Moceri v. State , 319 Ga. App. 375 ( 2012 )

Adams, Judge.

Dominic Moceri III filed a direct appeal from the trial court’s denial of his Motion for Discharge and Acquittal on speedy trial grounds. In an order dated November 18, 2011, this Court found that Moceri, indeed, had a right to a direct appeal and granted his emergency motion to stay the proceedings in the trial court pending the appeal.¹ But in an opinion dated November 19,2012, the Supreme Court of Georgia held that no right of direct appeal lies from the denial of a constitutional speedy trial motion. Sosniak v. State, 292 Ga. 35 (734 SE2d 362) (2012).²Accordingly, we must dismiss Moceri’s appeal for lack of jurisdiction.

As the Supreme Court of Georgia recognized, however, “given the clear, though incorrect, mandate” of prior Supreme Court precedent,³ an appellant with a pending speedy trial appeal “may be caught somewhat by surprise” by the Sosniak opinion. Id. at 40 (3). In an effort to ameliorate such surprise in this case, we note that the trial court’s order denying Moceri’s speedy trial motion was insufficient to allow us to determine whether the trial court abused its discretion because the trial court made no findings pursuant to Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Thus, the order was subject to vacatur and remand “for entry of an order including proper findings in accordance with Barker v. Wingo . . . .” Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

In considering a motion asserting the denial of the constitutional right to a speedy trial, courts must apply a balancing test, considering the following factors:

(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. [at 530 (IV)]. 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.

(Citation omitted.) Brown v. State, 287 Ga. 892, 894 (1) (700 SE2d 407) (2010). An appellate court reviews the denial of a speedy trial motion for an abuse of discretion. Higgenbottom v. State, 288 Ga. at 430. “It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this Court to review.” (Citations omitted.) Id. at 430-431.

Here, the trial court’s order denies Moceri’s speedy trial motion based upon the record and the argument of counsel, which included a defense argument on the Barker v. Wingo factors, before making a separate finding that the motion was frivolous and dilatory. We must presume, therefore, that the trial court considered the merits of Moceri’s argument in denying the motion. But because the trial court made no findings on the Barker v. Wingo factors, we would have been unable to consider whether the trial court properly exercised its discretion.

Further, we note that the additional evidentiary issues Moceri raised in this appeal are not directly appealable standing alone. This Court denied Moceri’s prior application for interlocutory appeal on these issues, and the Supreme Court of Georgia denied his petition for certiorari. In any event, because the resolution of a speedy trial motion is potentially dispositive,⁴ it would have been premature to address Moceri’s appellate arguments on the evidentiary issues until after remand.

Finally, we emphasize Sosniak’s holding that in the future, any appeal from the denial of a constitutional speedy trial motion must be made pursuant to the procedures for interlocutory appeal set forth in OCGA § 5-6-34 (b).

Appeal dismissed.

Barnes, P. J., concurs. McFadden, J., concurs specially.

1 The State subsequently filed a motion asking this Court to dismiss the stay, “arguing that because the trial court’s summary judgment order found appellant’s appeal to be frivolous, the court was not required to allow a direct appeal,” but the motion was denied.

2 Prior to Sosniak, this Court’s prior rulings on emergency motion would have been binding as to future proceedings in this case and could not have been reconsidered on appeal. See Melton v. State, 252 Ga. App. 29, 30 (2) (555 SE2d 488) (2001); Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991).

3 See Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002), and Boseman v. State, 263 Ga. 730, n. 1 (438 SE2d 626) (1994), both expressly overruled by Sosniak.

4 Strunk v. United States, 412 U. S. 434, 439-440 (II) (93 SC 2260, 37 LE2d 56) (1973) (“In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker [u. Wingd\ noted, ‘the only possible remedy.’ ”). See also Ruffin v. State, 284 Ga. 52, 66 (3), n. 63 (663 SE2d 189) (2008).