dissenting.
As pointed out by the majority, Barker v. Wingo, 407 U. S. 514 (1971) presents a four-factor balancing test in considering the merits of each case where an assertion of denial of the right to a speedy trial has been made. The second factor in this balancing test is a consideration of the reasons given by the state for the delay. In the present case, there was a delay of 27 months and the majority opinion concedes that no reasons were given by the state for this long delay.
The majority rely heavily on the fact that appellant did not make a demand for a speedy trial. The majority concludes that appellant had some responsibility to pursue his case and bring it to trial, although not as heavy a burden in that regard as the prosecution. See Dickey v. Florida, 398 U. S. 30, 37 (90 SC 1564, 26 LE2d 26) (1970). However, as appellant states, he was unaware that the charges against him were in existence. Appellant argues he was informed that the charges in question had been dropped. The majority’s inference that he was not anxious to go to trial and "took his chances” are not evident from the record. The presumption of waiver of a fundamental right from inaction is inconsistent with the Supreme Court’s pronouncements on waiver of constitutional rights. Barker v. Wingo, supra, p. 525.
I believe that in concluding the appellant was not prejudiced in any way, the majority has overlooked the inherent prejudice which accompanies any long delay, not *472only in anxiety and uncertainty on the part of a defendant, but, as in this case, where the defendant claims in good faith that he was unaware the charges were still pending against him, there is an obvious handicap in preparing a defense using witnesses who are now unavailable or whose memories have faded with the elapse of time.
Hall v. State, 131 Ga. App. 786 (206 SE2d 644) (1974) is a similar case in which the appellant there had also been incarcerated throughout the delay. In that case the court stated that, "when the right to speedy trial is at stake, it may be equally realistic and necessary to assume prejudice once the accused shows that he was denied a rapid prosecution.” p. 788 (quoting from the concurring opinion of Justices Brennan and Marshall in Dickey v. Florida, supra, p. 55). The majority opinion distinguishes Hall on the basis of a demand made for a speedy trial. However, under the undisputed facts of this case, a demand could not reasonably be expected when the charges were unknown to the appellant.
In United States v. Mann, 291 FSupp. 268, 271 (SD N. Y.) (1968), the court states: "Where delay is as long and as groundless as that revealed here, prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years [Cits.]”
In conclusion, where a balancing test is to be used, it is incumbent upon the prosecution to show some reason for excessive delay, and in the absence of any reasons, once the delay is shown, it is impossible to weigh the factors in favor of the prosecution. Assuming, as the Supreme Court stated in Barker, supra, that no one of the four above mentioned factors is a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial, the inescapable result of considering the facts of this case is that defendant has suffered a deprivation of his rights under the plain provisions of the Georgia Constitution, Art. I, Sec. I, Par. V (Code Ann. § 2-105). A good discussion of the present statutory and decisional law in Georgia in contrast with the A. B. A. minimum standards, can be found in a Comparative *473Analysis of American Bar Association Standards for Criminal Justice with Georgia Laws, Rules and Legal Practice (May, 1974). In my opinion, we are deficient in Georgia in our implementation of the speedy trial provision of our own Constitution. This case illustrates it because a delay of 27 months without any good reason is too long. Therefore, I respectfully dissent.
I am authorized to state that Justice Gunter concurs in this dissent.