Justia.com Opinion Summary: The court granted the interlocutory application of defendant to review the trial court's denial of a motion for bond defendant filed pursuant to OCGA 17-7-50. The appeal required the court to construe the statute to determine what constituted "confinement" that triggered the 90-day period within which the case of an unindicted and confined arrestee must be considered by the grand jury. The court held that, since it was undisputed that defendant was under arrest, was taken to the hospital pursuant to governmental authority, and was physically restrained during his two-day hospital stay as he was handcuffed to the hospital bed under the watchful eye of a deputy sheriff in an area of the hospital that contained jail cells, defendant was "in confinement" during his hospital stay and the 90-day period in which his case was required to be presented to the grand jury commenced on the day he was arrested. Accordingly, the trial court erred when it denied defendant's motion for bail on the charges for which defendant was arrested and held for 90 days without grand jury action. Therefore, the court reversed the judgment.
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In the Supreme Court of Georgia
Decided: October 3, 2011
S11A1540. TATIS v. THE STATE
BENHAM, Justice.
We granted the interlocutory application of Brian Tatis to review the trial
court’s denial of a motion for bond Tatis filed pursuant to OCGA § 17-7-50.1
The statute provides that
[a]ny person who is arrested for a crime and who is refused bail
shall, within 90 days after the date of confinement, be entitled to
have the charge against him or her heard by a grand jury having
jurisdiction over the accused person; ... In the event no grand jury
considers the charges against the accused person within the 90 day
period of confinement ..., the accused shall have bail set upon
application to the court.
This appeal requires the Court to construe the statute to determine what
constitutes “confinement” that triggers the 90-day period within which the case
of an unindicted and confined arrestee must be considered by the grand jury.
Warrants for appellant’s arrest for “Homicide-Murder 16-5-1” and
“Armed Robbery 16-8-41” were issued by a magistrate judge on November 16,
2010, and appellant was arrested on November 23, 2010. Because he injured
himself in an attempt to avoid arrest, appellant was handcuffed to a stretcher and
1
After issuing an order filed on March 29, 2011, that denied the motion for reasonable
bond, the trial court issued a certificate of immediate review and this Court granted appellant’s
application for interlocutory review of the trial court’s decision. The case was docketed to this
Court’s September 2011 Term and was argued before this Court on September 12, 2011.
transported immediately following his arrest to Grady Memorial Hospital,
where he received treatment for two broken ankles.
After two days of
hospitalization, appellant was taken from the hospital to the Fulton County jail
where he was booked into the jail on November 25. The Fulton County grand
jury returned a true bill of indictment against appellant on February 22, 2011,
92 days after he was arrested and taken to the hospital and 90 days after he was
booked into the county jail.2 On February 23, appellant filed a motion for a
reasonable bond to be set pursuant to § 17-7-50. The trial court heard argument
on the motion and denied it. On appeal, appellant argues that his confinement
began when he was at Grady Hospital where the sheriff’s office had a facility
for inmates and where, it is undisputed, arrestees in need of medical treatment
are handcuffed to hospital beds and guarded by sheriff’s deputies. Citing our
decisions in Richardson v. St. Lawrence, 289 Ga. 149 (709 SE2d 802) (2011),
and Bryant v. Vowell, 282 Ga. 437 (651 SE2d 77) (2007), overruled on other
grounds in Brown v. Crawford, ___Ga. ___ (2011 WL 4008328, decided
9/12/11), and State v. English, 276 Ga. 343 (3) (578 SE2d 413) (2003), the State
takes the position that appellant was not confined until he was incarcerated in
the Fulton County jail two days after he was arrested.
“In all interpretations of statutes, the courts shall look diligently for the
intention of the General Assembly” (OCGA § 1-3-1(a)), giving “ordinary
2
The true bill of indictment charged appellant with malice murder, felony murder with
aggravated assault as the predicate felony, felony murder with armed robbery as the predicate
felony, felony murder with conspiracy to violate the Georgia Controlled Substances Act as the
predicate felony, armed robbery, conspiracy to commit a crime, aggravated assault with a deadly
weapon, and possession of a firearm during the commission of a felony.
