URIBE v. the STATE. , 346 Ga. App. 264 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 13, 2018
In the Court of Appeals of Georgia
A18A0582. URIBE v. THE STATE.
MERCIER, Judge.
Mateo Uribe appeals from the trial court’s order denying his motion for
discharge and acquittal on statutory speedy trial grounds under OCGA § 17-7-170,
contending that the order is erroneous and that the court erred in denying his motion
without first holding an evidentiary hearing, in violation of his constitutional right to due
process.1 For the reasons that follow, we affirm.
1
As the State points out, Uribe did not separately enumerate his claim that the
trial court’s order was erroneous. See Court of Appeals Rule 25 (a) (2); OCGA § 5-6-
40. However, this issue is part of Uribe’s argument as to the error that was
enumerated, and is sufficiently set out in Uribe’s brief and the notice of appeal so as
to require this Court to address it. See OCGA § 5-6-48 (f); Felix v. State, 271 Ga.
534, 539 (523 SE2d 1) (1999).
1. We disagree with Uribe’s contention that the trial court’s findings were
erroneous. “The denial of a statutory speedy trial demand presents a question of law
which this Court reviews de novo.” Rogers v. State, 340 Ga. App. 24 (795 SE2d 328)
(2016) (citation omitted). “When we consider the meaning of a statute, we must
presume that the General Assembly meant what it said and said what it meant. When
a statute contains clear and unambiguous language, such language will be given its plain
meaning and will be applied accordingly.” Williamson v. State, 295 Ga. 185, 186 (1)
(758 SE2d 790) (2014) (citations and punctuation omitted).
OCGA § 17-7-170 (a) sets forth the required form for a statutory speedy trial
demand in a non-capital case:
A demand for speedy trial filed pursuant to this Code section shall be
filed as a separate, distinct, and individual document and shall not be
a part of any other pleading or document. Such demand shall clearly
be titled “Demand for Speedy Trial”; reference this Code section within
the pleading; and identify the indictment number or accusation number
for which such demand is being made[.]
(Emphasis supplied). OCGA § 17-7-170 (b) provides that “[i]f the defendant is not
tried when the demand for speedy trial is made or at the next succeeding regular court
term thereafter, provided that at both court terms there were juries impaneled and
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qualified to try the defendant, the defendant shall be absolutely discharged and
acquitted of the offense charged in the indictment or accusation.”
Dismissing a criminal case pursuant to OCGA § 17-7-170 is an extreme
sanction, one which may be invoked only if the defendant has strictly
complied with the statute. . . .OCGA § 17-7-170 confers a statutory right
upon persons accused of a crime to demand trial, and because the
penalty imposed by this statute against the state is so great, it must be
strictly construed.
Eagles v. State, 269 Ga. App. 462, 464-465 (1) (604 SE2d 294) (2004) (citations and
punctuation omitted) (applying a former version of OCGA § 17-7-170 and finding that
a speedy trial demand was a nullity because it was filed prior to the defendant being
indicted or accused, in violation of the statutory requirements).
The relevant facts in this case are mostly undisputed. Following the binding over
of Uribe’s case from the Recorder’s Court of Gwinnett County to the State Court of
Gwinnett County, the State filed an accusation on February 1, 2017, charging Uribe
with driving under the influence of alcohol (less safe), driving under the influence of
alcohol (per se), speeding, and failure to maintain lane, which offenses allegedly
occurred on June 10, 2016. On February 15, 2017, Uribe’s counsel filed several
pleadings, including a document entitled “Defendant’s Waiver of Formal Arraignment,
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Entry of ‘Not Guilty’ Plea and Demand For Jury Trial” (the “demand”). The text of
that pleading is as follows:
NOW COMES Defendant and hereby waives formal arraignment, enters
a plea of “not guilty” to all pending charges, and demands a trial by jury
pursuant to Art. I, Sec. I, Par. XI (a) and Art. I, Sec. I, Par. I of the
Georgia Constitution, as well as the Sixth and Fourteenth Amendments
of the United States Constitution, and under OCGA § 17-7-170. Having
served the Prosecutor with a copy of this demand within the present term
or the next term of this court, the Defendant prays that he/she be
acquitted and discharged of any and all offenses charged/arising herein
in the event a trial is not had within that time period.
On July 28, 2017, Uribe filed his “Motion for Discharge and Acquittal Pursuant
to OCGA § 17-7-170” (the “motion”), arguing that because he had not been tried in
the same term in which he filed his demand or in the next succeeding term, he was
entitled to discharge and acquittal. Uribe contends on appeal that, along with the
motion, he filed a rule nisi and requested a hearing. However, the record contains no
evidence that Uribe requested a hearing on the motion, either at the pages that he cites
in his brief or anywhere else in the record. The State filed a brief in opposition to the
motion, and on August 28, 2017, the trial court entered an order denying the motion
for discharge and acquittal, finding that Uribe’s demand did not comply with the
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requirements of OCGA § 17-7-170 because (1) it was not entitled “Demand for
Speedy Trial” and (2) it was not filed as a separate, distinct and individual document.
The pleading requirements set forth in OCGA § 17-7-70 (a) are clear and
unambiguous, and we therefore give them their plain and ordinary meaning. See
Williamson, supra. Uribe did not comply strictly with the pleading requirements in that
statute. See Eagles, supra. His pleading was not entitled “Demand for Speedy Trial”
and was filed as part of another pleading (a waiver of formal arraignment, entry of not
guilty plea, and demand for jury trial). Therefore, Uribe did not properly file a statutory
speedy trial demand pursuant to OCGA § 17-7-170 (a) and he is not entitled to
discharge and acquittal pursuant to OCGA § 17-7-170 (b). See Jones v. State, 304 Ga.
