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State v. Dodge8/9/2001
e [September] 1999 term of court . . . would count for purposes of OCGA § 17-7-170 (b) only if jurors were impaneled and qualified at the time of his demand, or thereafter in the term, and the [November 1999] term would count only if jurors were impaneled and qualified during that term.
The record is devoid of any evidence that jurors were impaneled and qualified to try [Dodge] when filed demand, or during the remainder of the [September] 1999 term, or that any jurors were impaneled and qualified in the [November 1999] term. [Dodge] neither submitted an affidavit from the clerk, nor obtained the presence of any witness at the hearing on the motion for acquittal. It was [Dodge's] burden below to establish that there were qualified jurors impaneled during the relevant court terms so as to trigger OCGA § 17-7-170. (Citations and punctuation omitted; emphasis supplied.) Union v. State, 273 Ga. 666, 666-667 (2001). See also Redstrom v. State, 239 Ga. App. 769, 770 (521 SE2d 904) (1999); Macinnis v. State, 235 Ga. App. 732, 734 (510 SE2d 557) (1998).
Since Dodge failed to establish that jurors were impaneled on October 22, 25, 26, 27, 28, or 29, the trial court erred in counting the September term toward the two term limit under OCGA § 17-7-170. Accordingly, it was error for the trial court to grant her motion for discharge and acquittal.
Judgment reversed. Johnson, P. J., and Ruffin, J., concur.
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