2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 7 - Demand for Trial; Announcement of Readiness for Trial
§ 17-7-170. Demand for Speedy Trial; Service; Discharge and Acquittal for Lack of Prosecution; Expiration; Reversal on Direct Appeal; Mistrial and Retrial; Special Pleas of Incompetency

1. Any defendant against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting the defendant's life may enter a demand for speedy trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, the defendant may at any subsequent court term thereafter demand a speedy trial. In either case, the demand for speedy trial shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned or, if the case is not assigned, upon the chief judge of the court in which the case is pending. A demand for speedy trial filed pursuant to this Code section shall be filed as a separate, distinct, and individual document and shall not be a part of any other pleading or document. Such demand shall clearly be titled "Demand for Speedy Trial"; reference this Code section within the pleading; and identify the indictment number or accusation number for which such demand is being made. The demand for speedy trial shall be binding only in the court in which the demand for speedy trial is filed, except where the case is transferred from one court to another without a request from the defendant.
2. If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation. For purposes of computing the term at which a misdemeanor must be tried under this Code section, there shall be excluded any civil term of court in a county in which civil and criminal terms of court are designated; and for purposes of this Code section it shall be as if such civil term was not held.
3. Any demand for speedy trial filed pursuant to this Code section shall expire at the conclusion of the trial or upon the defendant entering a plea of guilty or nolo contendere.
4. If a case in which a demand for speedy trial has been filed, as provided in this Code section, is reversed on direct appeal, a new demand for speedy trial shall be filed within the term of court in which the remittitur from the appellate court is received by the clerk of court or at the next succeeding regular court term thereafter.
5. If the case in which a demand for speedy trial has been filed as provided in this Code section results in a mistrial, the case shall be tried at the next succeeding regular term of court.
6. If a defendant files a special plea of incompetency to stand trial pursuant to Code Section 17-7-130 or if the court, pursuant to Code Section 17-7-129, conducts a trial on the competency of the defendant, the period of time during which such matter is pending shall not be included in the computation of determining whether a demand for speedy trial has been satisfied.

(Ga. L. 1859, p. 60, § 1; Code 1863, § 4534; Code 1868, § 4554; Code 1873, § 4648; Code 1882, § 4648; Penal Code 1895, § 958; Penal Code 1910, § 983; Code 1933, § 27-1901; Ga. L. 1985, p. 637, § 5; Ga. L. 1987, p. 841, § 1; Ga. L. 2003, p. 154, § 3; Ga. L. 2006, p. 893, § 1/HB 1421; Ga. L. 2011, p. 372, § 3/HB 421.)

- Requests by inmates for final disposition of indictments or accusations pending against them, § 42-6-3.

Filing and processing, caption, Uniform Superior Court Rules, Rule 36.3.

- For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005); 58 Mercer L. Rev. 83 (2006).

ANALYSIS

• General Consideration
• Timing
• Procedure
• Role of Clerk
• Qualified Jury
• Demand
• Waiver
• Impact of Motions for Mistrials
• Discharge and Acquittal
• Application
• Appeals

This section was known as the demand statute. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

This section was imperative and admits of no exceptions. Consequently, trial or acquittal are the only alternatives. Hunley v. State, 105 Ga. 636, 31 S.E. 543 (1898); Harris v. State, 84 Ga. App. 1, 65 S.E.2d 267 (1951).

This section conferred a right upon the defendant, in aid of the constitutional guarantee of speedy trial, which does not admit of an implied exception in the case of a mistrial which is the result of an inevitable accident. Rider v. State, 103 Ga. App. 184, 118 S.E.2d 749 (1961).

This section was jurisdictional. E.S. v. State, 134 Ga. App. 724, 215 S.E.2d 732 (1975).

- Because the penalty imposed by O.C.G.A. § 17-7-170 against the state is so great, the statute must be strictly construed. Day v. State, 187 Ga. App. 175, 369 S.E.2d 796 (1988).

- Defendant's demand for a speedy trial was premature when it was filed before the solicitor (now district attorney) filed the accusation and citations, because the protection conferred by O.C.G.A. § 17-7-170 attaches with the formal indictment or accusation and the clock starts running on the time for the accused to make a speedy trial demand on the date an accusation or indictment is filed with the clerk of court. State v. Bloodsworth, 241 Ga. App. 840, 528 S.E.2d 285 (2000).

- Unlike the statutory protections conferred by O.C.G.A. § 17-7-170 that attach with a formal indictment or accusation, a defendant's constitutional speedy trial right attaches upon arrest and can be asserted thereafter; likewise, the procedural bar created by the specific time deadlines found in the speedy trial statute do not apply to constitutional claims. Nusser v. State, 275 Ga. App. 896, 622 S.E.2d 105 (2005).

- This section was framed to carry into effect that provision of the Constitution which declares that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902); Bishop v. State, 11 Ga. App. 296, 75 S.E. 165 (1912).

Purpose of this section was to make effective the provision of the Constitution providing that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Dickerson v. State, 108 Ga. App. 548, 134 S.E.2d 51 (1963).

O.C.G.A. § 17-7-170 was enacted to implement the constitutional provision for a speedy trial. Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).

O.C.G.A. § 17-7-170 applies to outright dereliction by the state in failing to provide a speedy trial if one could have been had; the statute does not operate to force the state to impanel a jury for one defendant who makes a late demand. West v. State, 193 Ga. App. 117, 387 S.E.2d 44 (1989).

- Since the right of a speedy trial became a guarantee under the state constitution, this section was to be regarded as an aid and implementation of the state constitutional right and to secure to a defendant in a criminal case the defendant's right thereunder. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

- There is no distinction between the constitutional right to a speedy trial under the U.S. Const., amend. 6 and the statutory right to a speedy trial under O.C.G.A. § 17-7-170 as the statutory provision is obviously analogous in its purpose to the constitutional right to a speedy trial; as the concept of double jeopardy is closely implicated in both provisions, a defendant may directly appeal from the pretrial denial of either a constitutional or statutory speedy trial claim. Callaway v. State, 258 Ga. App. 118, 572 S.E.2d 751 (2002).

