors were impaneled in the November 1989 term of the Superior Court of Walker County. Qualified jurors were impaneled in a subsequent term of court. Defendant, who took no action to interfere with his case being brought before a jury, was not tried during the two completed terms following his demand for trial.

The issue as phrased by the State is "whether an inmate incarcerated on an unrelated offense in a State Prison, who has never been arraigned, may file a demand for trial that will entitle him to a discharge if not tried in two terms pursuant to O.C.G.A. Section 17-7-170." An affirmative answer is clearly required.

First, we note that since no detainer was filed against defendant, OCGA § 42-6-3 is inapplicable to the case sub judice. We are concerned solely with the application of OCGA § 17-7-170 to the facts of the case sub judice.

The State contends defendant has not complied with the requirements of OCGA § 17-7-170 since he was not physically present and ready for trial during both terms of court following his demand. This presents an interesting issue as to whether such a requirement exists in relation to OCGA § 17-7-170. OCGA § 17-7-171(b), a similar statute applicable to capital offenses but not to the case sub judice, explicitly requires that at both terms "that the defendant was present in court announcing ready for trial and requesting a trial on the indictment." Such language does not appear in the provisions of OCGA § 17-7-170. This Court has held that the above language from OCGA § 17-7-171(b) applies only to capital offenses and that there is no similar provision applicable to cases governed by OCGA § 17-7-170. Ciprotti v. State, 190 Ga.App. 639, 641(4), 379 S.E.2d 802. See also State v. Crapse, 173 Ga.App. 100, 102(3), 325 S.E.2d 620 (overruled on other grounds, Hubbard v. State, 176 Ga.App. 622, 623(1), 337 S.E.2d 60) and Hunt v. State, 147 Ga.App. 787, 788, 250 S.E.2d 517. On the other hand, there also are cases which require the physical presence of a defendant in the trial court in order to pursue a demand under OCGA § 17-7-170. Daniels v. State, 199 Ga.App. 400, 405 S.E.2d 88; Luke v. State, 180 Ga.App. 378, 379, 349 S.E.2d 391; Smith v. State, 169 Ga.App. 251, 253(2), 312 S.E.2d 375; Hendricks v. State, 108 Ga.App. 259(1), 132 S.E.2d 845.

In our view, the correct line of cases recognizes a difference in the language of the two statutes and does not attempt to graft the physical presence requirement of OCGA § 17-7-171(b) onto OCGA § 17-7-170. OCGA § 17-7-170 is satisfied if a defendant is available for trial, whether physically present in court or not. Hendricks and its progeny, including Smith, Luke and Daniels, are overruled to the extent they conflict with our holding in the case sub judice. Nonetheless, we note that the decision in Luke would not have been different under our reasoning since that defendant, being incarcerated by a different sovereign, was not available for trial since there is no inherent authority in a court of this State to compel his presence under those circumstances. See Hunt. In contrast to Luke and Hunt, in the case sub judice, the superior court had authority to compel defendant's presence for trial, therefore OCGA § 17-7-170 was fully satisfied since defendant was available for trial. Flagg v. State, 11 Ga.App. 37, 38(2), 39(4), 74 S.E. 562. The superior court did not err in granting defendant's motion to acquit.

Judgment affirmed.

SOGNIER, C.J., CARLEY, P.J., and COOPER and ARNOLD SHULMAN, JJ., concur.

BIRDSONG, P.J., and POPE, BEASLEY and ANDREWS, JJ., concur specially.

ANDREWS, Judge, concurring specially.

While I agree with the result of the majority, I disagree with the majority's analysis of OCGA § 17-7-170 and with overruling Daniels v. State, 199 Ga.App. 400, 405 S.E.2d 88 (1991); Luke v. State, 180 Ga.App. 378, 349 S.E.2d 391 (1986); Smith v. State, 169 Ga.App. 251, 253(2), 312 S.E.2d 375 (1983); and Hendricks v. State, 108 Ga.App. 259(1), 132 S.E.2d 845 (1963), because I believe the history of OCGA § 17-7-170, including its origins in the common law, reflects that the defendant's presence or lack of voluntary absence is required to trigger discharge and acquittal under that section.

The majority rests its conclusion that the legislature meant to require presence in capital felonies, but not in other crimes, on a comparison of the language of Section 17-7-170 and Section 17-7-171. Section 17-7-171, concerned with capital felonies only, specifically mandates that "the defendant [be] present in court announcing ready for trial and requesting a trial on the indictment." This section was not enacted until 1952. Ga.Laws 1952, pp. 299, §§ 1, 2, as amended.

Section 17-7-170 had its origins in the English Habeas Corpus Act of 1679, as incorporated into the law of Georgia. Watkins, Digest of the Laws of Georgia 202 (1800); Schley, Digest of the English Statutes of Force in the State of Georgia 262, 272 (1826). Paragraph VII (2) of the Habeas Corpus Act provides "if any person or persons committed as aforesaid, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer and general gaol-delivery, to be brought to his trial shall not be indicted and tried the second term, sessions of oyer and terminer or general gaol-delivery, after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment." The primary object of this Act was release from prison of the accused. The principles of the Habeas Corpus Act were made a part of Georgia's original and later Constitutions, and the Act in its entirety printed with them as an Appendix. Ga. Const. Art. LX (1777); Watkins, supra at 16 (1800).

Georgia's Penal Code was enacted by the legislature in 1817. ¹ Prince's Digest of Georgia Laws, p. 344 et seq. (1820). Section XXIV of that Code states that "[e]very person, against whom a bill of indictment is found, shall be tried at the term of the court the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice, should require a postponement of the trial, and then the court shall allow a traverse or postponement of the trial until the next term of the court; and any person, indicted for an offence not affecting his or her life, and demanding a trial, which demand shall be placed upon the minutes of the court, shall be discharged, upon his or her giving bail to appear at the next court; and if not tried at said court, shall be absolutely discharged and acquitted of the offence contained in the indictment: provided, that at both terms juries were impanelled and able to try such offender; and every person against whom a bill of indictment has been found, who appears and demands his or her trial, at the first term after such bill shall have been found, and the officer prosecuting in behalf of the people cannot assign some legal or satisfactory reason for wishing a postponement of the trial, such as the absence of a material witness or witnesses, and a well-grounded expectation of being able to proceed on said trial at the next term; then the person so indicted, and demanding his or her trial, shall be absolutely discharged and acquitted of the offence contained and charged in the indictment." (Emphasis supplied.) This added to the basic habeas corpus principle of release from custody the mandatory acquittal if not so tried upon demand.

In 1833, a new Penal Code was passed. Ga. Laws, 1833, p. 143 et seq.; Cobb's Digest of Georgia Laws 832 et seq. (1851). Section XXIV of the 1817 Code was divided into two sections. The portion of that section set out above before the colon became Section 17, while the section following the colon became Section 18. It provided that "[a]ny person against whom a bill of indictment is found for an offence not affecting his or her life, may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, which demand shall be placed upon the minutes of the court; and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter, Provided, that at both terms there were juries empaneled and qualified to try such prisoner, then he or she shall be absolutely discharged and acquitted of the offense charged in the indictment."

Also to be considered in analyzing OCGA § 17-7-170 is the development of bail in criminal cases at common law and in the colonies. The 1777 Constitution provided that excessive bail would not be demanded. Ga. Const. Art. LIX (1777); Watkins, supra at 15 (1800). ² It did not mean, however, that bail was available to all charged with crimes. English law at that time provided that no justice of the peace would bail those accused of murder, manslaughter, escape from prison, arson, persons outlawed and those caught in the act of committing...