Houston v. State

Pope, Presiding Judge. Defendant, the owner of a video rental store, was convicted of knowingly distributing and circulating unauthorized copies of videotapes. See OCGA § 16-8-60. Concluding that defendant’s motion for acquittal should have been granted based on the State’s failure to comply with his speedy trial demand under OCGA § 17-7-170, we reverse the conviction. Defendant was indicted in McIntosh County in October 1992, and he filed a demand for trial pursuant to OCGA § 17-7-170 in November 1992. Historically, McIntosh County had four terms of court, starting in February, May, September and December. Based on these four terms, defendant moved for acquittal on February 22,1993, arguing that his demand for trial was made in the September term, and jurors were impaneled and qualified to try him in both the September and December terms. The trial court denied defendant’s motion for acquittal, however, ruling that the legislature had changed the law in 1992 to provide that McIntosh County has only two terms of court, starting in May and December. While acknowledging that the legislature purportedly amended the terms of court in McIntosh County in 1992 (Ga. L. 1992, p. 1205), defendant points out that the legislature again passed legislation [784] amending the terms of court in McIntosh County in 1993 (Ga. L. 1993, p. 447). Because the amendment was not reflected in the Official Code of Georgia until after the 1993 legislative session, defendant argues that the amendment was not in effect during the period the State failed to bring him to trial — late 1992 and early 1993. We agree with defendant that the amendment changing the terms of court from four to two had not gone into effect at that time. Our agreement that the 1992 amendment was not effective is based not on the reason suggested by the defendant — that the amendment was not yet reflected in the Official Code of Georgia — but on an error in the actual language of the 1992 amendment. Specifically, the 1992 amendment purported to amend Ga. L. 1945, p. 1022. But Ga. L. 1945, p. 1022 had already been repealed and replaced by OCGA § 15-6-3. The legislature apparently realized its mistake and reenacted the amendment the following year, correctly stating this time that it was amending OCGA § 15-6-3. Although we previously affirmed the trial court’s denial of defendant’s motion for acquittal, see Houston v. State, 210 Ga. App. XXXI (1993), we did not have these facts before us and did not address this issue. Moreover, we have since decided McIver v. State, 212 Ga. App. 670 (442 SE2d 855) (1994), in which we held that the change from four to two terms in McIntosh County took effect July 1, 1993, and it would not seem fair to deprive defendant of the benefit of that holding. For these reasons, we reverse the judgment of conviction and direct the trial court to enter a judgment of acquittal under OCGA § 17-7-170. Judgment reversed. Ruffin, J., concurs. Beasley, C. J., concurs specially.