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Fisher v. State4/30/2001
On October 1, 1998, appellant Robert Fisher was charged with DUI and operating a motor vehicle without a license plate. On November 10, 1998, appellant demanded a speedy trial pursuant to OCGA § 17-7-170, which provides that a defendant is entitled to be tried in the term the demand is made or at the next succeeding regular court term. The State Court of Fulton County has six terms of court per year, beginning on the first Monday in January, March, May, July, September, and November. OCGA § 15-6-3. Under OCGA § 17-7-170, appellant was entitled to be tried during the November or January term, or be discharged or acquitted of the charges against him.
Appellant's trial was scheduled to begin on February 25, 1999, the next to the last day of the January term. However, nine days before the scheduled date, appellant's counsel sent a notice of conflicts letter pursuant to USCR 17.1 (B). In the letter, appellant's counsel explained that he was scheduled to try a criminal jury case on February 22 in Dekalb Superior Court, another criminal jury case on February 24 in Atlanta City Court, and appellant's case and another criminal case in Fulton State Court on February 25. Appellant's counsel stated in the letter that he would "proceed with each case in the order listed unless directed by the Courts."
On February 25, appellant's case was called for trial and appellant's counsel did not appear in the courtroom. The trial court continued the case until March 30. On April 2, appellant filed a motion for discharge and acquittal due to the state's failure to try him within the November or January terms as required by OCGA §17-7-170. At the hearing on the motion, appellant's counsel testified that the criminal jury case he was scheduled to try on February 24 did not conclude until the early afternoon of February 25, after the trial court rescheduled appellant's case, and that he agreed to try another matter not listed in the notice of conflicts after the first trial concluded. The trial court subsequently denied the motion. On appeal, the Court of Appeals affirmed the trial court's ruling, concluding that appellant waived his right to a speedy trial by filing a notice of conflict. We granted certiorari to consider whether the Court of Appeals was correct in holding that defense counsel's filing of a notice of conflicts letter, filed pursuant to USCR 17.1 (B), constituted a waiver of the defendant's demand for speedy trial.
The burden is clearly on the state to establish the defendant waived his right to a speedy trial. State v. McNeil, 176 Ga. App. 323, 325 (335 SE2d 728) (1985); Parker v. State, 135 Ga. App. 620 (4) (218 SE2d 324) (1975). Waiver may result from any act that shows a defendant affirmatively consented to passing the case until a later term. Sykes v. State, 236 Ga. App. 518 (2) (511 SE2d 566) (1999); State v. Waters, 170 Ga. App. 505 (3) (317 SE2d 614) (1984). When a defendant performs any affirmative act, he is expected to have accepted all of the consequences that arise from the action. State v. Dymond, Case No. A00A2325, decided February 28, 2001 (Waiver of speedy trial demand results where defendant files motion to suppress which is granted and from which the State appeals); State v. Davis, 243 Ga. App. 867 (534 SE2d 159) (2000) (Defendant's request to reschedule trial for a date outside of the period required to meet the speedy trial demand resulted in waiver of the demand).
The State argues that filing the conflicts letter was a voluntary act that shows appellant consented to the waiver of his speedy trial demand. We do not agree with that assertion. The filing of a notice of conflicts is mandatory under USCR 17.1. Trial counsel has no discretion in determining the o
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