Patricia Birts, charged on March 24, 1988, with DUI and “following too close,” appeals the trial court’s denial of “absolute discharge and acquittal,” for failure of speedy trial. She filed her demand for speedy trial under OCGA § 17-7-170, on May 20, 1988.
The May term of Gwinnett State Court began, and jurors were empaneled, the week of May 9, and continued weekly through the week of June 20. The May term calendar was published May 13, prior to Birts’ demand for trial. Also on that date, May 13, Birts’ attorney was granted a formal leave of absence from the court for the entire week of June 13 and the first two days of the week of July 18. The July term of court, next succeeding, extended weekly from July 5 until the week of July 25.
Despite Birts’ attorney’s court-granted formal leave of absence for the week of June 13, the State placed Birts’ trial on calendar for June 16, and when she did not appear, the State made a “Motion to Strike Trial Demand.” The trial court granted this motion.
However, the State did place Birts’ case on the trial calendar in the next succeeding term, for the week of July 18. Birts’ counsel had obtained a formal leave of absence for the first two days of that week. The State asserts, however, that the case “was not reached because of appellant’s counsel’s representation of other defendants” [during the remainder of the week].
Birts’ case was not placed on any other calendar, and in September she filed her motion for absolute discharge and acquittal under OCGA § 17-7-170. Held:
The State attempts to justify the trial court’s denial of Birts’ motion for discharge, but we need elaborate very little in reversing. It is clear, or ought to be, that while Birts’ counsel was absent for seven days by official leave of the court during the two terms after the demand for trial, there were other weeks during May, and in June and *477July, when she could have been placed for trial. She was not. That is to say, despite Birts’ counsel’s proper absence by leave of court for the week of June 13 and the first two days of the July 18 week, the State scheduled her case only twice in the two terms: during those same two weeks.
The State excuses this placement of Birts’ case for trial only on the two weeks of counsel’s formal leave of absence, by suggesting her demand was not “proper” (OCGA 17-7-170) because it was made after her attorney had on May 3 requested a formal leave of absence for seven days in June and July. This justification is without merit. It proposes that an attorney can never ask for leave of absence if he has or acquires a case in which he might make a demand for speedy trial.
If there were a rule that an attorney may not ask for court leave while he has a criminal case pending in which he may later make a speedy trial demand, breach of such a hypothetical rule was not a waiver of the demand for trial in this case. It is the burden of the State to show that Birts’ failure to be tried was due to such absence or other affirmative act of defendant. State v. Allen, 165 Ga. App. 86, 87 (299 SE2d 158); Parker v. State, 135 Ga. App. 620, 621 (218 SE2d 324). The State’s failure to try Birts at some point within the two terms, May and July, as OCGA § 17-7-170 absolutely requires be done, was clearly not due to her counsel’s official leave of absence on only seven days of the 2-Vz months during which she could have been scheduled for trial. Her counsel’s leave of absence was not sudden or derelict; it was sought by motion on May 3, which was granted May 13, long before the State chose to place her on the calendar for those very times (June 13 and the week of July 18).
The trial court found that even if counsel was properly absent by leave the first two days of the week of July 18, “[c]ounsel’s representation of [other] defendants in three other cases [in the last three days of] the week of July 18 . . . depleted the balance of the trial week. ...” This finding does not explain or justify the State’s failure to set her for trial during some other week over the two terms, when it had notice or knowledge well in advance that counsel would be absent by leave of court for two days of the week of July 18. That the State then scheduled the case on the remaining three days with three others known to be represented by appellant’s counsel, is not this defendant’s fault.
The State waited until the last available moment to schedule a trial demanded 2-A months before, and piled it and several other cases upon the attorney in three days. Clearly the defense counsel’s inability to reach this case under these circumstances was not an “affirmative waiver” of this defendant’s speedy trial demand. It does not reflect that the defendant affirmatively sought to avoid trial. The procedural evidence is very clear that the State scheduled trial only when *478appellant’s counsel was absent or otherwise heavily engaged in other trials set by the State. Thus, the denial of her statutory right to absolute discharge and acquittal under § 17-7-170 on grounds it was she who affirmatively sought to avoid any trial (c.f. Bennett v. State, 158 Ga. App. 421 (280 SE2d 429)) is clearly erroneous.
The dissent has lengthily analyzed the Gwinnett State Court’s entire civil and criminal trial schedule, to show that during the two relevant terms of court there were very few weeks of actual trial opportunity available. The dissent’s analysis includes the point that the second term (July term) contained only one week scheduled for criminal trials. Thereupon, the dissent concludes that it was defendant’s fault by waiver that, the State and trial court having thus far failed to schedule her case for trial at a time when her attorney was not on proper leave, the trial court then at the last opportunity during the second term attempted to “accommodate defendant’s demand” by attempting to “provide a trial by sending only the four cases represented by defendant’s counsel to a pro hac vice judge on Wednesday, as soon as counsel’s leave expired [but] defendant’s case was not reached.” (Emphasis supplied.)
We do not see how the failure of this last-minute attempt at “accommodation” should be laid at appellant’s feet, in the total circumstances of this case. The statute does not provide that the State and the trial court shall provide a trial for appellant if one can be squeezed in; it does not provide that a trial does not have to be provided if the court does not have enough criminal trial dates scheduled, or enough judges to try all the criminal cases scheduled plus the one demanded; and it does not provide that the State and court can wait until the last possible opportunity and then try to accommodate the demand. It surely does not provide that, if the trial has not been scheduled for a time when it could have been heard, given due notice of defense counsel’s proper leave, and the trial court attempts to accommodate the defendant but her case is not “reached,” then the defendant’s demand has been waived. The statute provides that upon proper demand, defendant shall be acquitted and discharged, if she “is not tried when the demand is made or at the next succeeding regular term thereafter, provided at both court terms there were juries impaneled and qualified to try her.” This language does not condition itself on there being enough juries impaneled and qualified, or how many juries there were, or whether there were “enough” criminal trial weeks scheduled in the two terms. If we analyzed every case on such a basis, the statute would be gutted and the rights provided by it would become empty, depending only upon the State’s and the court’s convenience and ingenuity.
The demand would have been satisfied if the trial had been set for the earliest available date; while we do not say the State must *479always act accordingly, it clearly cannot wait until the last available date and deprive the defendant of her statutory right to trial or discharge when the court’s attempts to accommodate her fail.
Judgment reversed.
Carley, C. J., McMurray, P. J., Banke, P. J., Sognier and Benham, JJ., concur. Pope, J., concurs specially. Deen, P. J., and Beasley, J., dissent.