State v. White

• Decision Date: 08 January 2008
• Docket Number: No. S07A1308.,S07A1308.
• Parties: The STATE v. WHITE et al.
• Court: Georgia Supreme Court

655 S.E.2d 575

282 Ga. 859

The STATE v. WHITE et al.

No. S07A1308.

Supreme Court of Georgia.

January 8, 2008.

Stephany Julissa Luttrell, Asst. Dist. Atty., Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., for Appellant.

John Walter Kraus, Kenya Denise Berry, Stephen Randall Scarborough, Atlanta, for Appellee.

CARLEY, Justice.

In May of 1999, Cedric White was killed in an exchange of gunfire with Appellees Larry and Carlos White. Appellees were arrested shortly thereafter. However, they were detained for only a short period. Apparently, Appellee Larry White was released on bond after being charged with voluntary manslaughter, and all charges against Appellee Carlos White were dropped. The State did not present the case to the grand jury until December of 2004, when a murder indictment was returned against both Appellees. Appellee Carlos White was rearrested in March of 2006, and Appellee Larry White was apprehended some months later. In December of 2006, Appellee Larry White filed a plea in bar and a motion to dismiss, alleging a violation of his constitutional right to a speedy trial. Subsequently, Appellee Carlos White joined the motion and also moved for dismissal. After conducting a hearing, the trial court granted Appellees' motions to dismiss, finding that the delay in bringing them to trial was attributable to prosecutorial neglect and that their defense had been prejudiced. The State appeals.

1. The trial court granted Appellees' motions to dismiss on January 19, 2007. On February 12, the State filed a motion for reconsideration, to which several exhibits, including affidavits, were attached. On February 15, the State filed a notice of appeal from the grant of Appellees' motions to dismiss. On that same day, the trial court signed an order denying the State's motion for reconsideration, but that order was not entered until February 16.

After the case was docketed in this Court, the State filed a brief in which the argument that the trial court erred in granting the motions to dismiss was supported by reliance on the exhibits attached to the motion for reconsideration. Appellees moved to strike those exhibits from the record on appeal. Because Appellees' motion to strike invokes a ruling as to the scope of the record that this Court will be authorized to consider in addressing the merits of this appeal, we will first address that motion.

The State's motion for reconsideration did not extend the time for filing the notice of appeal from the grant of Appellees' motions to dismiss, and the denial of such a motion is not otherwise directly appealable. Ferguson v. Freeman, 282 Ga. 180, 181(1), 646 S.E.2d 65 (2007). If the denial of the State's motion for reconsideration is subject to appellate review, it must be pursuant to OCGA § 5-6-34(d). See Patterson v. Bristol Timber Co., 286 Ga.App. 423 n. 4, 649 S.E.2d 795 (2007). Here, the order denying the motion for reconsideration was signed by the trial court on the same day that the State filed the notice of appeal, but it was not filed with the clerk until the following day. Even though an order may be signed, it is not considered to have been entered and, thus, does not become effective until it is filed with the clerk. Titelman v. Stedman, 277 Ga. 460, 461, 591 S.E.2d 774 (2003). Therefore, at the time the order denying the motion for reconsideration would otherwise have become effective, the trial court had already been divested of jurisdiction over the case pursuant to the State's previously filed notice of appeal. See Heard v. State, 280 Ga. 348, 349(2), 627 S.E.2d 12 (2006). Because the notice of appeal divested the trial court of jurisdiction and thereby established the permissible parameters of the case on appeal, the order denying the motion for reconsideration is ineffective and does not constitute a "judgment[ ], ruling[ ], or order[ ] rendered in the case" within the meaning of OCGA § 5-6-34(d).

Accordingly, the only order that can be considered in this appeal is the grant of Appellees' motions to dismiss. In granting those motions, the trial court did not consider the attachments that were appended to the State's motion for reconsideration. Thus, this Court cannot consider that material, and Appellees' motion to strike is hereby granted. South v. Bank of America, 250 Ga.App. 747, 751(3), 551 S.E.2d 55 (2001).

