dissenting.
I agree that the judgment should be reversed, but the convictions of the probate court cannot be reinstated.
First it must be recognized that there were two cases. One is the case on traffic citations which proceeded in the probate court and was appealed for a de novo trial on those traffic citations in the superior court. Defendant’s bringing it to the superior court, left that case in the same posture it was in at the probate level: the state was the moving party, accusing defendant of traffic violations, and the defendant was the responding party, not an “appellant” in the sense of seeking a review of what transpired in the lower court. A new trial was, according to law, to be afforded to defendant in the superior court, with a jury if he wanted one. OCGA §§ 5-3-29; 5-3-30. As stated in Williams v. Calloway, 171 Ga. App. 286, 288 (2) (319 SE2d 500) (1984), “[a]n appeal to the superior court from the probate court is a de novo investigation. OCGA § 5-3-29 ... ‘a new trial in which only the matter presented to the court below can be relitigated.’ Mathews v. Mathews, 136 Ga. App. 833, 837 (222 SE2d 609) (1975).”
The de novo appeal, CR-85-0013, had been on the November trial calendar but was not tried. Instead, apparently, the state simply sought to substitute an indictment, CR-85-0103, for the traffic citations upon which defendant had already been tried in probate court, and to substitute a trial on the indictment for the de novo trial sought by defendant in superior court on the traffic citations. That precisely is at the heart of what defendant is complaining about, in this appeal. Thus, when the opinion refers to “his case” and “the case,” it should be recognized that there are two cases. As to the indicted case, CR-85-0103, which the record clearly shows is what was tried in February, I agree that double jeopardy bars the indictment and trial on it.
In the course of that trial, defendant moved to dismiss the traffic citation charges then pending in CR-85-0013 because he had not been timely tried on them in superior court under OCGA § 5-3-30. Defendant was entitled to a de novo trial on those charges and promptly filed for it. OCGA § 5-3-29. As he points out, the trial should have transpired “at the first term after the appeal [was] entered unless good cause is shown for continuance.” OCGA § 5-3-30.
It is the clerk’s duty to place civil cases on the calendar, Etheridge v. Etheridge, 242 Ga. 101 (249 SE2d 569) (1978). Even if it is the clerk’s duty also in criminal cases such as Bailey’s, the clerk did so. But as the majority concludes, no good cause was shown for the case not being tried during that term. It was the state’s obligation to pro*894ceed to prosecute, in the public interest and in order to comply with OCGA § 5-3-30.1 Certainly defendant had no control over the state’s failure to do so. Consequently, the charges based on the traffic citations were required by law to be dismissed as defendant urged. His right to a superior court trial was a right to a timely trial, and it was the charges and not a trial on them which he sought by motion to dismiss.
Decided November 18, 1987. Roger A. Hunsicker, James W. Bradley, for appellant. E. Byron Smith, District Attorney, for appellee.To reinstate the probate court convictions and sentences would not only sweep aside the time requirement of OCGA § 5-3-30, it would also deprive defendant of the process provided by the statutory scheme which protects the right to trial by jury while allowing most traffic cases to be disposed of in the jury-less probate or magistrate court.
I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.In this case, defendant himself apparently had a particular interest in a speedy trial, as counsel advises dehors the record that he was incarcerated since arrest and began serving the probate court sentence as soon as it was imposed.