- Unlike the statutory protections conferred by O.C.G.A. §§ 17-7-170 and17-7-171 that attach with formal indictment or accusation, the Sixth Amendment provides constitutional protection over and above the statutory provisions and under that amendment, the right to a speedy trial attaches upon arrest and can be asserted thereafter; a trial court properly denied the defendant's statutory speedy trial demand when no indictment was filed, but improperly overlooked or failed to consider defendant's constitutional speedy trial demand and, thus, the trial court's judgment was vacated and the case was remanded with direction to the trial court to address the defendant's constitutional claims. Smith v. State, 266 Ga. App. 529, 597 S.E.2d 414 (2004).

- This section was not regarded as affording guidelines in relation to the federal constitutional provisions guaranteeing the right to a speedy trial, being limited to and in a proper case applicable only to the state right. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

- This section as originally enacted was doubtless in aid of and to implement the common-law right to a speedy trial existing in Georgia at least prior to 1861. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

- Defendant's rights under U.S. Const., amend. 6 to a speedy trial may be implemented by a written demand for trial. Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703 (1973).

- United States Const., amend. 6 is an independent guarantee of the right to a speedy trial, and the defendant's assertion or failure to assert the defendant's statutory right is simply one of the factors to be considered in determining whether the right under U.S. Const., amend. 6 has been impinged. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974).

- Although the defendant did not file a statutory demand for speedy trial pursuant to O.C.G.A. § 17-7-170, the defendant was not required to do so in order to prevail on a constitutional speedy trial claim. Miller v. State, 313 Ga. App. 552, 722 S.E.2d 152 (2012).

- Since the purpose of this section was to secure to defendants the rights to a speedy and public trial, the courts should seek to uphold rather than whittle away by judicial construction this and other provisions of the Bill of Rights, which secure the guarantees of freedom upon which this country is founded. Rider v. State, 103 Ga. App. 184, 118 S.E.2d 749 (1961).

Duty to bring the defendant to trial following arrest and accusation rests upon the court, the prosecutor, and the clerk of court, not the defendant. Klinetob v. State, 194 Ga. App. 52, 389 S.E.2d 551 (1989).

- Although it is true that an accused who suffers emotional stress while awaiting the disposition of the charges against the defendant is inherently prejudiced, the defendant has some obligation to attempt to alleviate this stress by requesting a speedy trial or filing a statutory demand for trial pursuant to this section. Cravey v. State, 147 Ga. App. 29, 248 S.E.2d 13 (1978).

O.C.G.A. § 17-7-170 did not require that defendant answer readily when the defendant's case was called for trial. Riley v. State, 212 Ga. App. 519, 442 S.E.2d 7 (1994).

This section applied to the offense only for which the demand for trial was made; not an offense nominally the same but substantially different. Brown v. State, 85 Ga. 713, 11 S.E. 831 (1890).

- This section applied to any person against whom a true bill of indictment is found and also to cases in which an accusation has been filed. Fisher v. State, 143 Ga. App. 493, 238 S.E.2d 584 (1977).

Right to make a demand for trial applies equally when a defendant is charged by accusation, rather than a bill of indictment. Frank v. State, 145 Ga. App. 678, 244 S.E.2d 619 (1978).

- It is the right of the defendant to demand a trial at the term of the court in which the indictment is returned and to have that demand entered on the minutes of the court. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

- Since the filing of a notice of conflicts is mandatory under Uniform Superior Court Rules, Rule 17.1, it cannot be evidence that the defendant consented to have the defendant's case tried at a later term. Fisher v. State, 273 Ga. 721, 545 S.E.2d 895 (2001).

After filing a notice of conflicts under Uniform Superior Court Rules, Rule 17.1, defense counsel's actions in failing to notify the affected trial courts once a higher priority matter concluded waived the defendant's speedy trial demand. Fisher v. State, 273 Ga. 721, 545 S.E.2d 895 (2001).

- Defendant's appellate counsel was ineffective in not raising trial counsel's failure to move for dismissal pursuant to a statutory speedy trial demand. Sloan v. Sanders, 271 Ga. 299, 519 S.E.2d 219 (1999).

Exercise of discretion under this section lied with the trial judge rather than the appellate courts. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144 (1970).

- Amendment of a statutory provision, so as to change the dates of commencement of terms of court, was not an ex post facto law as applied to the defendant, who was not at any time entitled to discharge and acquittal of the offenses with which the defendant was charged. Aspinwall v. State, 201 Ga. App. 203, 410 S.E.2d 388 (1991).

Due to an error in the enactment, an amendment changing the terms of court from four to two had not gone into effect at the time the defendant moved for acquittal; thus, the defendant was entitled to acquittal for failure to try the defendant within the term when the defendant's speedy trial demand was made. Houston v. State, 217 Ga. App. 783, 459 S.E.2d 583 (1995).

- Even if the accused was guilty, the failure of the state to obtain evidence furnished no justification for disregarding this section. Bishop v. State, 11 Ga. App. 296, 75 S.E. 165 (1912).

Extended or special session of a regular term of court constitutes a regular term, not a special term, for purposes of O.C.G.A. § 17-7-170. Barkley v. State, 179 Ga. App. 795, 348 S.E.2d 122 (1986).

- Defendant who is unable to satisfy the second proviso of O.C.G.A. § 17-7-170 because of involuntary extradition to another state is not without a speedy trial remedy since the defendant can invoke the provisions of O.C.G.A. § 42-6-20 et seq. Bashlor v. State, 165 Ga. App. 329, 299 S.E.2d 418 (1983).

If defendant was incarcerated in another state on the date the demand for speedy trial was filed, and the defendant failed to show that juries were impaneled and qualified in the county from the time the defendant was extradited and returned until the end of the term, the defendant's motion for discharge and acquittal was premature. Cooper v. State, 224 Ga. App. 621, 481 S.E.2d 607 (1997).

Defendant must have been "available" for trial before the defendant's speedy trial demand ran; because the defendant had been incarcerated in Texas and Louisiana since the defendant's indictment, the defendant was not available to the trial court, the defendant's speedy trial demand did not run, and the trial court correctly denied the defendant's motion for discharge and acquittal. Baldwin v. State, 270 Ga. App. 201, 605 S.E.2d 889 (2004).

