concurring specially.
Although I concur fully in Judge Miller’s opinion, I write separately to further discuss the balance of rights and duties between State and defendant intended by our speedy trial jurisprudence. In this case, we cannot allow this precarious balance to be upset by defense counsel’s interplay of motions, leaves of absence, and conflict letters which were used to both manipulate and abuse the system.
OCGA § 17-7-170 (b) provides:
If the person [who has properly filed a demand for speedy trial] is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.
In this case, Jones filed his demand for a speedy trial on March 9, 2000, thereby requiring that he be tried either in the January-March term or the April-June term of the DeKalb County State Court.
This right to an automatic discharge is not absolute. It may be waived by either the defendant or his attorney.
The defendant may waive his right to such automatic discharge by some action on his part or on the part of his counsel. Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. 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 affirma*833tively that he consented to passing the case until a subsequent term.
(Punctuation and emphasis omitted.) Ballew v. State.9
Here, the rescheduling of Jones’ case was precipitated by the interplay of his attorney’s leaves of absence and conflicts. The time-line of pertinent events, as revealed by the record, follows:
First Term (January-March)
February 28, 2000: Accusation filed against Jones for DUI and running a red light
March 2, 2000: Jones waives arraignment set for March 6, 2000, and his counsel signs notice for case being set on April 7, 2000 trial calendar
March 9, 2000: Jones’ counsel files the following pertinent documents: (1) Defendant’s Waiver of Formal Arraignment, Entry of Not Guilty Plea, and Demand for Jury Trial (including a speedy trial request); (2) two motions to suppress evidence; and (3) Notice of Leave of Absence (covering March 20-31, April 3-7, May 29-June 2, and June 19-30)
March 10, 2000: Calendar call for March trials in DeKalb
March 16, 2000: Trial court issues rule nisi setting a motions hearing for Jones on April 4, 2000
March 20-31, 2000: Dates for March trials in DeKalb
March 20-31, 2000: Jones’ counsel on leave of absence
March 30, 2000: Jones’ counsel files a conflict letter covering the April 4 motions hearing requesting that the hearing be rescheduled if he cannot appear
Second Term (April-June)
April 3-7, 2000: Jones’ counsel on leave of absence
*834April 4, 2000: Date for April motions hearings in DeKalb
April 4, 2000: Jones appears before trial court and signs a notice to reschedule his motions hearing to May 2, 2000, the next date for hearings on the trial court’s calendar
April 7, 2000: Calendar call for April cases in DeKalb
April 17-28, 2000: Dates for April trials in DeKalb
April 26, 2000: Jones’ counsel files a conflict letter covering the May 2 hearing requesting that the hearing be rescheduled if he cannot appear
May 1, 2000: Jones files an amended motion to suppress evidence, challenging the constitutionality of implied consent warnings based on a case pending before the Supreme Court of Georgia
May 2, 2000: Date for May motions hearings in DeKalb
May 2, 2000: Jones appears before the trial court and signs a notice to reschedule his motions hearing to July 5, 2000, and his trial to July 7, 2000 trial calendar
May 5, 2000: Calendar call for May trials in DeKalb
May 22-June 2, 2000: Dates for May trials in DeKalb
May 29-June 2, 2000: Jones’ counsel on leave of absence
June 2, 2000: Date for June motions hearings in DeKalb
June 9, 2000: Calendar call for June trials in DeKalb
June 19-30, 2000: Dates for June trials in DeKalb
June 19-30, 2000: Jones’ counsel on leave of absence
July 5, 2000: Jones’ counsel appears in court and withdraws all pending motions
*835July 7, 2000: Jones files motion for acquittal and discharge pursuant to OCGA § 17-7-170
August 20, 2000: Trial court denies Jones’ motion for acquittal and discharge
The actions taken by Jones’ counsel must be considered to waive Jones’ right to a speedy trial, because such actions undermine the purpose of OCGA § 17-7-170. As an initial matter, through leaves and conflicts, Jones’ counsel was not available on the date for hearing motions in April or May. In addition, counsel was not available at all for trial in March, he was available in April, he was available for one week in May, and he was completely unavailable in June. In light of Jones’ desire to have his suppression motions heard prior to trial and the amended filing made in May, Jones’ counsel presented the trial court with a virtually impossible task of scheduling his trial.
