State v. Gerbert

Beasley, Chief Judge,

concurring in part and dissenting in part.

I respectfully dissent with respect to the affirmance of Gerbert’s conviction and specially concur with respect to affirmance of the discharges and acquittals granted to Damron and Kiser. I concur fully in Divisions 2 through 6 of the majority opinion but not in Division 1.

Judicially compelled cessation of prosecution of a criminal offense is an “extreme sanction” for the State’s tardiness in proceeding. Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984). It is what the law requires when the defendant has properly filed a demand for speedy trial. OCGA § 17-7-170 (b). It is not discretionary; the statute commands “shall.” Due to its severity, the one who calls for it must file with the court a clear “demand to be tried within the next succeeding term of court,” Ferris, supra at 730, and must alert the prosecutor by service of a copy of the demand, as the statute requires.

The sanction is a fatal one because it guards a valuable right, the right to have charges brought against one disposed of not only while witnesses are available and their memories are fresh but also so that the deleterious effects of a pending charge on a defendant are lessened. As stated in Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985), “In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely.”

The process of criminal proceedings is not meant to be the punishment. The right is regarded as so fundamental that it is protected not only by statute, OCGA § 17-7-170 (a), but also by both the State constitution, Ga. Const., Art. I, Sec. I, Par. XI (a), and the federal constitution, Amendment Six. As stated in these three documents respectively, the right belongs to “[a]ny person against whom a true bill of indictment or an accusation is filed,” “the defendant,” “the accused.”

When may a person who is charged with a misdemeanor by a uniform traffic citation and complaint exercise that right? A person can be tried on a UTC for certain misdemeanors, including the ones charged originally against the defendants in the instant cases. OCGA § 17-7-71 (b). The citation and complaint has significant attributes similar to those of an accusation or indictment. It serves “as the citation, summons, accusation, or other instrument of prosecution of the offense or offenses for which the accused is charged, and as the record of the disposition of the matter by the court before which the accused is brought. . . .” OCGA § 40-13-1. It “contains an accusation.” Duncan v. State, 193 Ga. App. 793, 794 (389 SE2d 365) (1989). It serves as authority for the requirement of bond in lieu of loss of liberty. OCGA § 40-13-55. It authorizes a command to appear in court on a date certain, to answer the charge. OCGA § 40-13-58. It “alone suffice[s] to prosecute the traffic violation.” Weaver v. State, 179 Ga. App. 641 (1) (347 SE2d 295) (1986); OCGA § 40-13-3.

Decided December 20, 1995 Michael M. Hawkins, Solicitor, for appellant. Albert A. Myers III, for appellee (case no. A95A1021).

Of particular significance is that the issuance and filing of a UTC “commences” the prosecution of the charge contained therein, for statute of limitation purposes. Poppell v. State, 209 Ga. App. 91, 92 (432 SE2d 573) (1993); Duncan, supra; Weaver, supra. OCGA § 17-3-1 (d) provides that “Prosecution for misdemeanors must be commenced within two years after the commission of the crime.” The decision to prefer an accusation and add a charge is not subject to a statute of limitation defense on the original charges if the period expires between the date the UTC is filed and the date the accusation is filed. Duncan, supra. The defendant’s right to rely on the earlier date for trial demand purposes must be commensurate with the State’s right to rely on that date for statute of limitation purposes. Since defendants are just as much at risk on a UTC as they are on an accusation or indictment for the offense charged, the right to demand a speedy trial must attach at the time the UTC is filed with the court. State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989).

Whether to proceed on the UTC, or on a prosecutor’s accusation, or on a grand jury indictment, is the choice of the prosecutor. The State’s advocate should not have control of when the defendant’s right to a speedy trial on the charge contained in the UTC arises. That is the result of the majority’s holding, which is contrary to the statutory commands. The service of a copy of the demand on the prosecutor is “sufficient to put the authorities on notice of [the] defendant’s intention to invoke the extreme sanction” of OCGA § 17-7-170. Ferris, supra at 731 (1). Whether the prosecutor decides to add more charges based on the evidence is solely within his or her discretion, but this cannot frustrate the invocation of the defendant’s right.

For these reasons, the trial court should be affirmed in all three cases.

Terry N. Massey, for appellees (case nos. A95A1341, A95A1342).