Trial court properly denied the defendant's plea in bar based on speedy-trial grounds because the defendant's incarceration in Michigan extended the time for the defendant's speedy trial demand as the defendant was not available for trial because the defendant was in the custody of a different sovereign and the Interstate Agreement on Detainers Act, O.C.G.A. § 42-6-20 et seq., did not apply; there was no inherent authority in a Georgia court to compel the defendant's presence or in-court attendance since the defendant was incarcerated by or in the control of a different sovereign, specifically Michigan; and nothing in the record reflected the defendant's desire to waive the defendant's right to be present at trial. Gosline v. State, 341 Ga. App. 708, 802 S.E.2d 275 (2017).

- Although the defendant moved for discharge and acquittal for delay in trial under O.C.G.A. § 17-7-170 and sought to circumvent defendant's absence from the jurisdiction by arguing the state voluntarily released the defendant to the United States court, the presence requirement was not waived by the state's action. Luke v. State, 180 Ga. App. 378, 349 S.E.2d 391 (1986), overruled as to presence requirement, State v. Collins, 201 Ga. App. 500, 411 S.E.2d 546 (1991).

Defendant's incarceration in federal custody at the time the defendant filed a demand for trial and time during which jurors were impaneled extended time in which the state had to try the defendant. McIver v. State, 205 Ga. App. 648, 423 S.E.2d 27, cert. denied, 205 Ga. App. 900, 423 S.E.2d 27 (1992).

- Dismissal of a criminal case pursuant to O.C.G.A. § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute. Head v. State, 189 Ga. App. 111, 375 S.E.2d 46 (1988); Hanson v. State, 196 Ga. App. 589, 396 S.E.2d 510 (1990); Merrill v. State, 201 Ga. App. 247, 411 S.E.2d 283, cert. denied, 201 Ga. App. 904, 411 S.E.2d 283 (1991).

- Because the trial court's calendar did not allow for the defendant's trial to be continued within the current term of court and hence a demand for a speedy trial could not be met and in light of the fact that the court gave the parties an opportunity to dispose of the case by way of a plea agreement, the court's noncompliance with Ga. Unif. Super. Ct. R. 32.1, denial of a motion to continue, and dismissal of the case for want of prosecution were not an abuse of discretion. State v. Hitchcock, 285 Ga. App. 140, 645 S.E.2d 631 (2007).

Trial court did not wholly fail to comply with the seven-day notice requirement of Ga. Unif. Super. Ct. R. 32.1 because the trial court gave at least five days notice, and it was apparent by the defendant's demand for trial that the defendant had shortened the time for trial, which constituted a factor for the trial court to consider when setting the trial date; the trial court was attempting to comply with the demand for trial, and the only way to do so was by deviating from the notice requirement. Higuera-Hernandez v. State, 289 Ga. 553, 714 S.E.2d 236 (2011).

- Term of court, during which the defendant filed a demand for a speedy trial during the final week, would count for purposes of O.C.G.A. § 17-7-170(b) only if jurors were impaneled and qualified at the time of the defendant's demand, or thereafter in the term, and it was defendant's burden to establish that there were qualified jurors impaneled during the relevant court terms so as to trigger that section. Union v. State, 273 Ga. 666, 543 S.E.2d 683 (2001).

Because the defendant failed to show that jurors were impaneled and qualified to try the defendant's case during the relevant time period after the defendant filed the speedy trial demand, the trial court did not err in denying the defendant's motion for discharge and acquittal. Cown v. State, 259 Ga. App. 8, 576 S.E.2d 20 (2002).

