dissenting.
As I believe that the majority has today effectively eliminated Uniform Superior Court Rule 31.1, I must respectfully dissent. Because the trial court erred by denying Woodward’s motion for a continuance and by allowing the State to introduce the similar transaction evidence without complying with USCR 31.1 and 31.3,1 would reverse this case.
This appeal concerns whether the Uniform Superior Court Rules apply equally to the prosecution and to the defendant and whether the prosecution must suffer any consequence for completely failing to *369comply with them. As I believe that the Rules must apply equally and that there must be consequences for ignoring the Rules, I cannot agree that Woodward’s conviction should be affirmed.
The majority, however, excuses the prosecution’s total failure to comply with the Rules2 because the victim of the similar transaction was listed on the prosecution’s witness list and because the prosecutor many months before the trial told defense counsel that she intended to introduce evidence of the similar transaction and discussed the matter with him. I cannot accept this reasoning for it permits oral, informal notifications of the State’s intent to introduce similar transaction evidence, when the Rule requires written notice that has been filed with the court.3
Further, I cannot accept the majority’s characterization of the trial court’s actions as merely shortening the time in which the State could file its notice of intent to introduce the similar transaction evidence under USCR 31.1. The State made no request to shorten the time; the prosecutor, without filing or serving any notice on the defense, orally sought authority from the trial court to introduce the similar transaction evidence. While the trial court’s action had the effect of reducing the notice period, in actuality the trial court merely eliminated the time provided in the Rule. In my opinion, the effect of the trial court’s action was to waive the ten-day notice requirement of the Rule. As no such authority is granted under the Rule, I cannot agree that the trial court’s procedure should be allowed to stand. As we are now countenancing this procedure, we may as well announce that the Rule has been eliminated and return to trial by ambush — the very thing the Rule was intended to eliminate.
Given the usual course of litigation, oral notices will become the rule and not an exception. Soon we will be determining how little oral notice will suffice: Will a passing mention in a hallway be enough, a telephone message, or some sort of informal conversation? And, after that we will measure how definite the oral notice must be: Can the prosecution simply suggest that it might introduce similar transaction evidence, or must the intention be more definite? As USCR 31.1 was designed to eliminate this uncertainty, I cannot accept the majority’s result.
Also, I cannot agree that merely listing a witness on the witness list and saying that the witness will be called to testify about a similar transaction is sufficient to put counsel on notice that the State *370will not comply with the Rules, and, therefore, defense counsel must conduct an investigation of the witness’s prospective testimony as if the State had complied with the Rules. Given the constraints of any lawyer’s resources, but especially those limiting the time and resources of a public defender’s office, I do not find unreasonable defense counsel’s decision to wait until the prosecution gave the notice required by the Rules before beginning his investigation. This decision appears more reasonable in light of the State’s repeated failure to give notice even though the case had appeared on several previous trial calendars, and the fact that what appeared to be a serious offense had been dead docketed by the State.
Because the State’s only excuse for its failing to give the required notice was that it was an “oversight,” I must question whether the prosecution merely forgot to give the notice on the other occasions as well, or whether the prosecution simply vacillated on whether to seek introduction of this evidence between the time the prosecutor first mentioned it to defense counsel and the actual trial date. I do not believe that we should hold defense counsel responsible for what may have been the prosecutor’s indecision. Further, holding that the procedure used in this case is permissible under these circumstances now allows prosecutors to hamper the defense’s effectiveness by requiring that the defense investigate all potential witnesses as similar transaction witnesses, whether the prosecution has made the decision to call those witnesses or not.
The majority excuses the failure to grant a continuance because defense counsel could not be specific about why the continuance was required. It seems to me, however, that the basis and need for the delay were perfectly obvious, and counsel could not be more specific because the prosecutor, intentionally or not, had sandbagged him by not giving notice under the Rules. Indeed, how could counsel have identified the witnesses he needed to interview or what actions were required when the lack of notice deprived him of the opportunity to make these determinations? Further, the prosecution gave no compelling reason for refusing the continuance; the only reason given by the prosecutor for opposing the continuance was that she did not want to wait. Consequently, we have the unusual situation where the party who, by ignoring the Rule, created the need for a continuance benefits from its failure.
