Strickland v. State

Beasley, Judge,

dissenting.

I respectfully dissent, as no error is shown.

During the second term, defendant’s case was called for trial on the nonjury calendar, which commenced after the jury calendar. There is some evidence in the record that he had earlier asked for a bench trial, which explains his case having been scheduled on the nonjury calendar. Defendant contends that when he moved for acquittal at the time his case was called for bench trial, he had demanded a jury trial. Since he could demand a jury even after having announced that a bench trial would suffice, he would be entitled to acquittal if the court did not provide a jury trial in the November term, which was not yet concluded.

If the jurors had already been discharged for the term, the court would not be able to provide a jury trial. See DeKrasner v. State, 54 Ga. App. 41 (1) (187 SE 402) (1936). But if the jurors were subject to recall, defendant would not be entitled to acquittal because the second term had not yet concluded without his being tried. See Bryning *616v. State, 86 Ga. App. 35 (5) (70 SE2d 779) (1952).

Decided July 13, 1989 Rehearing denied July 26, 1989 Lane & Tucker, Alan D. Tucker, for appellant. Richard H. Taylor, Solicitor, for appellee.

The record does not reflect whether he in fact demanded a jury trial when the case was called on the bench calendar on December 16, and it does not reflect that the court was unable to provide a jury trial during the remaining weeks of that term. All it reflects is that the court denied the motion for acquittal. Without more, we cannot conclude that the trial court erred as a matter of law, as it appears that the motion was premature.

I am authorized to state that Chief Judge Carley and Judge Pope join in this dissent.