Cited in Dacey v. State, 15 Ga. 286 (1854); Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902); Campbell v. State, 6 Ga. App. 539, 65 S.E. 307 (1909); Sneed v. State, 72 Ga. App. 102, 33 S.E.2d 29 (1945); Horne v. State, 94 Ga. App. 522, 95 S.E.2d 288 (1956); Connelly v. Balkcom, 213 Ga. 491, 99 S.E.2d 817 (1957); Butler v. State, 126 Ga. App. 22, 189 S.E.2d 870 (1972); Adams v. State, 129 Ga. App. 839, 201 S.E.2d 649 (1973); McRoy v. State, 131 Ga. App. 307, 205 S.E.2d 445 (1974); Wood v. State, 234 Ga. 758, 218 S.E.2d 47 (1975); State v. Clendinin, 136 Ga. App. 303, 221 S.E.2d 71 (1975); Cross v. State, 136 Ga. App. 400, 221 S.E.2d 615 (1975); State v. Weeks, 136 Ga. App. 637, 222 S.E.2d 117 (1975); State v. King, 137 Ga. App. 26, 222 S.E.2d 859 (1975); State v. Fields, 137 Ga. App. 726, 224 S.E.2d 829 (1976); Hightower v. State, 137 Ga. App. 790, 224 S.E.2d 842 (1976); State v. Rowe, 138 Ga. App. 904, 228 S.E.2d 3 (1976); Williams v. State, 140 Ga. App. 505, 231 S.E.2d 366 (1976); Gay v. State, 140 Ga. App. 516, 231 S.E.2d 509 (1976); Gibson v. Giles, 242 Ga. 720, 251 S.E.2d 231 (1978); Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808 (1980); State v. Benton, 154 Ga. App. 141, 267 S.E.2d 775 (1980); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980); Pate v. State, 158 Ga. App. 395, 280 S.E.2d 414 (1981); State v. Adamczyk, 162 Ga. App. 288, 290 S.E.2d 149 (1982); State v. Edwards, 162 Ga. App. 291, 290 S.E.2d 362 (1982); Reed v. State, 249 Ga. 344, 290 S.E.2d 469 (1982); Forbus v. State, 162 Ga. App. 307, 290 S.E.2d 559 (1982); State v. Floyd, 162 Ga. App. 291, 291 S.E.2d 264 (1982); Wallace v. State, 162 Ga. App. 367, 291 S.E.2d 437 (1982); Day v. State, 163 Ga. App. 839, 296 S.E.2d 145 (1982); Waller v. State, 251 Ga. 124, 303 S.E.2d 437 (1983); Mullins v. State, 167 Ga. App. 670, 307 S.E.2d 61 (1983); Dickerson v. State, 172 Ga. App. 267, 322 S.E.2d 502 (1984); Malpass v. State, 173 Ga. App. 690, 327 S.E.2d 753 (1985); Lawrence v. State, 174 Ga. App. 518, 330 S.E.2d 445 (1985); State v. Mintz, 179 Ga. App. 451, 346 S.E.2d 591 (1986); Dean v. State, 180 Ga. App. 770, 350 S.E.2d 489 (1986); State v. Spence, 179 Ga. App. 750, 347 S.E.2d 612 (1986); Stephens v. State, 185 Ga. App. 546, 365 S.E.2d 136 (1988); Brooks v. State, 187 Ga. App. 92, 369 S.E.2d 349 (1988); Claypool v. State, 188 Ga. App. 642, 373 S.E.2d 765 (1988); In re M.O.B., 190 Ga. App. 474, 378 S.E.2d 898 (1989); State v. Stewart, 191 Ga. App. 35, 381 S.E.2d 50 (1989); Stirling v. State, 192 Ga. App. 39, 383 S.E.2d 595 (1989); Dixon v. State, 196 Ga. App. 15, 395 S.E.2d 577 (1990); Proveaux v. State, 198 Ga. App. 119, 401 S.E.2d 12 (1990); Quick v. State, 198 Ga. App. 353, 401 S.E.2d 758 (1991); Redd v. State, 261 Ga. 300, 404 S.E.2d 264 (1991); Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Hall v. State, 201 Ga. App. 133, 410 S.E.2d 448 (1991); Wells v. State, 201 Ga. App. 398, 411 S.E.2d 125 (1991); Butler v. State, 207 Ga. App. 824, 429 S.E.2d 280 (1993); State v. Smith, 209 Ga. App. 404, 433 S.E.2d 599 (1993); McIver v. State, 212 Ga. App. 670, 442 S.E.2d 855 (1994); Obiozor v. State, 213 Ga. App. 523, 445 S.E.2d 553 (1994); Pope v. State, 214 Ga. App. 458, 448 S.E.2d 54 (1994); Walker v. State, 216 Ga. App. 236, 454 S.E.2d 156 (1995); State v. Ganong, 221 Ga. App. 250, 470 S.E.2d 794 (1996); Jackson v. State, 222 Ga. App. 700, 475 S.E.2d 717 (1996); Ganong v. State, 223 Ga. App. 163, 477 S.E.2d 324 (1996); Ingram v. State, 224 Ga. App. 271, 480 S.E.2d 302 (1997); Cross v. State, 272 Ga. 282, 528 S.E.2d 241 (2000); Copeland v. State, 248 Ga. App. 346, 546 S.E.2d 351 (2001); Williams v. State, 248 Ga. App. 353, 545 S.E.2d 621 (2001); Patten v. State, 250 Ga. App. 498, 552 S.E.2d 110 (2001); Brooks v. State, 257 Ga. App. 515, 571 S.E.2d 504 (2002); Mayfield v. State, 264 Ga. App. 551, 593 S.E.2d 851 (2003); Reedman v. State, 265 Ga. App. 162, 593 S.E.2d 46 (2003); Farmer v. State, 268 Ga. App. 831, 603 S.E.2d 16 (2004); Brown v. State, 275 Ga. App. 281, 620 S.E.2d 394 (2005); Burdett v. State, 285 Ga. App. 571, 646 S.E.2d 748 (2007); Ruffin v. State, 284 Ga. 52, 663 S.E.2d 189 (2008); Grizzard v. State, 301 Ga. App. 613, 688 S.E.2d 402 (2009); Teasley v. State, 307 Ga. App. 153, 704 S.E.2d 248 (2010); Weems v. State, 310 Ga. App. 590, 714 S.E.2d 119 (2011); Walker v. State, 290 Ga. 696, 723 S.E.2d 894 (2012); Neal v. Hibbard, 296 Ga. 882, 770 S.E.2d 600 (2015); State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015); In the Interest of M.D.H., 300 Ga. 46, 793 S.E.2d 49 (2016).

Timing

Time for filing accusation.

- Solicitor's (now district attorney) delay of approximately six weeks in filing the accusation was not unreasonable. State v. Frazier, 201 Ga. App. 6, 410 S.E.2d 134 (1991).

- Defendant cannot demand trial until there is a case in the court which has jurisdiction to try that defendant. Flint v. State, 12 Ga. App. 169, 76 S.E. 1032 (1913).

When the defendant did not file a demand for trial as a matter of right during either the court term at which the accusation was filed or the next regular court term, and did not seek special permission from the court to file at the subsequent term, the defendant's motion was not properly filed. Clark v. State, 236 Ga. App. 130, 510 S.E.2d 616 (1998), aff'd, 271 Ga. 519, 520 S.E.2d 694 (1999).

Trial court did not err in denying the defendant's motion for discharge and acquittal after the defendant filed a demand for a speedy trial of the defendant's three traffic offenses in the recorder's court, an assistant solicitor filed charges based on the same three offenses in the state court, the charges in the recorder's court were dismissed, and the defendant filed a motion for discharge and acquittal in the state court; since the recorder's court did not impanel juries nor have regular terms, the speedy trial demand filed in that court was not a filing of a speedy trial demand filed in the state court and because the defendant did not file a demand for a speedy trial in the state court, the trial court was not obligated to dismiss the defendant's case on that basis. Oliver v. State, 262 Ga. App. 637, 586 S.E.2d 333 (2003).

- In order to trigger this section, the defendant must make the defendant's demand at a time that a traverse jury is impaneled and qualified to try the defendant. Although the order entering the demand recites that the demand truly states that such was the case, the order is not conclusive. State v. McDonald, 242 Ga. 487, 249 S.E.2d 212 (1978).

Defendant's motion for acquittal and discharge based on the defendant's demand for a speedy trial was properly denied as the defendant failed to prove that jurors were impaneled at the time the defendant filed the defendant's demand on December 15, 2016, because the evidence showed that, although jurors were impaneled at the beginning of the day on December 15, 2016, the jurors were excused at some point during the morning or afternoon as the cases for which the jurors had been summoned were resolved by plea; and the defendant did not show at what time the defendant filed the defendant's demand on December 15, 2016, and whether the jurors had not yet been discharged at the time that the defendant filed the defendant's demand that day. Zarouk v. State, 344 Ga. App. 261, 810 S.E.2d 156 (2018).