On March 2, 2000, Jones’ counsel signed a notice placing Jones’ case on the April 7, 2000 trial calendar despite the fact that he had already filed for a leave of absence which included both that date and the date for hearing Jones’ motion to suppress. In addition, Jones’ counsel filed a conflict letter prior to the motions hearing asking that it be rescheduled, and, in accordance with this request, the trial court rescheduled Jones’ motion for the next available hearing date, May 2, 2000, with which, once again, Jones’ counsel had a conflict.
And when Jones’ counsel filed this letter of conflict on April 26, 2000, he knew the following: (1) he had a conflict with the May 2, 2000 hearing date; (2) only one date for hearings on motions remained in the two-term period, namely June 6, 2000; (3) that, following this last date for motions hearings, the only dates for trial were June 19-30, 2000; and (4) that he had a leave of absence for the entire two weeks of trial dates. In other words, at the time that he filed his last conflict letter, Jones’ counsel knew that, based on the official court calendar and the dates of his approved leave, Jones’ motions and trial could not be heard within the two terms of court applicable to Jones’ speedy trial demand. As a matter of ethics, Jones’ counsel should have notified the trial court of this situation that he had precipitated. Instead, by conflicting out, Jones’ counsel played the system, and, at the motions hearing on July 5, 2000, he announced checkmate.
Check, however, should be all that Jones’ counsel achieved, because OCGA § 17-7-170 was intended to insure the prompt trial of criminal defendants, not create a system by which lawyers can manipulate the system for the purpose of avoiding trial.
*836Georgia courts have sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal (Sykes [v. State]10 (defendant waived speedy trial demand by not appearing, without justification, when his case was called to trial); Jackson v. State11 (defendant waived speedy trial demand where defense counsel sought a six-week continuance that precluded State from trying defendant’s case until the last empaneled jury of the term)) as well as dilution of the right to a speedy trial by conditioning it on the convenience or ingenuity of the State in scheduling the case.
(Punctuation omitted.) Fisher v. State.12
And, contrary to Jones’ counsel’s arguments, Fisher, supra, does not require a different outcome in this case. In Fisher, our Supreme Court stated: “[S]ince the filing of a notice of conflicts is mandatory under the rules, it cannot be evidence that defendant consented to have his case tried at a later term.” Id. at 722. In this case, however, the scheduling difficulty was caused, not just by a conflict letter, but also by a clever interplay of motions and leaves of absence in addition. Therefore, Jones’ counsel’s argument that the filing of his last conflict letter cannot be considered a waiver lacks merit in this case. And, Jones’ counsel’s argument that he precluded a finding of waiver by calling the trial court to report after his conflict equally lacks merit. At the time of Jones’ counsel’s inquiry, his client’s hearing had already been postponed. As such, in this case, Jones’ counsel’s phone call is ultimately irrelevant to the outcome herein.
In this case, Jones’ counsel’s constant unavailability precipitated the delays which occurred in having his client’s case heard. Jones’ counsel, in a remarkable display of chutzpah, places all of the blame on the trial court, going so far as to argue that his leave of absence should have been revoked to ensure that his client received his trial. It is doubtful that a trial court would ordinarily have the authority to revoke a leave of absence once granted. Lawyers may well find trial courts reluctant to grant leaves of absence in the future where speedy trial demands have been filed by such lawyers.
I am authorized to state that Judge Eldridge joins in this special concurrence.
Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994).
Sykes v. State, 236 Ga. App. 518 (2) (511 SE2d 566) (1999).
Jackson v. State, 222 Ga. App. 700 (475 SE2d 717) (1996).
Fisher v. State, 273 Ga. 721, 723 (545 SE2d 895) (2001).