State v. Grandison , 192 Ga. App. 473 ( 1989 )

Beasley, Judge.

Defendant was indicted on June 9 for trafficking in cocaine (OCGA § 16-13-31) and entered a plea of not guilty at his arraignment on August 17. He appeared without counsel, who had earlier filed a “notice of conflict” setting out that the scheduled arraignment might conflict with other cases pending in other courts. No objection was made to defendant’s arraignment, and no request for its continuance was made, either in advance by counsel or, insofar as the record shows, by defendant at the time set for arraignment. Nor was any request made for an extension of time for the filing of motions, as provided for by USCR 31.1.

Defendant filed a motion to suppress evidence on August 22 and obtained a hearing date of September 22. On September 16 the State moved to dismiss the motion as untimely pursuant to USCR 31. The court heard both motions on September 22. It denied the State’s and granted defendant’s.

The State contends the court erred in considering defendant’s untimely motion. The rule requires motions to be filed at or before arraignment. It provides, however, that the time may be lengthened if a written extension is given by the court before trial. USCR 31.1; Mills v. State, 187 Ga. App. 79, 80 (2) (369 SE2d 283) (1988). The court has discretion in this matter, which will not be disturbed absent abuse. Hall v. State, 181 Ga. App. 92, 93 (1b) (351 SE2d 236) (1986).

Holding the arraignment as scheduled is not enumerated as error. Instead, defendant argues in effect that since counsel was not present, USCR 31.1 should not apply. Or at least, he contends, an exception should be made, extending the time for filing of motions for some undescribed period in circumstances such as his. He does not contend, nor does the record show, that he could not have filed, at arraignment or before, a motion to suppress prepared by counsel.

The rule allows of no exceptions as such but is hedged by authorizing the court to extend the time for filing, prior to trial and in writing. When defendant filed his late motion to suppress, however, he did not seek an extension so as to give cognizability to his motion. Instead, he simply had it set for hearing. The State moved to dismiss it as untimely. Still no written order allowing late filing was sought.

When the untimely motion came on to be heard, the State stood on its ground of procedural deficiency. The discretion exercised by the court was not in compliance with that authorized by USCR 31.1. See also Mills, supra. The court had the option of dismissing the motion to suppress or entertaining a request by defendant to enter a written order allowing its late filing. In the event the defendant sought the latter and the court chose to issue such, it then should have considered resetting the motion to suppress so as to give an opportunity to subpoena witnesses as to the merits.

Judgment reversed.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. McMurray, P. J., Sognier and Ben-ham, JJ., dissent.