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Smith v. State3/19/2003
Following the denial of his motion for discharge and acquittal, Hubert Smith appeals, arguing that the trial court erred in its finding that his Sixth Amendment right to a speedy trial had not been violated. For the reasons stated below, we affirm.
This case is before us on a pre-trial appeal based on the holdings of the Georgia Supreme Court. We note our failure to follow U. S. Supreme Court precedent in U. S. v. MacDonald on the issue of pre- trial direct appeal on speedy trial denials based on alleged Sixth Amendment federal constitutional violations as opposed to such claims which are based on OCGA § 17-7-170, Georgia's statutory speedy trial demand statute. We do not believe that the 1978 United States Supreme Court holding in MacDonald, supra permits a pre-trial direct appeal on an alleged denial of a Sixth Amendment speedy trial demand. The holdings of the U. S. Supreme Court on federal constitutional questions are binding on all courts.
As Justice Gregory made clear in the 1985 case, Hubbard v. State, citing Smith v. State and Patterson v. State, because of the express language of the statute, a defendant stands acquitted as a matter of law, when the State fails to comply with a statutory speedy trial demand under OCGA § 17-7-170. This is so because double jeopardy rights are implicated in a statutory speedy trial denial. Therefore, unlike Sixth Amendment speedy trial denials, such a defendant is entitled to full double jeopardy protection (Fifth Amendment, U. S. Constitution) against the ordeal of the trial itself, because the statute provides that on violation of his rights under the statute, the defendant stands acquitted. Thus, a pre-trial direct appeal is appropriate in such a case. In an OCGA § 17-7-170 claim, the defendant is saying "`I may not now be tried because the time during which I must have been placed on trial has passed.'" Hubbard, supra at 695.
This is not the case in Sixth Amendment speedy trial claims as discussed in MacDonald, supra and Barker v. Wingo, for which there is no pre-trial right of direct appeal. We note that Hubbard does not address the 1978 ruling of the U. S. Supreme Court in MacDonald, that pre-trial rights to appeal do not apply in alleged Sixth Amendment speedy trial denials under the Federal Constitution. It was unnecessary to do so, because the distinction between a Georgia statutory speedy trial denial and a Federal Sixth Amendment speedy trial denial, under existing U. S. Supreme Court case law was clear at the time Hubbard was issued in 1985. Double Jeopardy protections were not implicated in Sixth Amendment speedy trial denial cases as was clear under Barker, supra, 1972 and MacDonald, supra, 1978. In MacDonald, supra, a unanimous U. S. Supreme Court, in reversing the Fourth Circuit Court of Appeals, held that
a defendant, before trial, could not appeal a Federal District Court's order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial, since (1) such pretrial order lacked the finality traditionally considered indispensable to appellate review and did not represent a complete, formal, and final rejection by the trial court of the defendant's claim, (2) the order was not collateral to, and separable from, the principal issue at the impending trial which was whether the accused was guilty of the offense charged, (3) a speedy trial claim was not sufficiently independent of the outcome of the trial to warrant pretrial appellate review, and (4) the order did not involve a right which would be lost if review had to await final judgment.
In the following post-Hubbard cases, Thomas v. State, Brannen v. State, Boseman v. State, and
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