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Jones v. State7/16/2001
be rescheduled 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. In its order denying the motion to acquit, the court acknowledged that it continued the case until July in the hopes that the Supreme Court would have decided the issue raised in the Klink motion by that time.
Requests for continuance that do not postpone the trial to outside of the two available terms do not generally constitute waiver of the speedy trial demand. Weidlund v. State, 191 Ga. App. 668, 670-671 (382 SE2d 709) (1989); State v. McNeil, 176 Ga. App. 323,325 (335 SE2d 728) (1985). Here, Jones did not request a continuance outside of the speedy trial demand period - the request specified no certain time. Nor was the court forced, in response to the request, to choose a time outside of that period. The court could have scheduled the matter for trial in May and heard Jones' motion before trial. (Jones' counsel's pending leave of absence did not cover all of the court's May trial calendar.) The fact that neither Jones nor his counsel objected to the court continuing the trial until outside of the term, even if the court acted out of a concern for Jones, standing alone, is not an affirmative action of waiver. Ballew v. State, 211 Ga. App. 672, 673-674 (440 SE2d 76) (1994). And, we cannot conclude that the May 2, 2000 notice of hearing signed by the defendant constituted a request for continuance.
Finally, the court's own decision to continue the case from May 2 until July 5, in an attempt to wait until the Supreme Court decided the law relevant to the "Klink" motion, does not constitute a waiver by Jones of his speedy trial demand. State v. McNeil, 176 Ga. App. 323,326 (335 SE2d 728) (1985) (removal of case from trial calendar in order to await appellate resolution of an evidentiary issue in a different case should not act as a waiver of speedy trial demand).
State v. Davis, 243 Ga. App. 867 (534 SE2d 159) (2000) is easily distinguished. In that case, the defense attorney requested a special setting outside of the speedy trial term - a clear waiver - and that is the context in which the term "consent to reset the trial" was used in the quotation from that case found in the majority opinion. There is a great difference between a lawyer requesting a special setting outside of the term, and a defendant signing a notice from the court that the court is rescheduling the case to outside of the term.
In short, the court had an option to schedule the case for trial in May rather than postpone it until July. (And, it earlier had the option of scheduling the trial during the April trial calendar with the motion hearing immediately preceding.) The State has the burden of showing waiver by the defendant and it did not show that the Jones waived the available trial dates in May. While manipulation of the judicial system is a great concern, the law nevertheless requires acquittal here.
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