App. 445, 448-449 (2) (b) (696 SE2d 346) (2010) (there was no merit to appeal from
denial of speedy trial motion where the purported statutory speedy trial demand was
not a separate, distinct and individual document as required by OCGA § 17-7-170; the
defendant failed to demonstrate that he served the State with a copy of the demand;
and he waived the right to speedy trial by announcing “not ready” for trial on two
separate dates); compare Rogers, supra at 25 (where the speedy trial demand was filed
separately, was clearly and distinctly titled, referenced OCGA § 17-7-170, and
identified the accusation number for the defendant’s case, it complied with the
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statutory pleading requirements for a speedy trial demand); Hudson v. State, 311 Ga.
App. 206 (715 SE2d 442) (2011) (reversing an order denying a motion for discharge
and acquittal and remanding case where one certificate of service was used for the
speedy trial demand as well as ten other documents, the demand was otherwise a
separate, distinct and individual document, the demand was titled “Demand for
Speedy Jury Trial,” and it otherwise complied with the pleading requirements of
OCGA § 17-7-170 (a)).
Uribe asserts that the text of his demand was sufficient to constitute a statutory
speedy trial demand, that the caption or title of the motion must be read in conjunction
with the text, that he was not required to use the exact title “Demand for Speedy Trial,”
and there is no prescribed form for a speedy trial demand. However, the 2006 revision
of OCGA § 17-7-170 added (among others) the pleading requirements at issue here.
See Ga. L. 2006, p. 893, § 1. Those requirements are included in the most recent
version of the statute, which is applicable in this case. OCGA § 17-7-170 (a) (2011).
The cases that Uribe cites in support of his arguments were decided under pre-
2006 versions of OCGA § 17-7-170, which versions did not contain all of the specific
6
pleading requirements contained in the current version of the statute.2 The trial court
did not err in holding that Uribe failed to comply with OCGA § 17-7-170 (a) and thus
was not entitled to discharge and acquittal under OCGA § 17-7-170 (b).
2. We disagree with Uribe’s contention that his due process rights were violated
because the trial court denied his motion for discharge and acquittal without first
conducting a hearing. He argues that a hearing would have provided him the
“opportunity to argue that [the demand] was still ‘legally sufficien[t]’ under current
Georgia case law [or] that he had a ‘good faith argument’ for the modification or
extension of the law so that [the demand] would or should be held as sufficient,” and
the opportunity to demonstrate that the other requirements of OCGA § 17-7-170 were
met and that he had not taken any affirmative action to waive his speedy trial demand.
However, as explained in Division 1 supra, Uribe’s arguments regarding the two
pleading requirements addressed in the trial court’s order are unavailing, and the
demand is insufficient on its face. Consequently, Uribe’s compliance with the
2
See, e.g., Aranza v. State, 213 Ga. App. 192 (444 SE2d 349) (1994); Baker
v. State, 212 Ga. App. 731 (442 SE2d 815) (1994); State v. Allen, 192 Ga. App. 730(386 SE2d 394) (1989); State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982).
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remaining pleading requirements, and the issue of whether he waived his speedy trial
demand, are irrelevant.
Uribe cites several cases for his argument that “rul[ing] on an issue in a case
without any notice to the parties or a meaningful opportunity to be heard presents
significant due process concerns.”3 He also cites several criminal cases in which, in
other contexts, the failure to hold a hearing was found to be erroneous. 4 However,
Uribe points to no statute or case that mandates an oral hearing in every case in which
a motion for discharge and acquittal pursuant to OCGA § 17-7-170 is filed.
3
See, e.g., City of Cedartown v. Pickett, 194 Ga. 508, 512 (3) (22 SE2d 318)
(1942) (a stay order in a civil case was invalid when it was issued ex parte, without
notice to the opposite party and without affording an opportunity for the opposite
party to be heard); Colden v. State, 244 Ga. App. 793, 794 (536 SE2d 820) (2000) (in
a civil forfeiture case, “the judgment taken without an order lifting [a] stay and without
notice and an opportunity for the parties to be heard on the issue of the stay was void
and without effect”); Hood v. Carsten, 267 Ga. 579, 580-582 (481 SE2d 525) (1997)
(where ex parte bond revocation order was issued, trial court erred in failing to hold
a hearing within a reasonable time after arrest or the filing of the State’s motion to
revoke bond, in violation of the defendant’s due process rights).
4
See, e.g., Vanselvor v. State, 162 Ga. App. 467, 469 (291 SE2d 772) (1982)
(trial court erred in refusing to hold a hearing on defendant’s request to withdraw her
guilty plea); Gantt v. Sweatman, 162 Ga. App. 738 (293 SE2d 359) (1982) (trial court
erred in denying a motion for new trial without holding a hearing because the relevant
statutes clearly indicate that a movant for new trial is entitled to a hearing and the
relevant provisions are “consonant with the constitutional requirements for procedural
due process”).
8
Uribe moved for discharge and acquittal on the record and had the opportunity
to make, in his pleadings, any argument to the trial court that he deemed necessary; the
State filed a brief in opposition; Uribe filed no response, and does not allege that he
was not permitted to respond to the State’s brief; and he fails to show by the appellate
record that he requested a hearing. In these circumstances, Uribe has not demonstrated
that he was denied notice and a meaningful opportunity to be heard.
Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur.
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