Time for filing a speedy trial demand did not depend on whether jurors were impaneled; when the defendant's speedy trial demand was not filed within the same term that the accusation was filed or the next succeeding term, it was untimely filed, regardless of the fact that there were no jurors impaneled for the remainder of the term during which the accusation was filed, and the trial court's denial for discharge and acquittal was proper. Nesmith v. State, 267 Ga. App. 530, 600 S.E.2d 644 (2004).

- In prosecution charging the defendant with two counts of obstruction of an officer, the trial court properly denied the defendant's motion for discharge and acquittal pursuant to O.C.G.A. § 17-7-170 because the motion was based on the defendant's first demand for a speedy trial, which the defendant made before the indictment was returned. Collins v. State, 259 Ga. App. 587, 578 S.E.2d 201 (2003).

Since the defendant did not file a speedy trial demand until three terms following the term in which the defendant was indicted, the demand was untimely pursuant to O.C.G.A. § 17-7-170(a); the trial court would have had authority to dismiss the defendant's speedy trial demand even in the absence of a motion by the state since the demand was untimely. Branton v. State, 279 Ga. App. 300, 630 S.E.2d 787 (2006).

- Demand for speedy trial pursuant to the provisions of O.C.G.A. § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55 (1987); Wilson v. State, 186 Ga. App. 190, 366 S.E.2d 826 (1988); Little v. State, 188 Ga. App. 410, 373 S.E.2d 260 (1988).

When the defendant was arrested on a warrant and filed a pro se demand for a speedy trial from the issuance of the warrant rather than from an indictment or accusation, it was held that only a person who has been indicted or otherwise formally charged with a crime can invoke the rights afforded by O.C.G.A. § 17-7-170, and although the defendant was not without a means to produce a speedy trial, the defendant simply utilized the wrong method by prematurely invoking the provisions of that section rather than the constitutional protections which were available to the defendant. Subsequent filing of the indictment did not breathe life into the premature demand. State v. Hicks, 183 Ga. App. 715, 359 S.E.2d 712, cert. denied, 183 Ga. App. 907, 359 S.E.2d 712 (1987).

Demand for speedy trial filed the day before an indictment was returned was a nullity, and service of this prematurely filed demand, even after the indictment, was still only notice of a void demand. Thus, the trial court did not err by denying the motion. Grier v. State, 198 Ga. App. 840, 403 S.E.2d 857 (1991).

If an indictment is required in order to prosecute the offense, an accusation alone is insufficient, and a demand for speedy trial filed before an indictment is premature. Groom v. State, 212 Ga. App. 133, 441 S.E.2d 259 (1994).

O.C.G.A. § 17-7-170 did not apply when the defendant unilaterally filed a "waiver of indictment" and "consent to be tried upon accusation" and concurrently filed a demand for trial prior to presentment of the defendant's case to the grand jury. That section is available only to those against whom a true bill of indictment or an accusation is filed, not those who otherwise consent to jurisdiction. Smith v. State, 218 Ga. App. 392, 461 S.E.2d 561 (1995).

Defendant's right to demand a speedy trial was implicated when a uniform traffic citation was filed with the state court clerk's office on March 4 and, therefore, the defendant's speedy trial demand, filed on March 19, was timely. Hayek v. State, 269 Ga. 728, 506 S.E.2d 372 (1998).

Absent a waiver of indictment, the defendant's speedy trial demand filed prior to the defendant's indictment for a felony offense was premature. Ellsworth v. State, 232 Ga. App. 164, 500 S.E.2d 642 (1998).

Because all jurors were dismissed and not subject to recall at the time the defendant filed a motion at 4:00 p.m. on the last business day of the "present" term, the motion did not trigger the two-term period until the next succeeding term. Redstrom v. State, 239 Ga. App. 769, 521 S.E.2d 904 (1999).

Defendant's demand was not filed during the current or succeeding terms and the defendant did not receive special permission from the court to file untimely; thus, the trial court did not err in denying the defendant's motion for discharge and acquittal. Price v. State, 245 Ga. App. 128, 535 S.E.2d 766 (2000).

Trial court properly denied the defendant's motion to dismiss the indictment because the defendant never filed an effective statutory demand for a speedy trial and, as to the defendant's constitutional right to a speedy trial, the 68-month delay was presumed prejudicial, but the defendant prolonged the proceedings due to the defendant's own issues with retaining counsel, including the defendant's original counsel obtaining various leaves of absences due to illness and the defendant's unsuccessful efforts to retain other private counsel. Henderson v. State, 290 Ga. App. 427, 662 S.E.2d 652 (2008).

- Finding that the defendant's demand for a speedy trial was premature was proper because no uniform traffic citation, indictment, or other accusation had been filed by the state, and the defendant could not "file" the case personally by submitting citations and a speedy trial demand to the court clerk. Shire v. State, 225 Ga. App. 306, 483 S.E.2d 694 (1997).

Demand for speedy trial filed before the indictment is returned is a nullity. Daniels v. State, 235 Ga. App. 296, 509 S.E.2d 368 (1998).

Speedy trial demand that was filed prior to the solicitor's (district attorney's) consent to the filing of uniform traffic citations was premature, and the demand was not resuscitated when the formal accusation was filed. Meservey v. State, 230 Ga. App. 382, 496 S.E.2d 518 (1998).

Defendant's pro se demand for a speedy trial filed upon the defendant's arrest and prior to presentment of the accusation charging the defendant with criminal trespass was not filed timely. Carter v. State, 231 Ga. App. 42, 497 S.E.2d 812 (1998), but see Malloy v. State, 293 Ga. 350 (2013).

Because accusations and uniform traffic citations had not been filed at the time the defendant filed a demand, it was premature and the trial court properly denied the defendant's motion for discharge and acquittal and, even though the case was assigned a case number and an arraignment date, it was not "filed" within the meaning of O.C.G.A. § 17-7-170. Lagyak v. State, 245 Ga. App. 546, 538 S.E.2d 467 (2000).

Although the defendant filed a speedy trial demand prematurely, nonetheless the demand placed all parties on notice that the defendant wanted a speedy trial, and in considering the defendant's motion for discharge and acquittal on constitutional grounds, the trial court weighed this factor in the defendant's favor. State v. Bazemore, 249 Ga. App. 584, 549 S.E.2d 426 (2001).

Defendant's premature demand for trial was a nullity because it was filed the day before the defendant was indicted and was therefore fatally premature. Roberts v. State, 278 Ga. 610, 604 S.E.2d 781 (2004).

