concurring in part and dissenting in part.
I fully concur with the majority as to Division 1. With respect to Division 2, however, I must respectfully dissent for the following reasons.
The State argues that the trial court erred in granting Summage’s motion because his “manipulations,” including his counsel’s end-of-term leave of absence, impaired the State’s ability to try Summage within the time prescribed by OCGA § 17-7-170.1 The majority states that the timing of his counsel’s revocation “impeded the trial court’s scheduling ability.” Certainly, however, the trial court is in the best position to determine whether its scheduling ability is being manipulated or impeded, and here the trial court evidently concluded that filing one leave of absence did not constitute manipulation of its calendar.2 And “[ujnder the ‘clearly erroneous’ test, we will not disturb the trial court’s factual findings if there is any evidence to sustain them.”3 Thus, I agree with the trial court that Summage did not waive his speedy trial rights as to the charges contained solely in the second indictment.
I am authorized to state that Judge Barnes and Judge Miller join in this dissent.
*635Decided March 29, 2004 Patrick H. Head, District Attorney, Dana J. Norman, Russell J. Parker, Assistant District Attorneys, for appellant. Brian Steel, for appellee.In concluding that the State failed to establish waiver, the trial court acted as a factfinder. See State v. Bell, 274 Ga. 719, 720 (2) (559 SE2d 477) (2002).
Cf. Jones v. State, 250 Ga. App. 829 (553 SE2d 24) (2001) (physical precedent only) (defendant’s numerous continuances and leaves of absence, and his consenting to a notice resetting his case over to the next term, waived his speedy trial demand).
Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 317 (2) (489 SE2d 310) (1997).