State v. Fly, A89A1001
| Citation | 193 Ga.App. 190,387 S.E.2d 347 |
| Decision Date | 25 September 1989 |
| Docket Number | No. A89A1001,A89A1001 |
| Parties | The STATE v. FLY. |
| Court | United States Court of Appeals (Georgia) |
James L. Webb, Sol., Helen A. Roan, Lee O'Brien, Asst. Solicitors, for appellant.
Nica J. Hersch, Atlanta, for appellee.
As a preliminary matter, appellee's motion to dismiss the appeal is denied inasmuch as the appellant's brief was filed on March 13, the last day permitted.
Defendant was charged with the offense of criminal trespass. OCGA § 16-7-21. The court found as fact that he was arraigned and pled not guilty on January 6, 1989, although the prosecuting officer did not physically enter the arraignment and plea on the accusation as he or she was mandated to do pursuant to OCGA § 17-7-96. The case was set for bench trial on January 9, at which time the State announced that it was not prepared to proceed. Defendant sought dismissal of the charge, which was denied.
A continuance in effect was granted to the State and the case was reset for trial on January 18. Again the State announced it was not ready to proceed. No reason appears in the record. Defendant announced "ready" and again requested that the charge be dismissed. The court did not grant this request and instead instructed "that issue be joined," which we take to mean that the prosecuting attorney complete the written record which had not been done as required on January 6. The State's counsel refused to do so on the ground that it was not prepared to go forward with the trial.
The court regarded the issue as having been joined and the case as ripe for trial, and there being no evidence presented by the State, which had the burden to present its evidence then, the court entered an acquittal. The State appealed on the ground that acquittal was precluded because issue had not been joined and the court heard no evidence.
1. Issue was joined when defendant pleaded not guilty at arraignment. OCGA § 17-7-94; Bryans v. State, 34 Ga. 323 (1866); Hardwick v. State, 231 Ga. 181, 183(6), 200 S.E.2d 728 (1973); Waller v. State, 251 Ga. 124, 127(5), 303 S.E.2d 437 (1983), reversed on other grounds, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). By formally denying the charge, his plea formed the issue of whether he was or was not guilty of the charge. The prosecutor's initial failure to record it and later refusal to do so did not avoid the issue being joined de jure. Otherwise the State could avoid ad infinitum the trial of the case no matter how many times it was set, and this would frustrate the purposes of OCGA §§ 17-8-33, 17-8-21, and 17-8-22. It is the clerk's recordation on the minutes which controls, OCGA § 17-7-94. We assume this was done, as the court did not order it accomplished as provided by OCGA § 17-7-97, before proceeding with the trial. In addition, " Sapp v. State, 184 Ga.App. 527, 529(4), 362 S.E.2d 406 (1987).
2. As for the absence of evidence, the State-cited authority, State v. Cooperman, 147 Ga.App. 556, 249 S.E.2d 358 (1978) is not on point. Issue had not been joined, and there was no opportunity for the State to present evidence. Here the State had no evidence ready to present when the trial commenced. The court was not compelled to grant another continuance, which was not even sought by the State; the governing statutory provisions actually weighed against it.
Public policy is that the accused be tried in the same term at which the accusation is made, unless a material witness is absent or the principles of justice require continuance. OCGA § 17-8-33. There is nothing in the record to indicate the reason for the State's unpreparedness. Continuance is not to be...
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State v. Brown
...431 S.E.2d 708 (1993), reversed in part on other grounds, Vansant v. State, 264 Ga. 319, 443 S.E.2d 474 (1994) ; State v. Fly, 193 Ga.App. 190, 191(2), 387 S.E.2d 347 (1989) ; State v. Warren, 133 Ga.App. 793, 795–796, 213 S.E.2d 53 (1975). See also State v. Caffee, 291 Ga. 31, 33(2), 728 S......
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State v. Vansant
...charge is not generally appealable by the State. See State v. Warren, 133 Ga.App. 793, 213 S.E.2d 53 (1975); see also State v. Fly, 193 Ga.App. 190, 387 S.E.2d 347 (1989). An exception exists where, as here, the trial court dismisses charges on erroneous grounds before jeopardy attaches. Se......
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State v. Walker
...remedies for prosecutorial delays and abuses shy of effectively permitting dismissals with prejudice. See, e.g., State v. Fly , 193 Ga. App. 190, 191, 387 S.E.2d 347 (1989) (where State refused to go forward with trial on the ground that it was not prepared to go forward with trial, court "......
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The State v. Brown
...(431 SE2d 708) (1993), reversed in part on other grounds, Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994); State v. Fly, 193 Ga. App. 190, 191 (2) (387 SE2d 347) (1989); State v. Warren, 133 Ga. App. 793, 795-796 (213 SE2d 53) (1975). See also State v. Caffee, 291 Ga. 31, 33 (2) (728 SE......