Trial court properly denied a defendant's motion for discharge and acquittal on statutory speedy trial grounds pursuant to O.C.G.A. § 17-7-170(a) because the defendant's speedy trial demand was premature and a nullity since the "complaint" was filed after the defendant's arrest, was not an accusation pursuant to O.C.G.A. §§ 17-7-70 and17-7-70.1, and the prosecution did not proceed on the "complaint." Campbell v. State, 294 Ga. App. 166, 669 S.E.2d 190 (2008).

Prematurely filed speedy trial demand cannot be resuscitated by a later returned accusation or indictment whether the accusation or indictment is filed in the same term or not. State v. McKenzie, 184 Ga. App. 191, 361 S.E.2d 54 (1987).

- Given the defendant's premature speedy trial demand, made after the defendant's arrest, but before the grand jury indictment was filed, the trial court properly denied the defendant's motion for discharge and acquittal. Roberts v. State, 263 Ga. App. 472, 588 S.E.2d 242 (2003).

- Because the issue of whether a defendant's prosecution was barred pursuant to O.C.G.A. § 17-7-170 was a statutory defense which could be raised in the pending criminal action and the claim was not relevant to the validity of any pre-trial detention, the habeas court properly dismissed the defendant's pre-trial habeas petition without an evidentiary hearing. Mungin v. St. Lawrence, 281 Ga. 671, 641 S.E.2d 541 (2007).

- Once a defendant knows a criminal charge has been brought against the defendant, the defendant is under a duty to monitor the status of the case if the defendant wishes to file a timely demand pursuant to O.C.G.A. § 17-7-170, and thus trigger the state's obligation to act to arraign and try the defendant within the allotted time. Smith v. State, 207 Ga. App. 762, 429 S.E.2d 149 (1993).

- O.C.G.A. § 17-7-170 affords the state a reasonable time frame in which to prepare and try the state's case against the accused. This would be no less true in a retrial after reversal on appeal. The state is able and obligated to try the case only during periods when the court has jurisdiction of the case. Ramirez v. State, 196 Ga. App. 11, 395 S.E.2d 315 (1990), aff'd, 211 Ga. App. 356, 439 S.E.2d 4 (1993), overruled on other grounds, Henry v. James, 264 Ga. 527, 449 S.E.2d 79 (1994).

- Moving to quash the indictments or other affirmative action, including the granting of a remittitur, tolls the period for demand of speedy trial. Fletcher v. State, 213 Ga. App. 401, 445 S.E.2d 279 (1994).

When an indictment is quashed on defendant's motion and the defendant is subsequently reindicted, a defendant must file a new speedy trial demand and the time limits for trial run only from the term in which the new demand is filed. Willingham v. State, 232 Ga. App. 244, 501 S.E.2d 575 (1998).

- Right to make a demand for trial applying equally when the defendant is charged by accusation, the defendant had the right, without the necessity of obtaining special permission of the court, to file a demand for trial during the term of the accusation or the next succeeding regular term. Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981).

- Although former Code 1933, § 27-1901 and Ga. L. 1952, p. 299, §§ 1 and 2 (see O.C.G.A. §§ 17-7-170 and17-7-171) prescribed a means of asserting one's right to a speedy trial after indictment, there was a right under U.S. Const., amend. 6 to a speedy trial, which attaches at arrest and can be asserted thereafter. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979); Glidewell v. State, 169 Ga. App. 858, 314 S.E.2d 924 (1984).

Protection conferred by O.C.G.A. § 17-7-170 attaches with the formal indictment or accusation, but over and above the statutory provisions, Sixth Amendment rights to speedy trial attach upon arrest. Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985).

- Delay in scheduling the defendant's trial was measured not from the defendant's arrest nor from the defendant's second indictment, but from the remittitur to the trial court on an earlier case involving the same charges; the delay of two and a half months between the remittitur and the scheduling of trial was not presumptively prejudicial and the defendant's right to a speedy trial was not violated. Roberts v. State, 279 Ga. App. 434, 631 S.E.2d 480 (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 645 S.E.2d 684 (2007).

- In computing the time allowed by the two-term requirement of O.C.G.A. § 17-7-170 (b), terms or remainders of terms during which no jury is impaneled are not counted. Smith v. State, 199 Ga. App. 771, 406 S.E.2d 118 (1991).

In computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted. Kaysen v. State, 191 Ga. App. 734, 382 S.E.2d 737 (1989); Deadwiley v. State, 192 Ga. App. 229, 384 S.E.2d 221 (1989); McIver v. State, 205 Ga. App. 648, 423 S.E.2d 27, cert. denied, 205 Ga. App. 900, 423 S.E.2d 27 (1992).

Trial court erred in granting the defendant's motion for discharge and acquittal in a case when the jury was unable to reach a unanimous verdict and the trial court was thus forced to declare a mistrial on the last business day of the term of court as the trial itself was commenced within the statutory two-term limit and the state immediately announced the state was ready to try the defendant on the unresolved charges; accordingly, the state had the right to try the defendant in that term if jurors were available, and, if not, the next succeeding regular term of court, again providing that there were juries impaneled and qualified to hear the case. State v. Varner, 277 Ga. 433, 589 S.E.2d 111 (2003).

As to "next succeeding term" in court to which indictment is transferred, see Castleberry v. State, 11 Ga. App. 757, 76 S.E. 74 (1912).

Demandant's rights cannot be defeated by adjourning one regular term into another regular term. Nix v. State, 5 Ga. App. 835, 63 S.E. 926 (1909).

- When the procedural evidence was very clear that the state scheduled trial only when the appellant's counsel was absent or otherwise heavily engaged in other trials set by the state, the denial of the appellant's statutory right to absolute discharge and acquittal under O.C.G.A. § 17-7-170 on grounds it was appellant who affirmatively sought to avoid any trial was clearly erroneous. Birts v. State, 192 Ga. App. 476, 385 S.E.2d 120 (1989).

- That the trial calendar for jury trials had been published before a defendant filed the defendant's demand for a speedy trial did not mean that there were no juries impaneled and qualified to try the defendant. A calendar serves the convenience of and promotes the orderly business of a court in disposing of the court's duties; nonetheless, the convenience of a set calendar must give way to the clear mandate of statutory law. O.C.G.A. § 17-7-170 clearly puts the burden on the state to try a defendant within the time limits set by statute. Campbell v. State, 199 Ga. App. 25, 403 S.E.2d 882 (1991).

