dissenting.
I respectfully dissent. Although the defense attorney’s actions *837suggest an attempt to manipulate the system to obtain an acquittal, in this case the record shows that it was the court that chose to schedule the case for trial outside of the speedy trial period, and that it did so for a reason that does not constitute waiver by Jones.
“A defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand.” Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994). But, the defendant’s actions must show that he “affirmatively sought to avoid trial.” Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120) (1989). The burden of showing such waiver is on the State. Id.
On April 26, Jones’ counsel filed a conflict letter covering the scheduled May 2 motions hearing, in which he requested that the matter be rescheduled if he could not appear. Then, on May 1, counsel filed an amended motion to suppress that challenged the constitutionality of the implied consent warning, which the court referred to as a “Klink motion.” See Klink v. State, 272 Ga. 605 (533 SE2d 92) (2000). On May 2, Jones’ counsel did not appear because of the conflict. But Jones did appear, personally, and he signed a notice from the court showing that the motions hearing would be rescheduled to July 5, with the trial scheduled for July 7. These dates fell outside of the April through June 2000 term of the DeKalb State Court. In its order denying the motion to acquit, the court acknowledged that it continued the case until July in the hopes that the Supreme Court would have decided the issue raised in the Klink motion by that time.
Requests for continuance that do not postpone the trial to outside of the two available terms do not generally constitute waiver of the speedy trial demand. Weidlund v. State, 191 Ga. App. 668, 670-671 (382 SE2d 709) (1989); State v. McNeil, 176 Ga. App. 323, 325 (335 SE2d 728) (1985). Here, Jones did not request a continuance outside of the speedy trial demand period — the request specified no certain time. Nor was the court forced, in response to the request, to choose a time outside of that period. The court could have scheduled the matter for trial in May and heard Jones’ motion before trial. (Jones’ counsel’s pending leave of absence did not cover all of the court’s May trial calendar.) The fact that neither Jones nor his counsel objected to the court continuing the trial until outside of the term, even if the court acted out of a concern for Jones, standing alone, is not an affirmative action of waiver. Ballew v. State, 211 Ga. App. 672, 673-674 (440 SE2d 76) (1994). And, we cannot conclude that the May 2, 2000 notice of hearing signed by the defendant constituted a *838request for continuance.13
Decided July 16, 2001 Reconsideration denied July 31, 2001 Monte K. Davis, for appellant. Gwendolyn R. Keyes, Solicitor-General, Theresa S. Starkes, Assistant Solicitor-General, for appellee.Finally, the court’s own decision to continue the case from May 2 until July 5, in an attempt to wait until the Supreme Court decided the law relevant to the KLink motion, does not constitute a waiver by Jones of his speedy trial demand. State v. McNeil, 176 Ga. App. at 326 (removal of case from trial calendar in order to await appellate resolution of an evidentiary issue in a different case should not act as a waiver of speedy trial demand).
State v. Davis, 243 Ga. App. 867 (534 SE2d 159) (2000), is easily distinguished. In that case, the defense attorney requested a special setting outside of the speedy trial term — a clear waiver — and that is the context in which the term “consent to reset the trial” was used in the quotation from that case found in the majority opinion. There is a great difference between a lawyer requesting a special setting outside of the term, and a defendant signing a notice from the court that the court is rescheduling the case to outside of the term.
In short, the court had an option to schedule the case for trial in May rather than postpone it until July. (And, it earlier had the option of scheduling the trial during the April trial calendar with the motions hearing immediately preceding.) The State has the burden of showing waiver by the defendant, and it did not show that Jones waived the available trial dates in May. While manipulation of the judicial system is a great concern, the law nevertheless requires acquittal here.
The document on its face does not purport to be a request but simply a notice of court action. The fact that the defendant signed it does not change that fact. Our reading of the document indicates that the purpose of the signature is simply to show that Jones received notice of the court’s rescheduling of the hearing.