Finally, I cannot find that these errors were harmless. I acknowledge that the crime for which Woodward was convicted was serious and the testimony underlying the conviction established reprehensible conduct. Nevertheless, the prosecution felt that it was necessary to introduce the similar transaction evidence to secure the conviction, and we are aware that similar transaction evidence is by its nature particularly compelling. More importantly, however, appli*371cation of the harmless error rule in this case is inappropriate because the prosecution’s conduct induced the error. By excusing this conduct, the majority is rewarding the prosecution’s disregard of the Rules. Woodward was entitled to a trial conducted in accordance with the Rules even though he was charged and convicted of a serious offense. In my view, the serious nature of the charge heightens the prosecution’s responsibility, not lessens it.
USCR 31.1 and 31.3 provide that:
Notices of the state’s intention to present evidence of similar transactions or occurrences . . . shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge. Such filing shall be in accordance with the following procedures.
(Emphasis supplied.) USCR 31.1.
(A) The prosecution may, upon notice filed in accordance with section 31.1 of these rules, request of the court in which the accusation or indictment is pending leave to present during the trial of the pending case evidence of similar transactions or occurrences.
(B) The notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice. The judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury. The burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution. The state may present during the trial evidence of only those similar transactions or occurrences specifically approved by the judge.
USCR 31.3.
Nevertheless, the prosecution waited until the day before Woodward’s trial was to begin to ask the trial court to allow it to introduce evidence of a similar transaction. Woodward immediately objected because he had not received written notice of the State’s intent to introduce evidence of a similar transaction as required by USCR 31.3, and no notice was on file with the trial court. The State’s response was that failure to give notice was an oversight and that the trial court should allow the State to introduce the evidence anyway *372because Woodward was aware of the State’s intention because the victim of the similar transaction was on the prosecution’s witness list, and the prosecutor had discussed with Woodward’s defense counsel that the State had located this similar transaction and told him that the State intended to use it.
Woodward’s counsel contended that his recollection of the conversations differed from the prosecutor’s, and also contended that any discussion with the prosecutor "was many, many months ago,” that they were in the context of the prosecutor encouraging defense counsel to enter a guilty plea, and that counsel waited for the notice from the prosecution to see if the State really intended to use the similar transaction. Defense counsel concluded that, as he had not received the required notice, perhaps the State had witness problems or perhaps the prosecutor decided not to use the similar transaction because the case was so weak it had been dead docketed, or, indeed, that the use of the similar transaction was merely a threat. Also, he contended that his conclusions were justified because the case had been on numerous earlier trial calendars and he had never received any written notice from the prosecutor of her intention to use the similar transaction.
After Woodward’s comments, the prosecutor stated that she did not want to delay this case because the case had been delayed for various reasons by the defense, and the prosecutor wanted to go forward, and the trial court found that the prosecutor’s actions were sufficient.
Woodward’s counsel then stated that he was not prepared to litigate the issue and asked to delay the hearing until the following morning. After the prosecutor agreed to turn over the State’s file on the similar transaction, the trial court agreed to hold the hearing the next morning.
The next day, the prosecutor stated that her paralegal was going to file the notice so that she was prepared to proceed with the hearing on the similar transaction evidence. At that point the prosecutor stated in her place the information the State wished the trial court to consider regarding the similar transaction. The trial court, however, did not rule on the State’s request at that time, but deferred its decision until after jury selection, even though Woodward requested that the court do so before jury selection because whether the similar transaction evidence was going to be admitted would affect the way the jury was selected.
Woodward’s counsel also argued that he was not prepared to go forward because he was being asked to defend, on one day’s notice, what was essentially a second rape case, that he had been informed by Woodward’s father that there were witnesses whom he needed to interview, but he had been unable to do so. He had not been able to *373subpoena any potential witnesses, and thus he requested a continuance.
The trial court denied the continuance because Woodward had known about this for a long time, but he chose not to interview the witnesses. Therefore, he could not claim that he was surprised.
After the jury was selected, the trial court ruled that the similar transaction evidence could be admitted, and Woodward again moved for a continuance, which the court immediately denied.
