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Nusser v. State10/18/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
This is an appeal from the denial of Robert Aaron Nusser's motion for discharge and acquittal on constitutional speedy trial grounds. For the reasons set forth below, we conclude that the trial court did not abuse its discretion in denying Nusser's motion.
The record reflects that in the early morning of October 27, 2001, an officer with the Georgia Tech Police Department arrested Nusser for the offenses of Driving under the Influence of Alcohol (OCGA § 40-6- 391), Failure to Maintain Lane (OCGA § 40-6-48), and No County Decal (OCGA § 40-2-8 (c)). Nusser was released on bond later that same day.
On April 29, 2003, the Fulton County Solicitor General filed an accusation against Nusser in the State Court of Fulton County. Nusser's arraignment was set for September 5, 2003. Shortly before the arraignment, Nusser filed several motions in limine and requested a jury trial on the charged offenses.
Trial subsequently was scheduled for March 15, 2004. After receiving notice of the trial date, Nusser filed his motion for discharge and acquittal on constitutional speedy trial grounds on February 26, 2004.
The trial court proceeded with Nusser's motion on the date of trial. The trial court entertained oral argument from the parties, heard testimony from Nusser, and reviewed medical records submitted by Nusser. The trial court found that Nusser had failed to make a demand for a speedy trial in a sufficiently timely manner and failed to show any prejudice resulting from the delay between his arrest and trial. Based on these findings, the trial court held that the facts weighed in favor of concluding that Nusser's constitutional right to a speedy trial had not been violated. The trial court thus denied Nusser's motion, and Nusser thereafter filed this direct appeal.
Nusser argues that he has been denied his constitutional right to a speedy trial under Art. I, Sec. I, Par. XI of the Georgia Constitution and under the Sixth Amendment to the United States Constitution. "We examine this claim under the four-part test of Barker v. Wingo, 407 U.S. 514 (92 SC 2182, 33 LE2d 101) (1972), considering (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant. See Brown v. State, 264 Ga. 803, 804 (2) (450 SE2d 821) (1994)." Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997). " he factors should be considered together in a balancing test of the conduct of the prosecution and the defendant." (Punctuation and citations omitted.) Nairon, 215 Ga. App. at 76 (1). Absent an abuse of discretion, we must affirm the trial court's balancing and weighing of the four Barker factors. State v. Sutton, 273 Ga. App. 84, 85 (614 SE2d 206) (2005). Guided by these principles, we turn to an analysis of the four factors in this case.
The length of the delay. As a general rule, any delay approaching a year raises a threshold presumption of prejudice. Doggett v. United States, 505 U.S. 647, 652 (II), n. 1 (112 SC 2686, 120 LE2d 520) (1992); State v. Bazemore, 249 Ga. App. 584, 585 (1) (a) (549 SE2d 426) (2001). Because the delay in this case was approximately 29 months from Nusser's arrest to the date of his scheduled trial, the trial court correctly concluded that the delay was presumptively prejudicial and weighed this factor in favor of Nusser.
The reason for the delay. The trial court concluded that this factor weighed in favor of Nusser, given that the only explanation provided for the delay was the high volume of cases routinely handled by the State Court of Fulton County. There is no evidence in the record that Nusser o
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