2. In examining an alleged denial of the constitutional right to a speedy trial, courts must engage in a balancing test with the following factors being considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court's findings of fact and its weighing of disputed facts will be afforded deference on appeal. [Cits.]

Williams v. State, 277 Ga. 598, 599(1), 592 S.E.2d 848 (2004). With these four Barker v. Wingo factors in mind, "[t]he question is whether the trial court abused its discretion in ruling that [Appellees'] speedy trial rights were violated. [Cit.]" State v. Redding, 274 Ga. 831, 832, 561 S.E.2d 79 (2002).

a. Length of the delay. The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs. Wimberly v. State, 279 Ga. 65, 608 S.E.2d 625 (2005). Appellees were both arrested in June of 1999, less than a month after the shooting. However, the charges against Appellee Carlos White were dismissed shortly thereafter, so his right to a speedy trial did not reattach until formal charges were initiated in December of 2004. See Wooten v. State, 262 Ga. 876, 878(2), 426 S.E.2d 852 (1993). The motion to dismiss was filed in December of 2006. Therefore, the total length of the delay in Appellee Carlos White's case is slightly more than two years, which raises a threshold presumption that his defense was prejudiced. "[A]s the delay approaches one year it generally is `presumptively prejudicial'. . . ." Boseman v. State, 263 Ga. 730, 732(1)(a), 438 S.E.2d 626 (1994) (27 months). Because, after Appellee Larry White's initial arrest, a voluntary manslaughter charge remained pending, the length of the delay in prosecution of his case is approximately five and one-half years. This delay "is so extraordinarily long as to be considered presumptively prejudicial and to require the consideration of the remaining factors in the balancing test. [Cit.]" Williams v. State, supra at 599(1)(a), 592 S.E.2d 848.

b. Reasons for the delay. The trial court found that the police department "really didn't do anything after the initial arrest" and the case "sat for between 2-1/2 and three years" in the "overworked and underpaid" district attorney's office which was undergoing "an organizational reshuffling." Based on these findings, the trial court concluded that "the reason for the delay is not sufficient and it shows a degree of negligence upon prosecuting counsel for the delay."

The trial court did not, however, find that there was "[a] deliberate attempt to delay the trial in order to hamper the defense . . . . [Cit.] [Cit.]" Nelloms v. State, 274 Ga. 179, 180, 549 S.E.2d 381 (2001). "[I]f the delay attributable to the [S]tate's preparation of its case is not deliberate[,] but is negligent, it is weighted as a `relatively benign' factor against the [S]tate. [Cits.]" Jackson v. State, 272 Ga. 782, 784, 534 S.E.2d 796 (2000).

With regard to the approximately two-year post-indictment delay, the State contends that it was, at least in part, attributable to Appellees. However, the trial court did not make such a finding. Moreover, even assuming that Appellees' post-indictment actions or inactions may have partially contributed to the delay in bringing them to trial, that still would not fully counteract the State's negligence as "`a relatively benign but definitely negative factor.' [Cit.]" Nelloms v. State, supra.

c. Assertion of the Right to a Speedy Trial. With regard to this factor, the trial court found Appellees' assertion of their rights was "not unduly delayed, given all of the facts and circumstances of this case." That finding is authorized by the State's failure to seek an indictment for five and one-half years and, after the indictment had been returned, by the more than year-long delay in arresting Appellees and insuring that they had counsel to represent them in defending against the murder charge.

Since the filing of a speedy trial demand is not a prerequisite for a plea in bar for failure to have a speedy trial on constitutional grounds, [cit.], and since [Appellees'] counsel[s] filed a demand within months after being appointed, the trial court [did not err] in . . . mitigat[ing] this factor in the balancing process. It could not be weighed heavily against [Appellees].

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