Allen v. State6/28/2004
Frederick Jackson Allen appeals the trial court's denial of his motion for discharge and acquittal based on a violation of his right to a speedy trial. For the reasons that follow, we affirm.
Allen was arrested on July 1, 2000, for driving under the influence after he ran into the back of a car stopped in front of him and then hit a car head-on in the oncoming lane. He was given an alco-sensor test, the results of which were not recorded, and the arresting officer took him to the police station for a breath test. The breath test could not be completed due to an unknown interferent, so the officer took Allen to the hospital to have blood drawn for a blood test. The officer delivered the blood sample to the evidence room, where it was subsequently destroyed before it was tested. On March 20, 2002, the State filed its accusation against Allen, charging him with driving under the influence with a blood alcohol level over the legal limit and as a less safe driver, two counts of child endangerment by driving under the influence, and one count of following too closely.
On June 18, 2002, Allen waived arraignment, pled not guilty, and filed standard motions for discovery, for a copy of any scientific reports, and for any exculpatory material. The State responded on July 19, 2002, with several documents, but noted that no scientific reports were known to exist. On August 12, 2002, Allen filed a plea in bar, **486 arguing that no accusation had been filed within two years of his arrest and that the two-year statute of limitation on misdemeanors had run. According to the State, the trial court then placed the case on hold pending the outcome on appeal of cases with similar claims, which this court decided in State v. Thompson, 261 Ga.App. 828, 584 S.E.2d 7 (2003), issued on May 21, 2003.
The issue addressed in Thompson, whether an accusation was filed within two years of the misdemeanor offense, arose because the previous policy of the clerk of court's office was not to file-stamp accusations when they were filed by the solicitor-general. Instead, accusations were date-stamped by the solicitor, and if the date on the accusation was not that day's date, the clerk noting this discrepancy would line through the date and write the correct date on the accusation. We held that the accusations were filed when the clerk's office accepted them for filing, and whether the accusations were stamped by the solicitor-general's office or the clerk's office was not relevant. Id. at 830, 584 S.E.2d 7.
On June 27, 2003, the State filed a notice of its intent to present evidence of two similar transactions in this case. On July 10, 2003, the day of trial, Allen filed his motion for discharge and acquittal. During *162 a hearing on the motion, the State argued that it would not prosecute the charge of driving under the influence with a blood alcohol level over 0.10 and only try Allen for driving under the influence while less safe. The trial court denied the motion, and Allen brought this direct appeal.
Allen asserts that the trial court erred in denying his motion for discharge and acquittal due to a violation of his right to a speedy trial, arguing that he was unfairly prejudiced by the 36-month delay between his arrest and trial because the State had lost his blood sample. "A speedy trial is guaranteed an accused by the Sixth Amendment ... to the Constitution of the United States, and also [Art. I, Sec. I, Par. XI (a) of the 1983 Ga. Constitution]." Powell v. State, 143 Ga.App. 684, 685(1), 239 S.E.2d 560 (1977). These rights attach either upon arrest or when formal charges are brought, whichever is earlier. Haisman v. State, 242 Ga. 896, 897, 252 S.E.2d 397 (1979). In determining whether a delay violates a defendant's constitutional right to a sp
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