- Since the state was ready to proceed with the defendant's trial within four months of the offense, but the defendant requested a continuance to prepare the defendant's case, any delay in trial was caused by the defendant's own actions, and the defendant was not denied a speedy trial. Myron v. State, 248 Ga. 120, 281 S.E.2d 600 (1981), cert. denied, 454 U.S. 1154, 102 S. Ct. 1025, 71 L. Ed. 2d 310 (1982).

Counsel's request for a continuance and consent to reset the trial to a time outside the period allowed by the demand for speedy trial waived the defendant's right to automatic discharge and acquittal under O.C.G.A. § 17-7-170. State v. Davis, 243 Ga. App. 867, 534 S.E.2d 159 (2000).

- Trial court improperly denied a continuance based on the ground that the defendant filed a speedy trial demand; a brief continuance did not waive a speedy trial demand when the court still could have tried the case within the time required, and nothing showed that the defendant here could not have been tried for the remainder of the term. Ingram v. State, 286 Ga. App. 662, 650 S.E.2d 743 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- In a case when a speedy trial demand was filed and, after an unrelated appeal, the remittitur from the Court of Appeals was filed near the end of the court term when no jury was present and available, that term did not count as one of the two terms in which the state must try the defendant. Pope v. State, 265 Ga. 473, 458 S.E.2d 115 (1995).

Impanelling of two traverse juries is sufficient; one when the demand is made, the other at the next succeeding term. Adams v. State, 65 Ga. 516 (1880).

- Fact that at the initial term at which the demand was made there was no jury impaneled is of no consequence, provided at least two terms pass at which a jury was impaneled. Bush v. State, 152 Ga. App. 598, 263 S.E.2d 499 (1979).

- This section referred to regular terms of court, and a party was not entitled to be discharged because the state failed to try the party at a special term held after demand was made. Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902).

- Although over 34 months elapsed from the date of a defendant's arrest to the date of the denial of a motion to dismiss the indictment based on an alleged Sixth Amendment speedy trial violation, the motion was properly denied. The defendant never filed a statutory demand for speedy trial under O.C.G.A. § 17-7-170 and only raised the constitutional right to a speedy trial in a motion filed 30 months after indictment; the state never sought a continuance; the delay was solely due to the congested docket; and the defendant had been free on bail and did not show that the defendant's ability to present a defense would be impaired. West v. State, 295 Ga. App. 15, 670 S.E.2d 833 (2008).

- Trial counsel was not ineffective because the second defendant's speedy trial demand was filed in a timely fashion. Maldonado v. State, 325 Ga. App. 41, 752 S.E.2d 112 (2013).

Procedure

Filing of demand.

- O.C.G.A. § 17-7-170 does not require the defendant to be tried within 120 days of the filing of a demand for trial. Carver v. State, 203 Ga. App. 197, 416 S.E.2d 810, cert. denied, 203 Ga. App. 905, 416 S.E.2d 810 (1992).

O.C.G.A. § 17-7-170 imposes no requirement that demand be made in a certain form or delivered to a specified officer of the court. Pless v. State, 157 Ga. App. 681, 278 S.E.2d 475 (1981).

- Court of Appeals in the case of State v. Adamczyk, 162 Ga. App. 288, 290 S.E.2d 149 (1982), expressly rejected as adequate a demand for "trial by jury" without more, and expressly overruled all cases allowing such loose language to stand for a proper demand for trial so as to invoke the penalty provisions of O.C.G.A. § 17-7-170. Smith v. State, 166 Ga. App. 352, 304 S.E.2d 476 (1983).

Demand to enjoy a trial by a jury of 12 cannot reasonably be construed as a demand for trial within the next succeeding term of court. Getz v. State, 251 Ga. 462, 306 S.E.2d 918 (1983).

Document filed by the defendant, captioned "Plea of Not Guilty and Demand for a Jury Trial," did not amount to a request for a speedy trial, but merely set forth a request for a trial by jury. Boyd v. State, 200 Ga. App. 591, 409 S.E.2d 44, cert. denied, No. S91C1482, 1991 Ga. LEXIS 584 (Ga. Sept. 6, 1991).

If the defendant sought a copy of the indictment and list of witnesses and requested that the defendant be "tried by a jury and waives nothing," this was not a speedy trial demand pursuant to O.C.G.A. § 17-7-170. Daniels v. State, 235 Ga. App. 296, 509 S.E.2d 368 (1998).

Trial court did not err in denying the defendant's motion for acquittal and discharge since the demand simply documented the defendant's request to be tried by a jury. Chastain v. State, 237 Ga. App. 640, 516 S.E.2d 362 (1999).

When demanding a speedy trial, the minimum acceptable standard required that a demand for trial be coupled with some other language placing the state on reasonable notice that a speedy trial under the sanctions of O.C.G.A. § 17-7-170 was being invoked, i.e., a reference to trial at the next term, reference to a "speedy trial," use of the language of the statute, or reference to the statute section. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004).

- Defendant's pleading captioned as defendant's "DEMAND," which included a demand for "trial by jury pursuant to the Official Code of Georgia Annotated, Section17-7-170 . . . ." could reasonably be construed as a demand for a speedy trial. Green v. State, 191 Ga. App. 873, 383 S.E.2d 359 (1989).

Pleading captioned a "waiver of jury trial & demand for jury trial," and demanding a jury trial in the event the defendant's case were transferred from the recorder's court to the superior court, constituted a demand for speedy trial under O.C.G.A. § 17-7-170, when the pleading served the important purpose of notifying the state and the court of the defendant's intention to proceed to a trial, or be discharged, at a subsequent term. Huff v. State, 201 Ga. App. 408, 411 S.E.2d 60, cert. denied, 201 Ga. App. 904, 411 S.E.2d 60 (1991).

Caption "demand for jury trial" on defendant's motion was legally sufficient to place the state on notice of the defendant's demand for speedy trial since the body of the notice stated clearly "this is a request for speedy trial under this section." Aranza v. State, 213 Ga. App. 192, 444 S.E.2d 349 (1994).

