Harper v. State , 203 Ga. App. 775 ( 1992 )

Johnson, Judge.

The appellant was charged in a single indictment with armed robbery and several other offenses. At the time of his arraignment he filed a demand for trial “within the next succeeding term . . . under OCGA § 17-7-170. . . .” The next succeeding term expired without his being tried, and during the following term he filed a motion for discharge and acquittal. The trial judge denied the motion based on a determination that OCGA § 17-7-171 was applicable to the case rather than OCGA § 17-7-170; and this appeal followed.

Under OCGA § 17-7-170 (b), a person charged by indictment or accusation with “an offense not affecting his life” who thereafter makes a valid demand for trial is entitled to discharge and acquittal if he is not tried within the next succeeding term of court after the demand is filed, “provided at both terms there were juries impaneled and qualified to try him.” However, if the defendant is indicted for a “capital offense,” then OCGA § 17-7-171 applies rather than OCGA § 17-7-170. Under § 17-7-171, the state is required to try the defendant within the next two terms after the demand is made, “provided that at both terms there were juries impaneled and qualified to try [him] and provided, further, that [he] was present in court announcing ready for trial and requesting a trial on the indictment.”

Although OCGA § 16-8-41 (b) specifies that armed robbery is punishable by death, the Georgia Supreme Court, applying the rationale of Coker v. Georgia, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977), has held that the death penalty may no longer be imposed for this offense. See Collins v. State, 239 Ga. 400, 402 (2), 403 (236 SE2d 759) (1977). The appellant contends that armed robbery consequently may no longer be considered a capital offense, with the result that OCGA § 17-7-170 must be applied to this case rather than OCGA § 17-7-171. However, the Supreme Court has further held that “[a] capital offense within the terms of [OCGA § 17-7-171] refers to offenses defined by statute as capital offenses, not necessarily offenses for which the state could or actually does seek the death penalty,” Cleary v. State, 258 Ga. 203, 204 (366 SE2d 677) (1988); and in reliance on that statement, this court has previously held that armed robbery continues to be a capital offense within the purview of OCGA § 17-7-171. See White v. State, 202 Ga. App. 370 (414 SE2d 296) (1991). Accord Simmons v. State, 149 Ga. App. 830 (256 SE2d 79) (1979) (decided under former Code Ann. §§ 27-1901.1 and 27-1901.2, the statutory predecessors to OCGA § 17-7-171). See also Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976), approving this court’s holding in Letbedder v. State, 129 Ga. App. 196 (199 SE2d 270) (1973), that armed robbery did not cease to be a capital offense within the contemplation of former Code Ann. §§ 27-1901.1 and 27-1901.2 during the period in which the death penalty could not be imposed in this state by virtue of the United States Supreme Court’s decision in Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972).

While it is well settled by the foregoing cases that armed robbery is still a “capital offense” within the purview of OCGA § 17-7-171, it has been held that armed robbery is no longer a capital offense for certain other purposes. For example, the Georgia Supreme Court held in Collins v. State, supra, that armed robbery could no longer be considered a capital felony within the meaning of Art. VI, Sec. II, Par. IV of the Georgia Constitution of 1976, giving it jurisdiction over “ ‘all cases of conviction of a capital felony.’ ” Id. 239 Ga. at 402-403. Similarly, this court has held that “ ‘if death is not a possible sentence, insofar as punishment is concerned, the offense cannot be capital, and a defendant charged with armed robbery may be indicted as a recidivist’ ” under OCGA § 17-10-7 (b). Scott v. State, 172 Ga. App. 725, 728 (5) (324 SE2d 565) (1984), quoting from Ivory v. State, 160 Ga. App. 193, 195 (286 SE2d 435) (1981). On the other hand, the Supreme Court has held that, notwithstanding Collins v. State, supra, armed robbery continues to be recognized as a capital offense “for the purpose of applying the aggravating circumstance provision of [OCGA § 17-10-30 (b) (2)].” Peek v. State, 239 Ga. 422, 432 (238 SE2d 12) (1977).

The appellant contends that to interpret armed robbery as a capital offense for some purposes but not others is so arbitrary, capricious and irrational as to violate due process and equal protection of the law. While we must concede that the decisions on this issue do not seem to be joined by any consistent thread of logic, the fact remains that armed robbery continues to be classified under statutory law as a capital offense, and it is clearly within the province of the legislature to determine that this offense is more serious than other crimes, such as feticide (OCGA § 16-5-80) and aggravated sodomy (OCGA § 16-6-2), for which life imprisonment may be imposed but for which the death sentence has never been statutorily authorized.

“State legislation is constitutional with respect to due process if it bears a rational relation to a proper and constitutionally permitted legislative purpose.” Department of Nat. Resources v. Union Timber Corp., 258 Ga. 873, 876 (4) (375 SE2d 856) (1989). Similarly, “[w]hen assessing equal protection challenges, . . . [i]f neither a suspect class nor a fundamental right is affected by the statute, the statute need only bear a rational relationship to some legitimate state purpose.” Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555) (1989). We conclude that the appellant’s constitutional rights to due process and equal protection of the law were not violated by the application of OCGA § 17-7-171 to the present case rather than OCGA § 17-7-170; and we consequently hold that the trial court did not err in denying his motion for discharge and acquittal.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope and Andrews, JJ., concur. Beasley and Cooper, JJ., dissent.