concurring in part and dissenting in part.
As to the main appeal, I concur fully in the reversal of the order sustaining the special demurrers to the indictment. With regard to the cross appeal, however, I dissent to the reversal of the denial of English’s application for mandatory bail.
OCGA § 17-7-50 provides, in relevant part, 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. . . . *350In 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. (Emphasis supplied.)
The majority holds that
[t]he language of the final sentence of the statute . . . does not make a distinction between those detainees who are “refused bail” and those who are “without bail”; instead it states an entitlement to bail for the accused person who has not been indicted within 90 days of incarceration.
Majority opinion, p. 348.1 disagree, because that interpretation mistakenly focuses on the last sentence in isolation, rather than in its proper context as an element of the statutory provision as a whole. When the code section is considered in its entirety, its primary purpose clearly is not to provide for mandatory bail for any defendant who was not indicted within 90 days of his arrest. Instead, it is intended to put the State on notice that, unless it indicts the arrestee by a date certain, it cannot thereafter contest his right to bail. The language of the statute “is unambiguous. If the [S]tate refuses bail to an incarcerated person, then the [S]tate must present its case to a grand jury for indictment within 90 days. If the [S]tate fails to do this, then bail is mandatory. [Cit.]” (Emphasis supplied.) Rawls v. Hunter, 267 Ga. 109 (1) (475 SE2d 609) (1996) (defendant twice sought bail, and it was refused both times). Thus, only an accused who actively sought and was “refused bail” within 90 days of his arrest is entitled to mandatory bail pursuant to the last sentence of OCGA § 17-7-50.
According to the majority, “the fact [that English] remained in jail is tantamount to his being ‘refused bail.’ ” Majority opinion, p. 348. However, an arrestee obviously cannot be “refused bail” unless and until he requests it. The burden is on the accused to seek bail and, if he remains mute and fails to do so, the State is not put on notice that it must indict him within 90 days of his arrest or concede his right to bail. Where, as here, the defendant is charged with an offense bailable only before a superior court, he “may petition the superior court requesting that [he] be released on bail. The court shall notify the district attorney and set a date for a hearing within ten days after receipt of such petition.” OCGA § 17-6-1 (d). However, the record reveals that English “neither formally requested nor made application for bail and there is nothing to show he was prevented from doing so if he desired.” Beavers v. State, 132 Ga. App. 94, 95 (3) (207 SE2d 550) (1974). Because he did not seek and was not “refused *351bail” in the 90 days following his arrest, he did not put the prosecution on notice of his insistence upon being indicted within that period. Consequently, he would not be entitled to mandatory bail under OCGA § 17-7-50 when the 90 days passed and no indictment was returned. Compare Rawls v. Hunter, supra at 109 (2).
The majority mistakenly relies on Burke v. State, 234 Ga. 512, 516 (5) (216 SE2d 812) (1975) for a contrary construction of the statute. All Burke holds is that, “[a]fter ninety days of confinement without bail and without indictment, the mandate of [OCGA § 17-7-50] is that bail must be set by the trial judge.” (Emphasis supplied.) Burke v. State, supra at 517 (5). The majority construes “without bail” as meaning “regardless of whether bail was earlier requested and refused.” Majority opinion, p. 349. However, nothing compels the conclusion that Burke employed the phrase in that sense. “Without bail” does not imply that a request for sáme either was or was not made.
In addition, Burke cannot be controlling authority for the proposition that mandatory bail is available to all unindicted pre-trial detainees after 90 days regardless of whether bail was previously sought and refused, because that issue was simply not raised and decided in that case. Instead, the State “argue [d] that the ninety day provision ... is not applicable to the crimes enumerated in [OCGA § 17-6-1], and that as to those enumerated crimes, the matter of granting bail is still in the discretion of the trial judge.” Burke v. State, supra at 517 (5). This Court rejected that contention, holding that OCGA § 17-7-50 “is applicable to all crimes after ninety days of confinement. After ninety days of confinement without bail and without indictment, the mandate of [OCGA § 17-7-50] is that bail must be set by the trial judge.” (Emphasis supplied.) Burke v. State, supra at 517 (5). Thus, Burke stands only for the proposition that, regardless of the nature of the alleged crime, bail is not discretionary after 90 days of detention without indictment. It does not hold that bail is mandatory after the 90-day period passes in cases where the accused did not seek and was not “refused bail” during that time. “£ “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” ’ [Cits.]” Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960).
Moreover, Rawls v. Hunter, supra at 109 (1), holds:
The record in this case is clear that [the defendant] was incarcerated for more than 90 days without having a grand jury hear the charges against him and that he twice sought and was refused bail. When [he] made his application for bail on the 91st day of his incarceration, the trial court had no choice but to set a reasonable bond. (Emphasis supplied.)*352Decided March 24, 2003. Kenneth W. Mauldin, District Attorney, Edward H. Brumby, Jr., Assistant District Attorney, for appellant. Russell C. Gabriel, for appellee.
Rawls certainly constitutes implicit authority for the proposition that a prior refused request for bail is required. While it could be argued that Burke represents implicit authority for the contrary proposition, Rawls, as the more recent decision, would necessarily control this case. Hall v. Hopper, 234 Ga. 625, 629 (3) (216 SE2d 839) (1975).
Under the majority’s expansive construction of OCGA § 17-7-50, a defendant could be arrested for the most heinous crimes and, by simply remaining silent and allowing 90 days to pass without the State seeking an indictment, insist on his right to mandatory bail. According to the express terms of OCGA § 17-7-50, however, mandatory bail should be limited to those defendants who, having sought and been “refused bail,” put the State on notice that it must obtain an indictment within 90 days of the arrest. Because English is not eligible for mandatory bail under OCGA § 17-7-50, the trial court correctly refused to grant his application seeking it.
I am authorized to state that Justice Thompson joins in this opinion.