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Jones v. State7/16/2001
WHOLE COURT
The question on appeal is whether the defendant's numerous continuances and leaves of absence, which left only a seven-day window for trying the case during the second term, and his consenting to a notice resetting the case over to the next term, waived his speedy trial demand. We hold such actions did waive the demand and therefore affirm the trial court's decision not to discharge the defendant on these grounds.
On February 28, 2000, within the January through March 2000 term of the DeKalb County State Court, the solicitor filed a formal accusation charging Brad Jones with driving under the influence of alcohol and disregarding a red light. Although Jones filed a request for a speedy trial pursuant to OCGA § 17-7-170, the case was not tried during either that term or the subsequent April through June term of court. Jones appeals the denial of his motion for discharge and acquittal on that ground.
The facts show that the case was scheduled for arraignment on March 6, 2000. On March 2, Jones, through his attorney, waived arraignment and signed notice for the April 7, 2000 trial calendar call. On March 9, the same counsel filed an entry of appearance, several motions (including a motion to suppress), discovery requests, and a demand for a "trial by jury pursuant to. . . OCGA § 17-7-170." On that same day, counsel also filed a notice of leave of absence covering the periods of March 20-31, April 3-7, May 29-June 2, and June 19-30.
On March 16, the court scheduled Jones's case for a motions hearing on April 4. Jones's counsel filed a conflict letter covering the April 4 hearing, in which he requested that the matter be rescheduled if he could not appear. On April 4, Jones appeared personally and signed a notice to reschedule his motions hearing to May 2. On April 26, Jones's counsel filed another conflict letter covering the May 2 motions hearing, in which he again requested that the matter be rescheduled if he could not appear. Meanwhile, on May 1, counsel filed an amended motion to suppress that challenged the constitutionality of the implied consent warning. On May 2, Jones again appeared personally and signed another notice that the motions hearing would be rescheduled, this time to July 5, with the trial scheduled for July 7. These dates fell outside of the April through June 2000 term of the DeKalb State Court. There is no dispute that jurors were impaneled during both the January and April terms of court.
At the July 5 motion hearing, counsel appeared and withdrew all motions. On July 7, at the trial calendar call, counsel announced the filing of the motion for discharge and acquittal for failure to provide a speedy trial. After a hearing, the court denied the motion. The court held that " he continuances by virtue of the conflict letters coupled with the notice of leaves filed when Defendant's Counsel first entered the case made Defendant's Counsel unavailable for hearings and trial during a substantial portion of both terms. . . . The entire course of conduct of delay was caused by defendant's Counsel." Jones appeals this order.
"If a defendant who filed a demand for trial under OCGA § 17-7-170 (a) is not tried during the term in which the demand was filed or the next succeeding regular term of court and jurors were impaneled and qualified to try the defendant in both terms, the defendant must be absolutely discharged and acquitted. OCGA § 17-7-170 (b)." "A defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand." The State bears the burden of show
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