“The purpose of the time requirement of USCR 31.1 is fundamental fairness. The rule recognizes the difficulty of rebutting evidence of specific acts unless timely notice of the state’s intention to offer evidence is given.” Loggins v. State, 260 Ga. 1, 2 (2) (388 SE2d 675) (1990). The Rule’s purpose is to provide a criminal defendant adequate notice of the State’s intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial, Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988), and to give a criminal defendant fair and adequate notice of the State’s intention to introduce evidence of a prior similar transaction, Howard v. State, 194 Ga. App. 443 (390 SE2d 662) (1990), so the defendant would have time in which to prepare a response that would otherwise not usually be available during a jury trial. Harmon v. State, 259 Ga. 444-445 (2) (383 SE2d 874) (1989). This court’s rulings in this case eviscerate these principles.
Further,
[a] violation of the rule must result in prejudice to the defendant. The rule clearly presupposes that the State’s failure to comply with the rule will result in harm to the defendant by failing to give him adequate notice of the similar transactions sought to be used by the State. Consequently, non-compliance with the rule puts the burden on the State to prove that its violation of the rule’s requirements did not harm the defendant. However, the State can avoid the consequences of its failure to adhere to the rule by showing that the defendant had the requisite notice in spite of the State’s failure. The mere fact that appellant may have been served with the State’s file, with no indication whatsoever that the State intended to use the similar offense as evidence in appellant’s trial or that appellant knew that the State so intended, would not suffice to provide the requisite notice. The rule contemplates that a defendant be apprised of the State’s intent to use a similar offense as evidence and not *374that he merely be informed of the State’s possession of evidence of a similar offense.
(Citation and punctuation omitted; emphasis supplied.) Story v. State, 196 Ga. App. 590, 591-592 (396 SE2d 547) (1990). The prosecution did not prove that Woodward was not harmed by its actions, and the majority now shifts the burden to Woodward to show that he was not harmed.
Although USCR 31.1 grants the trial court complete discretion in deciding whether to vary the time for filing of the notice and the trial court’s decision will not be upset absent abuse, Armstrong v. State, 265 Ga. 18, 19 (2) (453 SE2d 442) (1995), I believe the trial court abused its discretion. The court gave Woodward no opportunity to interview any witnesses. Compare Watkins v. State, 206 Ga. App. 701, 703 (1) (a) (426 SE2d 238) (1992). Further, this is not a case of newly discovered evidence. Compare Chemielowiec v. State, 250 Ga. App. 66, 67 (2) (550 SE2d 120) (2001). Moreover, although not mandatory, Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990), USCR 31.2 provides that the hearing on notices “[generally . . . will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.” Of course, because of the prosecutor’s actions this was not done in this case.
I believe that Woodward was entitled to rely upon our Rules, Price v. State, 245 Ga. App. 128, 133 (2) (b) (535 SE2d 766) (2000), and to expect that the State would comply with them. Therefore, I believe it was reasonable under the circumstances of this case, where the similar transaction, a seemingly serious offense, had been dead docketed and the case had been placed on several trial calendars without the State ever giving notice of its intention to introduce this evidence, for Woodward to delay his investigation of any similar transaction evidence until he was provided with the required notice, even though he was aware that the State had information about a similar transaction and might attempt to use it. This is what our Rule allows, and I believe that the trial court, and the majority focus too much on what, in hindsight, Woodward’s defense counsel might have done if only he had known that the prosecution would completely ignore the Rule, and not enough on the prosecution’s failures, which caused this problem. This court now rewards the prosecution for failing to comply with the Rules.
Here, the State’s failure to provide timely notice of its intent is compounded by its failure to have a valid reason for not doing so; the State merely recited that it was an “oversight.” In this regard, the State had as much knowledge of the similar transaction as Woodward, but completely failed to comply with the Rule, and yet the *375State’s failure is excused if not rewarded, while Woodward is penalized.
Decided July 15, 2003 Adeline A. Johnson, for appellant. Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.Moreover, given the State’s complete disregard of the Rules, I am troubled by the trial court’s proceeding to trial without giving Woodward any opportunity to investigate the case once the State’s intent was finally made known. The only reason given by the State for insisting on proceeding immediately is that the State did not want any further delay.
Under these facts, I find that the State has not proven that Woodward was not harmed and that the trial court abused its discretion by requiring Woodward to go to trial. Accordingly, as I would reverse the judgment of the trial court, I must respectfully dissent.
I say total failure to comply with the Rule because the State gave no written notice of its intent to introduce the similar transaction before asking the court to be allowed to do so, the earlier information was oral, and it was not filed with the court.
In this case, even though the hearing was delayed, the notice was not filed before the hearing began.