concurring and concurring specially.
I fully concur in this Sixth Amendment of the Federal Constitution speedy trial denial case. I write separately to address our failure to follow U. S. Supreme Court precedent in United States v. MacDonald3 on the issue of pre-trial direct appeal on speedy trial denials based on alleged Sixth Amendment federal constitutional violations as opposed to such claims which are based on OCGA § 17-7-170, Georgia’s statutory speedy trial demand statute. I do not believe that *294the 1978 U. S. Supreme Court holding in MacDonald, supra, permits a right to a pre-trial direct appeal on an alleged denial of a Sixth Amendment speedy trial demand. The holdings of the U. S. Supreme Court on federal constitutional questions are binding on all courts.
As Justice Gregory made clear in the 1985 case, Hubbard v. State 4 citing Smith v. State5 and Patterson v. State,6 because of the express language of the statute, a defendant stands acquitted as a matter of law when the State fails to comply with a statutory speedy trial demand under OCGA § 17-7-170. This is so because double jeopardy rights are implicated in a statutory speedy trial denial. Therefore, unlike Sixth Amendment speedy trial denials, such a defendant is entitled to full double jeopardy protection (Fifth Amendment, U. S. Constitution) against the ordeal of the trial itself, because the statute provides that on violation of his rights under the statute, the defendant stands acquitted. Thus, a pre-trial direct appeal is appropriate in such a case. In an OCGA § 17-7-170 claim, the defendant is saying, “ T may not now be tried because the time during which I must have been placed on trial has passed.’ ” Hubbard, supra at 695.
This is not the case in Sixth Amendment speedy trial claims as discussed in MacDonald, supra, and Barker v. Wingo,7 for which there is no pre-trial right of direct appeal. We note that Hubbard does not address the 1978 ruling of the U. S. Supreme Court in MacDonald, that pre-trial rights to appeal do not apply in alleged Sixth Amendment speedy trial denials under the Federal Constitution. It was unnecessary to do so because the distinction between a Georgia statutory speedy trial denial and a Federal Sixth Amendment speedy trial denial, under existing U. S. Supreme Court case law was clear at the time Hubbard was issued in 1985. Double jeopardy protections were not implicated in Sixth Amendment speedy trial denial cases as was clear under Barker, supra, 1972, and MacDonald, supra, 1978. In MacDonald, supra, a unanimous U. S. Supreme Court, in reversing the Fourth Circuit Court of Appeals, held that a defendant, before trial, could not appeal a federal district court’s order denying his motion to dismiss an indictment because of an alleged violation of his Sixth Amendment right to a speedy trial, since (1) such pre-trial order lacked the finality traditionally considered indispensable to appellate review and did not represent a complete, formal, and final rejection by the trial court of the defendant’s claim, (2) the order was not collateral to, and separable from, the principal issue at the impending trial which was whether the accused was guilty of the *295offense charged, (3) a speedy trial claim was not sufficiently independent of the outcome of the trial to warrant pre-trial appellate review, and (4) the order did not involve a right which would be lost if review had to await final judgment.
In the following post-Hubbard cases, Thomas v. State,8 Brannen v. State,9 Boseman v. State,10 and Boulton v. State,11 no statutory speedy trial violations under OCGA § 17-7-170 claims were involved. Unlike Hubbard each of these cases involved federal constitutional Sixth Amendment speedy trial violations. By a footnote citation to Hubbard, supra, a 1985 statutory speedy trial case, which therefore included no Sixth Amendment speedy trial case, and without a MacDonald Sixth Amendment speedy trial analysis, each of these cases applied the statutory speedy trial pre-trial direct appeal right to Sixth Amendment speedy trial violations. None of these cases was based on OCGA § 17-7-170 claims as was Hubbard, and no MacDonald Sixth Amendment analysis was made in any of these cases.
In Callaway v. State,12 an alleged Sixth Amendment speedy trial denial case, this Court held that the defendant was not entitled to a pre-trial direct appeal, except as authorized under the provisions of OCGA § 5-6-34 (b), which requires a certificate of immediate review by the trial judge.
The Supreme Court of Georgia subsequently reversed our decision in Callaway. In doing so, the Supreme Court of Georgia held:
[W]e cannot see any persuasive rationale for departing from settled precedent as to the applicable methods of pre-trial appeal and creating a distinction between constitutional and statutory speedy trial rulings. The statutory provision is obviously analogous in its purpose to the constitutional right to a speedy trial. Ould v. State.13 As the concept of double jeopardy is closely implicated in both provisions, a defendant may directly appeal from the pre-trial denial of either a constitutional or statutory speedy trial claim. Hubbard v. State, supra at 695; Ould v. State, supra at 55 (1).
Callaway v. State. 14
*296Decided March 14, 2003. Dwight L. Thomas, Jo Ann Fields, for appellant. Paul L. Howard, Jr., District Attorney, Anne E. Green, Assistant District Attorney, for appellee.In 1978, the U. S. Supreme Court provided a four-part analysis of Sixth Amendment speedy trial denial appeal rights under the Federal Constitution which clearly indicated that no double jeopardy rights were implicated therein and held that no pre-trial appeal rights exist in such a case. In Callaway, our Supreme Court has held otherwise. While this Court is bound by the decisions of both the U. S. Supreme Court and those of the Supreme Court of Georgia, under the Georgia Constitution, we must defer to the holdings of the Supreme. Court of Georgia, where they have established law, whether or not they have considered holdings of the U. S. Supreme Court. But for this requirement, I would follow the holding of MacDonald in this case.
United, States v. MacDonald, 435 U. S. 850 (98 SC 1547, 56 LE2d 18) (1978).
Hubbard, v. State, 254 Ga. 694 (333 SE2d 827) (1985).
Smith v. State, 169 Ga. App. 251 (312 SE2d 375) (1983).
Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).
Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).
Thomas v. State, 274 Ga. 492, n. 1 (555 SE2d 693) (2001).
Brannen v. State, 274 Ga. 454, 455, n. 1 (553 SE2d 813) (2001).
Boseman v. State, 263 Ga. 730.(438 SE2d 626) (1994).
Boulton v. State, Case No. S00C1510, 2000 Ga. LEXIS 800 (October 20, 2000).
Callaway v. State, 251 Ga. App. 11 (553 SE2d 314) (2001).
Ould v. State, 186 Ga. App. 55 (1) (366 SE2d 392) (1988), a case which totally ignores the U. S. Supreme Court’s 1978 ruling in MacDonald, which holds that a Sixth Amendment speedy trial violation does not authorize a pre-trial direct appeal.
Callaway v. State, 275 Ga. 332-333 (567 SE2d 13) (2002).