dissenting.
I dissent. At issue in this case is whether defendant was entitled to file his demand for speedy trial on the basis of the Georgia Uniform Traffic Citation, Summons, Accusation/Warning which was never filed with the clerk of the court where the demand was made. OCGA § 17-7-170, as amended, provides in pertinent part that “[a]ny person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial. ...” (Emphasis supplied.) Although it is well settled in this State that in cases involving traffic related offenses the citation itself contains the necessary accusation, OCGA § 17-7-170, as amended, clearly provides that such accusation or indictment must be “filed” with the clerk. In my opinion, when a uniform traffic citation is transferred from a traffic court to a state court, the accusation is not filed as mandated by OCGA § 17-7-170 until the solicitor has presented the traffic citation or accusation to the clerk and the case is then docketed as a misdemeanor criminal case in the state court. See Keller v. State, 183 Ga. App. 717, 719 (359 SE2d 714) (1987). Here the traffic citation, which was filed with the Clerk of the Recorder’s Court, was never filed with the Clerk of the State Court’s office, and hence the case was not docketed or filed in that court until the accusation was returned on August 22, 1988. Consequently, I agree with the trial court that defendant’s demand for trial pursuant to OCGA § 17-7-170 was premature, and that defendant’s motion for discharge *55and acquittal should be denied.
Decided December 5, 1989 Rehearing denied December 20, 1989 Winship E. Rees, for appellant. Gerald N. Blaney, Solicitor, David Fuller, Assistant Solicitor, for appellee.The majority holds that it was the State’s duty to file the accusation and hence the denial of defendant’s motion for discharge and acquittal would punish defendant for a clerical error by a court official. Although Rule 36.13, cited by the majority, does provide that “[a] 11. . . accusations presented to the clerk shall be filed . . .” (emphasis supplied) the question then becomes whether the mere receipt of the documents from the Recorder’s Court constitutes a “presentment” of the accusation to the clerk for filing. In this regard, Uniform State Court Rule 26.2 (8) provides that “[o]n each case which is bound over, . . . [t]he warrant, bail bond, and all other papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the prosecuting attorney.” (Emphasis supplied.) Hence, it appears that the clerk here did in fact follow the proper procedure in “holding” the case for delivery to the prosecuting attorney, who was then charged with “presenting” the accusation, whether embodied in the traffic citation or drawn separately, to the clerk for filing. Thus, unlike the cases relied on by the majority this is not a situation in which a clerical error resulted in the denial of defendant’s right to pursue his demand for speedy trial. Consequently, I would affirm the judgment of the trial court.
I am authorized to state that Presiding Judge Deen and Presiding Judge McMurray join in this dissent.