State v. Rustin

• Decision Date: 02 April 1993
• Docket Number: No. A92A2124,A92A2124
• Citation: State v. Rustin, 430 S.E.2d 765, 208 Ga.App. 431 (Ga. App. 1993)
• Parties: The STATE v. RUSTIN.
• Court: Georgia Court of Appeals

Page 765

430 S.E.2d 765

208 Ga.App. 431

The STATE v. RUSTIN.

No. A92A2124.

Court of Appeals of Georgia.

April 2, 1993.

W. Fletcher Sams, Dist. Atty. and Tarey B. Schell, Asst. Dist. Atty., for appellant.

James M. Kimbrough, III, Fayetteville, for appellee.

BLACKBURN, Judge.

Thomas Milton Rustin was charged with driving under the influence of alcohol. After his first conviction in the probate court was reversed in Rustin v. State, 192 Ga.App. 775, 386 S.E.2d 535 (1989), he requested a jury trial and the case was transferred to the superior court. Rustin then moved to dismiss on the ground that the prosecution was barred by the statute of limitation. The court granted this plea in bar, and the state appeals.

On September 30, 1988, Rustin was issued a uniform traffic citation and complaint charging him with having committed on the same date the offense of driving under the influence of alcohol in violation of OCGA § 40-6-391(a)(1). Rustin was convicted of DUI in the probate court in November 1988 and the conviction was affirmed in the superior court, but in Rustin, supra at 776-77(2), 386 S.E.2d 535, this court reversed the conviction because the record contained no written waiver of Rustin's right to have a jury trial. (That holding in Rustin was later disapproved by the Supreme Court in Nicholson v. State, 261 Ga. 197, 200(6), 403 S.E.2d 42 (1991), in which it was held that in the absence of a timely objection to proceeding in the probate court, the right to jury trial is waived.) Upon remand, Rustin requested a jury trial, and the case was transferred from the probate court to the superior court.

Pursuant to OCGA § 40-13-3, Rustin's case could not be tried in the superior court without a formal accusation, and for that reason, on November 19, 1991, the state filed an accusation against Rustin charging him with driving under the influence of alcohol (OCGA § 40-6-391(a)(1)). However, the accusation also charged Ruskin with a new offense, i.e., driving with an unlawful blood alcohol level (OCGA § 40-6-391(a)(4)). Both counts were based upon the same September 30, 1988, events that were the basis of the uniform traffic citation on which he had been prosecuted in the probate court. Rustin moved to have the case dismissed, contending that the accusation had been filed more than two years after commission of the crimes and therefore was barred by the two-year statute of limitation for misdemeanors contained in OCGA § 17-3-1(d). The superior court orally granted the plea in bar at a hearing on May 12, 1992. The state filed a notice of appeal on May 28, 1992, and on July 24, 1992, the superior court entered a written order granting the plea and dismissing the prosecution. The appeal was docketed in this court on July 28, 1992.

1. Rustin contends that this appeal must be dismissed because the state filed its notice of appeal before the judgment was entered. We disagree, as even though the premature notice of appeal was "erroneous and not in accordance with statutory command," we "reluctantly" will "review the case on its merits rather than dismiss it." Sharp v. State, 183 Ga.App. 641(1), 360 S.E.2d 50 (1987).

2. The state contends that the superior court erred in granting Rustin's plea in bar. We agree with the state's position with regard to the violation of OCGA § 40-6-391(a)(1) which was originally charged on September 30, 1988, but not as to the violation of OCGA § 40-6-391(a)(4) which was initially charged in the accusation filed on November 19, 1991.

OCGA § 17-3-1(d) provides that prosecution for misdemeanors must be commenced within two years after commission of the crime. A prosecution is "commenced" when an accusation or indictment is filed, and continues until final disposition of the case on appeal. OCGA § 16-1-3(14); Smith v. State, 190 Ga.App. 246, 378 S.E.2d 493 (1989). A DUI charge may be prosecuted in a probate or state court on a uniform traffic citation, which constitutes the accusation. OCGA §§ 40-13-1, 40-13-3; Boss v. State, 152 Ga.App. 169, 262 S.E.2d 527 (1979). Thus, Rustin's prosecution in the probate court for the DUI charge alleging a violation of OCGA § 40-6-391(a)(1) was commenced when he was issued the uniform traffic citation and complaint on September 30, 1988. The filing of a formal accusation in any court with jurisdiction over such offenses, other than a superior court, would have been a superfluity. See Majia v. State, 174 Ga.App. 432(1), 330 S.E.2d 171 (1985).

The trial court's grant of Rustin's plea in bar resulted out of consideration of the passage of time from the date of the alleged offenses and the date of the formal accusation filed on November 19, 1991, following this court's remand of the case because of the absence of a written waiver of the right to a jury trial. In Duncan v. State, 193 Ga.App. 793, 389 S.E.2d 365 (1989), this court held that the limitation period was not tolled during the pendency of a prior appeal, and that prosecution of the defendant under a subsequent formal accusation (which added a charge of simple battery) filed after the expiration of the limitation period was barred. However, prosecution of the defendant under the uniform traffic citation was still allowed, although the prosecution was limited to the offenses originally charged in that traffic citation. The same principle is applicable in the instant case.

Upon remand of this case to the probate court, Ruskin exercised his right to a jury trial, and the case was necessarily bound over to the superior court. Consequently, the state was then compelled to file a formal accusation because a uniform traffic citation and complaint cannot be made the basis for a trial in the superior court. OCGA § 40-13-3; Stone v. State, 151 Ga.App. 531, 260 S.E.2d 405 (1979). The prior appeal in this case did not result in a final disposition of the matter, and filing of the formal accusation in November 1991, as required by OCGA § 40-13-3 and as necessitated by Rustin's demand for a jury trial, in no way constituted commencement of a new prosecution with regard to the alleged violation of OCGA § 40-6-391(a)(1). Under the circumstances presented by this case, although the filing of the accusation in the superior court could not be considered a superfluity because of the requirements of OCGA § 40-13-3, it must be regarded as a continuation of the prosecution previously commenced. For that reason, the trial court erred in granting Rustin's plea in bar with regard to the charged violation of OCGA § 40-6-391(a)(1).

However, the accusation filed in November 1991 also included a new offense, i.e., an alleged violation of OCGA § 40-6-391(a)(4), driving with an unlawful blood alcohol level. Because that accusation was filed beyond the applicable limitation period, prosecution of this new offense was barred, notwithstanding the fact that it may have stemmed from the same conduct as the original DUI charge. Accordingly, the trial court properly granted Rustin's plea in bar with regard to the alleged violation of OCGA § 40-6-391(a)(4). Duncan v. State, supra.

The state contends that inclusion of the alleged violation of OCGA § 40-6-391(a)(4) in the November 1991 accusation was a permissible amendment, authorized...