State v. Serio, A02A1460.

• Decision Date: 27 August 2002
• Docket Number: No. A02A1460.,A02A1460.
• Citation: 257 Ga. App. 369,571 S.E.2d 168
• Parties: The STATE v. SERIO.
• Court: Georgia Court of Appeals

571 S.E.2d 168

257 Ga. App. 369

The STATE v. SERIO.

No. A02A1460.

Court of Appeals of Georgia.

August 27, 2002.

Reconsideration Denied September 13, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Gary S. Vey, Jonathan D. Aurelia, Asst. Solicitors-General, for appellant.

Monte K. Davis, Atlanta, for appellee.

PHIPPS, Judge.

The State appeals an order of the State Court of Gwinnett County granting Sarah Jane Serio's motion to transfer her DUI case to the Recorder's Court of Gwinnett County. The State argues that the transfer order is invalid because, among other things, Serio's motion was untimely and the state court lacked authority to transfer the case. We agree and reverse.

On July 26, 2001, Serio was arrested in Gwinnett County and cited for DUI and failure to maintain lane. The citations ordered her to answer the charges in the Recorder's Court of Gwinnett County. At her arraignment on October 9, Serio waived her right to a jury trial. On October 11, the Gwinnett County Solicitor-General filed an accusation in the State Court of Gwinnett County charging Serio with DUI and failure to maintain lane. On October 12, the solicitor-general moved for an order of nolle prosequi on the charges pending in the recorder's court, and that court granted the motion the same day.

Arraignment in the state court was scheduled for November 29, but on November 19 Serio filed a waiver of formal arraignment. On December 10, she filed a motion to remand or transfer the case back to the recorder's court. The state court granted the motion, finding as follows:

The Recorder's Court has the jurisdiction and the capability to provide this Defendant with her requested bench trial. Defendant Serio never filed a demand for jury. OCGA § 40-6-376(a) provides that the [prosecutor] may "charge" a defendant with either a violation of the state statute or of the local ordinance. However, the State may not prosecute a defendant in both the Recorder's Court and the State Court at the same time. The accusation in the within case was improper while the Recorder's Court of Gwinnett County maintained jurisdiction over this Defendant and the charges which form the basis for this accusation. In addition, the intent of OCGA§ 40-6-376(a) is to allow the State to prosecute traffic charges in the lowest court appropriate where it is more cost effective to the citizens of this County and State. It is not for the purpose of allowing the State to "judge shop."

The State then appealed.

1. Serio has moved to dismiss the appeal for lack of jurisdiction. The State contends that jurisdiction is proper under OCGA § 5-7-1(a)(1), which grants the State the right to appeal in a criminal case "[f]rom an order, decision, or judgment setting aside or dismissing any indictment, accusation, ... or any count thereof." According to the State, the state court's order transferring the case to recorder's court effectively set aside or dismissed the state court accusation against Serio and precluded her prosecution there. Serio argues that the order did not end Serio's prosecution, but merely transferred it to a different court.

We agree with the State. Although the state court's order, as written, simply transferred the case to recorder's court, we examine the substantive effect of the order, not the label it uses. The substantive effect of the transfer was to terminate the prosecution of Serio in state court. The charges against her remain pending in recorder's court, but the state court accusation has been set aside or dismissed. Thus, this appeal is proper under OCGA § 5-7-1(a)(1), and we deny the motion to dismiss.¹

Serio's reliance on State v. Creel² is misplaced. In Creel, the State appealed from a trial court order placing a criminal case on the dead docket. We held that OCGA § 5-7-1(a)(1) did not supply jurisdiction because dead docketing does not preclude future prosecution of a case in the same court.³ The order in this case, by contrast, does preclude prosecution of Serio in state court.

2. The State claims that the state court's order transferring the case to recorder's court was improper for a number of reasons. We address two of the State's arguments.

