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Fisher v. State4/30/2001
rder in which the cases are to be tried. The order of the cases to be tried can be changed only by agreement by the judges on the affected courts. Thus, since the filing of a notice of conflicts is mandatory under the rules, it cannot be evidence that defendant consented to have his case tried at a later term.
However, we do conclude that defense counsel's failure to comply with USCR 17.1 (C) constituted an affirmative act which waived appellant's speedy trial demand. USCR 17.1 (C) states:
In the event any matter listed in the letter notice is disposed of prior to the scheduled time set for any other matter listed or subsequent to the scheduled time set but prior to the end of the calendar, the attorney shall immediately notify all affected parties, including the court affected, of the disposal and shall, absent good cause shown to the court, proceed with the remaining case or cases in which the conflict was resolved by the disposal in the order of priorities as set forth heretofore.
The record does not reflect that defense counsel notified any of the affected parties or trial courts once the conflicting case concluded subsequent to the scheduled time set. Instead of attempting to proceed with appellant's trial, which was next in priority mandated by USCR 17.1, defense counsel agreed to try another case not listed in the notice of conflicts letter. Notwithstanding the fact the trial court had continued the case at that point, appellant's action effectively removed the state's final opportunity to comply with the speedy trial demand.
Georgia courts have sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal (Sykes, supra (Defendant waived speedy trial demand by not appearing, without justification, when his case was called to trial); Jackson v. State, 222 Ga. App. 700 (475 SE2d 717) (1996) (Defendant waived speedy trial demand where defense counsel sought a six-week continuance that precluded State from trying defendant's case until the last empaneled jury of the term)) as well as dilution of the right to a speedy trial by conditioning it on the "convenience" or "ingenuity" of the State in scheduling the case. Birts v. State, 192 Ga. App. 476 (385 SE2d 120) (1989) (Defendant did not waive speedy trial demand for failing to appear when case was called for trial where defense counsel had been granted a formal leave of absence and the State delayed scheduling the matter until the last day of the term). Were we to disregard defense counsel's failure to adhere to the priority of cases mandated under USCR 17.1, we would leave open the possibility for manipulation of the trial calendar by defense counsel. Had defense counsel followed USCR 17.1, the State would have had an opportunity to try appellant's case before the end of the term. Under these circumstances, we conclude that defense counsel's actions in failing to notify the affected trial courts once the higher priority matter had concluded waived appellant's speedy trial demand.
Judgment affirmed. All the Justices concur
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