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State v. Dodge8/9/2001
The State appeals from the discharge and acquittal of Danielle Dodge, who had been charged with three counts of driving under the influence of drugs or alcohol to the extent it was less safe to drive, OCGA § 40-6-391 (a), and running a stop sign, OCGA § 40-6-20 (a). For the following reasons, we reverse the trial court's judgment.
The State Court of Fulton County has six terms of court each year which commence on the first Monday of the following months: January, March, May, July, September, and November. OCGA § 15-7-40; Price v. State, 245 Ga. App. 128 (535 SE2d 766) (2000). The record in this case shows that the State filed an accusation against Dodge on July 28, 1999. On October 15, 1999, Dodge's counsel, William C. Head, allegedly filed a request for a leave of absence for the following dates in 1999: October 28 and 29; November 5; November 22 through 26; December 2 and 3; and December 9 through 31. Six days later, on October 21, 1999, Head filed a demand for speedy trial, pursuant to OCGA § 17-7-170. According to this statute, a defendant may request a speedy trial within the term during which the accusation is filed or at the next succeeding court term. Id. If the defendant is not tried during the term in which the demand is made or the next succeeding regular court term, she is entitled to be discharged and acquitted, "provided at both court terms there were juries impaneled and qualified to try [her.]" Id.
Upon receipt of Dodge's demand for speedy trial, the State immediately notified the trial court's case manager and requested that the case be placed on the first available trial calendar. The trial court scheduled Dodge's arraignment for November 22, 1999, and trial was set for December 13, 1999, the next available trial date. Dodge waived arraignment on November 16, 1999, and pled not guilty.
On December 13, 1999, Head failed to appear in court, instead sending an associate of his firm. At that time, the trial court gave Head, via the associate, three options: (1) serve as Dodge's counsel and try the case that week; (2) allow another attorney to proceed with the case; or (3) withdraw the speedy trial demand. Head sent a facsimile to the trial court the same day stating that the options he had been given were not "viable," and asserted that the State had missed its opportunity to try the case. When Head failed to appear to try the case by 4:00 p.m. on December 13, the trial court continued the case until February 15, 2000.
Dodge moved for discharge and acquittal on March 30, 2000. In granting the motion, the trial court found that Dodge's motion for speedy trial was timely and proper under OCGA § 17-7-170, and that Head's notice of leave of absence was likewise timely and proper under Uniform Superior Court Rule 16. The trial court also found that the State failed to object to Head's leave of absence in a timely manner, and that it had failed to demonstrate that its inability to try the case within two terms resulted from some affirmative act of Dodge.
1. Initially, we find that the trial court erred in determining that Head's notice of leave of absence was "timely and proper" under USCR 16. The face of the notice clearly shows that Head actually requested a leave of absence totaling at least 33 calendar days. Pursuant to USCR 16.2, requests for leave in excess of 30 days must be submitted to the opposing counsel at least ten days before filing with the trial court, and if the opposing party chooses to waive the ten day requirement, it must be in writing. The trial court retains discretion about whether to permit the extended leave. Id. The record affirmatively shows that Head failed to give the State the requisite ten days notice before
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