[ 571 S.E.2d 170]

(a) First, the State contends that Serio's motion to remand or transfer was untimely because it was not filed at or before arraignment. Uniform Superior Court Rule⁴ 31.1 provides that "[a]ll motions, demurrers, and special pleas shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial." Serio's state court arraignment was scheduled for November 29, but she did not file the motion to remand or transfer until December 10. She did not seek an extension of time from the state court for filing pre-trial motions, and no written extension appears in the record. "USCR 31.1 does not allow exceptions; its flexibility is provided by when and how an extension of time for filing may be granted. [Cit.]"⁵ When faced with an untimely pre-trial motion, the court may dismiss the motion or entertain a request by the defendant to enter a written order accepting the late filing.⁶ By doing neither, the court abused its discretion.⁷

Serio claims that the State waived its right to challenge the timeliness of her motion by not raising the issue in the state court. Although the State did not raise the issue before the court granted Serio's motion on January 7, 2002, the State did file a "Motion for Speedy Reconsideration" arguing, among other things, that Serio's motion was untimely. Moreover, in Davis v. State,⁸ our Supreme Court ruled that a late-filed special demurrer was properly denied under USCR 31.1, even though the trial court's ruling was not based on USCR 31.1 and the opinion does not indicate that the State ever raised the issue. For these reasons, we cannot agree that the State waived its challenge to the timeliness of Serio's motion.

Serio also argues that the only motions to which USCR 31.1 applies are motions to suppress. Again, we cannot agree. By its terms, the rule applies to "[a]ll motions." Moreover, we have affirmed denial of pre-trial motions, other than motions to suppress, that were not timely filed under USCR 31.1.⁹ Although Serio protests that a strict construction of USCR 31.1 might "preclude all litigants from filing motions seeking a particular action to be taken by the court as a particular need arises," she cannot claim that she was unaware before arraignment of the circumstances that prompted her motion to remand or transfer. The State served Serio with notice of the nolle prosequi and state court accusation on October 12, more than six weeks before her state court arraignment date. Thus, Serio had ample time to comply with USCR 31.1.

Next, Serio argues that it would be unfair to hold that her motion was untimely under USCR 31.1 because the State's motion for an order of nolle prosequi in the recorder's court was not filed until three days after her scheduled arraignment in that court. If her motion is untimely, Serio reasons, then so was the State's. However, the timeliness of an entry of nolle prosequi is governed by OCGA § 17-8-3, not by USCR 31.1. As the State complied with that statute,¹⁰ its motion for entry of nolle prosequi was timely.

Finally, Serio asserts that it is common practice in the State Court of Gwinnett County to allow defendants to file pre-trial motions up to ten days after arraignment, and that her motion was filed within that extended period. But Serio has submitted no evidence that such a practice exists¹¹ or that it was promulgated in accordance with USCR 1.2, which limits the enactment of local rules that conflict with the Uniform State Court Rules.

Thus, we find that Serio's motion to remand or transfer was untimely filed and that the state court erred in considering it.

(b) The State also argues that, even if Serio's motion was timely, the state court had no authority to grant it. The State contends that it had discretion to discontinue Serio's prosecution in recorder's court and accuse her in state court. Serio, on the other hand, argues that she has the right to select the forum in which she is prosecuted and that the State is guilty of unethical forum shopping.

The Recorder's Court of Gwinnett County was created by a 1972 act of the General Assembly.¹² That act gave the court jurisdiction to hear cases involving state misdemeanor traffic offenses and violations of Gwinnett County ordinances.¹³ Because the recorder's court does not impanel juries, its jurisdiction over state misdemeanor traffic offenses is limited to cases in which—as here—the defendant waives the right to a jury trial.¹⁴ If the defendant demands a jury trial, "[t]he case is then forwarded to the solicitor's office for docketing in [the] state court,"¹⁵ which also has jurisdiction to hear cases involving misdemeanor state traffic offenses.¹⁶

Under OCGA § 40-6-376(a), any violation of state traffic law which also is a violation of a local ordinance may, at the prosecutor's discretion, be charged as a violation of either the state statute or the local ordinance.¹⁷ Under OCGA § 40-6-376(b), if an offense is charged under a local ordinance, but also constitutes a violation of state law, the defendant may request a transfer of the charge from a lower court to "the appropriate state tribunal." If the defendant makes such a request, a city or recorder's court judge shall "bind [the defendant's] case over to the appropriate state tribunal," after fixing bond and determining whether there was probable cause for arrest.¹⁸

Serio's alleged offenses were cited as violations of state laws, not local ordinances. Thus, OCGA § 40-6-376(b), which applies only when an offense is charged as a local ordinance violation, does not apply here. Serio cannot rely on that Code section for her asserted right to choose the forum in which she is prosecuted.

Because Serio waived her right to a...