dissenting.
Because Lattimore failed to assert his right to a speedy trial, and because there was an affirmative showing that Lattimore’s trial defense was in no way impaired from the delay involved in this case, I must respectfully dissent from the majority’s erroneous conclusion that the trial court properly found a violation of Lattimore’s right to a speedy trial.
Lattimore was arrested on August 27, 2004, and since that time he never asserted his constitutional right to a speedy trial. Instead of asserting his right to a speedy trial, on July 17, 2009, nearly five years after his arrest, he filed a motion to dismiss the indictment. Lattimore’s failure to assert his right to a speedy trial is not excused by the fact that he was not re-indicted until February 2008, as “invocation of the speedy trial right need not await indictment, information, or other formal charge[.] [T]he accused can begin demanding that the right to a speedy trial be honored as soon as he or she is arrested.” (Punctuation and footnote omitted.) Ruffin v. State, 284 Ga. 52, 63 (2) (b) (iii) (663 SE2d 189) (2008). In any event, even after Lattimore was re-indicted, he still waited nearly another year and a half before filing his motion to dismiss, and even then he still had not made any demand for a speedy trial. Again, Lattimore’s failure to assert his right cannot be attributed to any action by the State, but must be attributed to Lattimore’s own failure to live up to his “responsibility to invoke the speedy trial right and put the government on notice that he... , unlike so many other criminal defendants, would prefer to be tried as soon as possible.” Id. at 62 (2) (b) (iii). Lattimore did not assert his right to a speedy trial “in due course,” as is legally required (id.), but instead chose not to assert his right at all. Due to this failure, “the third [Barker] factor, which ‘is entitled to strong evidentiary weight,’ ” must be weighed against him. Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273) (1984), overruled on other grounds, Character v. State, 285 Ga. 112 (2) (674 SE2d 280) (2009).1
Furthermore,
[although greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expecta*509tion that the defendant can demonstrate tangible prejudice to his or her ability to present a defense, [Lattimore] made no specific showing as to how his defense was impaired as a result of the . . . delay.
(Citation and punctuation omitted; emphasis supplied.) Williams v. State, 279 Ga. 106, 110 (1) (d) (610 SE2d 32) (2005) (analyzing whether defendant made showing of impairment to defense, and finding no violation of defendant’s right to speedy trial even after six-year delay). To the contrary, far from making a showing that his defense was impaired in any way, Lattimore has affirmatively shown that his defense was not impaired by the delay in this case. As the majority correctly concedes, Lattimore himself testified that his memory of what happened relating to the alleged murder is as good today as it was at the time that the crime occurred. Additionally, there is no evidence that any witnesses are missing or that their memories have faded. Where, as here, the record affirmatively demonstrates that the accused’s defense has not been impaired by the delay, the majority cannot rely on mere speculation to reach the opposite conclusion. See id.
In sum,
[h]ere, the record shows a delay in bringing [Lattimore] to trial, which is presumptively prejudicial. But delay, standing alone, is insufficient to establish a speedy trial violation. And [Lattimore] has neither demonstrated nor claimed actual prejudice. Under these circumstances, where the delay was not deliberately caused by the State, [Lattimore] [did not] assert his right to a speedy trial, and he has failed to show specific prejudice caused by the delay,. . . the scales are weighted against [Lattimore’s] claim and in favor of the State’s duty to protect the person and property of its citizens by prosecuting the criminal charges. Thus, . .. the trial court abused its discretion in granting [Lattimore’s] motion to dismiss the indictment.
(Punctuation and footnotes omitted.) State v. Stallworth, 293 Ga. App. 368, 370 (2) (667 SE2d 147) (2008). See also Doggett v. United States, 505 U S. 647, 658 (III) (B) (112 SC 2686, 120 LE2d 520) (1992) (defendant not entitled to relief where presumption of prejudice has been “persuasively rebutted”); Williams, supra, 279 Ga. at 110 (1) (d). The majority has erred in holding otherwise, and I must respectfully dissent.
I am authorized to state that Presiding Justice Carley joins in this dissent.
*510Decided June 7, 2010 Reconsideration denied July 12, 2010. Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Bettieanne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, for appellant. Jennifer Lubinsky, Kenneth D. Kondritzer, for appellee.Even if Lattimore had asserted his right to a speedy trial in his motion to dismiss the indictment, which he did not, this factor would still have to be weighed against him. Lattimore’s case was ready for trial, and had appeared on several trial calendars from April 2008 through January 2009. Neither side moved to continue these trial dates. Lattimore’s case simply was not reached on each of the calendars. Lattimore filed his July 17, 2009 motion to dismiss the indictment just before the trial court released its calendar with Lattimore’s case set for August 2009. Where, as here, the record would reveal that Lattimore “waited several years to assert his right to a speedy trial, until the case was nearing the time for trial, this [Barker] factor, which must be given ‘strong evidentiary weight,’ [would] weight ] against [him].” (Citation omitted.) Marshall v. State, 286 Ga. 446, 447 (2) (c) (689 SE2d 283) (2010).