2
signification” to all words that are not terms of art. OCGA § 1-3-1(b). In
enacting the predecessor of § 17-5-70 in 1973, the legislature expressly stated
the purpose of the law: one who is arrested for a crime and not released on bail
is entitled to have the charge or accusation against him heard by a grand jury
and is entitled to have bail set if the grand jury does not consider the charges
against the accused “within the ninety-day period of confinement” and the
accused seeks bail. Ga. L. 1973, pp. 291-292. Thus, OCGA § 17-7-50 ensures
that a person whose arrest was not precipitated by grand jury indictment, i.e., a
person who was arrested on a prosecutor’s information or, as in appellant’s case,
on an arrest warrant obtained by a law enforcement officer, and who has been
confined since his arrest, has his case presented to the grand jury within 90 days
of arrest or has bail set by the trial court upon the arrestee’s motion after the
expiration of the 90-day period. Bryant v. Vowell, supra, 282 Ga. at 439.3
While the General Assembly did not define what it meant by its use of
“confinement” in the statute, where the statutory language is “plain and
susceptible to only one natural and reasonable construction, courts must
construe the statute accordingly [and] where the language of a statute is plain
and unambiguous, judicial construction is not only unnecessary but forbidden.”
Chase v. State, 285 Ga. 693 (2) (681 SE2d 116) (2009).
We believe
“confinement” as used in OCGA 17-7-50, is plain and unambiguous. In its
fourth edition published in 1968, Black’s Law Dictionary defined
3
If the State fails to present its case to a grand jury for indictment within the 90-day
period, setting bail is mandatory. Rawls v. Hunter, 267 Ga. 109 (1) (475 SE2d 609)(1996). That
the grand jury returned a true bill of indictment after the passage of the 90-day period does not
moot the remediative aspect of the statute. Bryant v. Vowell, supra, 282 Ga. at 439.
3
“confinement,” in pertinent part, as “a moral or a physical restraint ...of the
person.” The third edition of Webster’s Third New International Dictionary,
published in 1967, defined “confinement” as “restraint within limits.” As far as
OCGA § 17-7-50 is concerned, “confinement” is a situation in which the
defendant may not leave official custody of his own volition (State v. Nagle, 23
Ohio St.3d 185, 186 (492 NE2d 158) (1986)); a situation where one is under
arrest and in a facility pursuant to governmental authority where he is guarded
or restrained in some manner. See State v. Slager, 2009 WL 1027182 (Para. 20)
(Ohio App. 2011) (hospitalization for treatment of injuries sustained while
fleeing police did not constitute “confinement” because the hospital was not a
secure facility and the defendant, who was not placed under arrest until he was
discharged, was not guarded, confined, or restrained in the hospital). See also
People v. Hollister, 394 Ill. App.3d 380 (916 SE2d 592) (2009) (a defendant is
entitled to credit against a sentence when he is confined in an institution where
he experiences “the same surveillance, lack of privacy, and regimentation as he
would in a penal institution,” but the hospitalized defendant was not entitled to
credit when he was not restrained by law enforcement officers or under guard
or placed under any restrictions by the court or police); People v. Gravlin, 52
Mich. App. 467, 469 (217 NW2d 404) (1974) (credit against a sentence must be
given “for time spent in confinement pursuant to governmental authority,
regardless of the place of confinement.”).
Since it is undisputed that appellant was under arrest, was taken to the
hospital pursuant to governmental authority, and was physically restrained
during his two-day hospital stay as he was handcuffed to the hospital bed under
4
the watchful eye of a deputy sheriff in an area of the hospital that contained jail
cells, appellant was “in confinement” during his hospital stay, and the 90-day
period in which his case was required to be presented to the grand jury
commenced on November 23. Accordingly, the trial court erred when it denied
appellant’s motion for bail on the charges for which appellant was arrested and
held for 90 days without grand jury action.
The State does not dispute the fact that appellant was under arrest and
physically restrained while in the hospital. Relying on language in State v.
English, Bryant v. Vowell, and Richardson v. St. Lawrence, supra, it argues
instead that appellant’s period of confinement did not begin until he was
incarcerated, i.e., restrained in a jail, prison, or penitentiary. In those cases, we
stated that the defendants had been entitled to bond under § 17-7-50 for the
crimes for which each had spent 90 days incarcerated without having the
charges against him presented to the grand jury. We used “incarcerated” to
describe the status of the defendants involved, as each man had been confined
in a jail, prison, or penitentiary for more than 90 days before the grand jury
returned a true bill of indictment against him. Our use of the term to describe
their individual status was not a holding that one had to be confined to a jail,
prison, or penitentiary in order for OCGA § 17-7-50 to apply. Those cases and
this case make clear that while one who is incarcerated is in confinement under
§ 17-7-50, one need not be incarcerated to be confined under § 17-7-50.
Judgment reversed. All the Justices concur.
5
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