Birts v. State

*480Beasley, Judge,

dissenting.

The accusation against defendant was filed in the March term, on March 24.

At the next term, counsel filed an application for leave of absence in this case, pursuant to USCR 16, for what amounted to 8 jury trial days of that term and 4 jury trial days of the July term. There was no speedy trial demand pending. The State did not object to leave being approved, and the court, which determines the time for trial (Clark v. State, 138 Ga. App. 266, 271 (7) (226 SE2d 89) (1976)), granted the leave as it may do in its discretion.

On May 13, pursuant to USCR 32.1, the criminal jury calendar for the remainder of the term was published, setting trials for the week of June 13. Defendant’s case, in which no demand had been filed, was not on it. Juries were impaneled for 6 other weeks in that term also, beginning May 9, but not for criminal cases.

A week after the criminal jury calendar was published, defendant filed a statutory trial demand. However, her case was not called. She was unavailable for trial during the scheduled criminal jury trial week for that term because her counsel had already obtained leave of court for that entire week plus 3 additional days. The other jury-impaneled weeks left remaining in the term (3, 1 being a 4-day week, or a total of 19 days) were scheduled for civil cases; counsel’s leave was for 3 of those days.

The next term, the July term, had 4 jury-impaneled weeks (including 1 4-day week). Defendant’s case was put on the one week scheduled for criminal trials. However, she was unavailable for trial because her counsel had already obtained leave for the first two days of that week and was engaged in other criminal cases for the remainder of the week. The court had attempted to provide a trial that week by sending only the four cases represented by defendant’s counsel to a pro hac vice judge on Wednesday, as soon as counsel’s court leave expired. Defendant’s case was not reached. (Of the 19 jury-impaneled days in the July term, counsel’s court leave or representation in other cases made defendant unavailable for trial on 7 of them.)

The court tried to accommodate defendant’s demand, and the State was ready. Although OCGA § 17-7-170 (b) does not expressly exclude from computation those periods in the term during which juries are impaneled and qualified for civil trial weeks, it does recognize that a court which has both civil and criminal jurisdiction may in managing the calendars schedule a totally civil term. Insofar as misdemeanor cases such as this one are concerned, defendant would have no right to be tried during that term at all. By the same token, the management of cases within a dual term would not mandate by law the removal of cases from civil calendars so as to provide a jury trial for a criminal defendant who wishes a speedy trial but is unavailable *481for the regularly scheduled criminal trial week and then some.

Decided July 12, 1989 Rehearing denied July 26, 1989 Alan Mullinax, for appellant. Gerald N. Blaney, Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

The statute provides that defendant may demand a trial at the current term or at the next succeeding term, provided juries are impaneled and qualified. It does not say defendant may demand a trial when ready, during those periods. It does not say defendant may demand a trial when her counsel is available during those periods. It does not say defendant may condition demand to certain dates or to exclude certain dates and particularly the whole criminal jury calendar. To the contrary, the statute implies that if defendant demands prompt trial, he or she must be ready when the case is legitimately called.

That has been recognized over and over again by the appellate courts. “A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482 (15 SE 553) (1892). “[T]he defendant may waive his right to . . . automatic discharge by some action on his part or on the part of his counsel, such as his own request for a continuance of the case. [Cit.]” Parker v. State, 135 Ga. App. 620, 621 (4) (218 SE2d 324) (1975). Defendant is entitled to discharge “provided ‘that the failure to try be not due to the voluntary act of the (defendant); as, for instance, voluntary absence from court, or obtaining a postponement to another term, and the like. In all such cases the (defendant) will be held to have waived his demand.’ ” State v. Allen, 165 Ga. App. 86, 87 (299 SE2d 158) (1983).

In this case, the trial court was not in error as a matter of law in finding under the circumstances here that defendant was unavailable. The court and the State were ready, willing, and able, but she was not, albeit for good reason. In any event, the delay should not as a matter of law be laid at the doorstep of the court or the State so as to bring about a total discharge.