Demand for trial was sufficient even though it was captioned with an inaccurate indictment number. State v. Wright, 221 Ga. App. 584, 472 S.E.2d 144 (1996).

When counsel for a defendant charged with rape filed a document entitled "Entry of Appearance of Counsel and Demand for Trial," which simply demanded a trial, this was insufficient to invoke the sanctions of O.C.G.A. § 17-7-170 for violation of the right to speedy trial. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004).

- Document entitled "Arraignment Plea and Waiver" upon which a box was checked by the appellee next to the statement "I request a jury trial" did not constitute a demand for speedy trial pursuant to O.C.G.A. § 17-7-170. State v. King, 164 Ga. App. 834, 298 S.E.2d 586 (1982).

Demand for speedy trial was insufficient when the demand failed to identify the charges upon which the defendant demanded a speedy trial by name, date, term of court, or case number. Aranza v. State, 213 Ga. App. 192, 444 S.E.2d 349 (1994).

Provision in the fifth paragraph of a document entitled "Motion Filed on Behalf of Defendant" stating "causes now, the defendant in the above styled case and makes demand upon the state for a speedy trial," was insufficient to invoke speedy trial requirements. Dyal v. State, 211 Ga. App. 816, 440 S.E.2d 716 (1994).

Defendant's motion that requested a jury trial and referenced O.C.G.A. § 17-7-170 could not reasonably be construed to demand a speedy trial. Bennett v. State, 244 Ga. App. 149, 534 S.E.2d 881 (2000).

- Caption "JURY DEMAND" failed to set out the exact nature of a pleading as a demand for trial. A demand for trial will not be considered sufficient to invoke the extreme sanction of O.C.G.A. § 17-7-170 unless it is presented for what it is - a demand to be tried within the next succeeding term of court. Kramer v. State, 185 Ga. App. 254, 363 S.E.2d 800, cert. denied, 185 Ga. App. 910, 363 S.E.2d 800 (1987).

Defendant's "Omnibus Motion" was insufficient to invoke O.C.G.A. § 17-7-170 when, although the motion contained language requesting a trial, the caption of the motion obfuscated the nature of the pleading. Wilder v. State, 192 Ga. App. 891, 386 S.E.2d 685 (1989).

Because the defendant did not strictly comply with the pleading requirements, having titled the pleading "Defendant's Waiver of Formal Arraignment, Entry of 'Not Guilty Plea' and Demand for Jury Trial" rather than "Demand for Speedy Trial" and failing to make it a separate pleading, the trial court properly determined that the defendant was not entitled to discharge and acquittal. Uribe v. State, 346 Ga. App. 264, 816 S.E.2d 113 (2018).

- Letter addressed to and delivered to the district attorney by the defendant's attorney requesting a trial by jury is not a demand sufficient to invoke the discharge provisions of O.C.G.A. § 17-7-170. Forbus v. State, 250 Ga. 24, 295 S.E.2d 530 (1982).

Writing a request for speedy trial on the back of the indictment did not constitute actual notice to the prosecutor as required by O.C.G.A. § 17-7-170 and the trial court did not err in denying the defendant the extreme sanction of a directed verdict of acquittal and discharge. Carter v. State, 226 Ga. App. 198, 486 S.E.2d 79 (1997).

- Defendant's letter containing a specific request to be tried "at this or the next succeeding term of court" and a specific reference to O.C.G.A. § 17-7-170 was sufficient to invoke the extreme sanction of acquittal. State v. Prestia, 183 Ga. App. 24, 357 S.E.2d 829, cert. denied, 183 Ga. App. 907, 357 S.E.2d 829 (1987).

Obvious mistake in naming another person as the movant in the body of the demand could not have misled the state's attorney since the defendant was correctly identified as the defendant in the style of the pleading, and the citation numbers referencing the charges against the defendant were correctly set forth therein. Verscharen v. State, 188 Ga. App. 746, 374 S.E.2d 349 (1988).

- Defendant was not entitled to a motion for discharge and acquittal on speedy trial grounds when the prosecution rebutted prima facie evidence of the certificate of service as strict compliance with O.C.G.A. § 17-7-170 was a prerequisite for relief. Leimbach v. State, 251 Ga. App. 589, 554 S.E.2d 771 (2001).

- Trial court's finding that the state's attorney was not served with the defendant's demand for trial is supported by an absence of certificates of service showing that the state's attorney had been served with the defendant's demand for trial and by the state's attorney's statement that neither the state attorney nor the district attorney's office had been served with the defendant's demand for trial. Under these circumstances, the trial court did not err in denying the defendant's plea of autrefois acquit. Johnson v. State, 203 Ga. App. 896, 418 S.E.2d 155 (1992).

Trial court properly denied a pre-indictment motion for discharge and acquittal pursuant to O.C.G.A. § 17-7-170 after the defendant filed the waiver of formal indictment and demand for trial without serving a copy upon the prosecutor or the trial judge. Webb v. State, 278 Ga. App. 9, 627 S.E.2d 925 (2006).

- Trial court properly denied the defendant's motion autrefois convict in a rape case under O.C.G.A. § 16-6-1; the defendant did not substantially comply with the O.C.G.A. § 17-7-170 requirements for filing a speedy trial demand on sexual battery charges that were pending before the instant rape charge was filed because the defendant failed to file the demand on the trial judge and thus no speedy trial demand was made. Baker v. State, 270 Ga. App. 762, 608 S.E.2d 38 (2004).

Trial court erred in denying the defendant's motions for discharge and acquittal pursuant to the defendant's statutory right to a speedy trial because, despite the defendant's assertions to the contrary, the defendant did not show that the defendant properly served the trial court judge with the motion for speedy trial as, on the motion's face, there was nothing in the certificate of service that showed that the defendant properly served the trial court judge as required by O.C.G.A. § 17-7-170. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).

Defendant failed to perfect service of defendant's demand for trial on either the official charged with prosecuting offenses in the recorder's court (where the demand was filed) or the official responsible for prosecuting offenses in the superior court (where the case had been transferred prior to the defendant's filing a demand for trial); there was no error in denying the defendant's plea of autrefois acquit based on the defendant's failure to serve the appropriate official with a copy of the defendant's demand. Vondolteren v. State, 184 Ga. App. 344, 361 S.E.2d 833, cert. denied, 184 Ga. App. 911, 361 S.E.2d 833 (1987).

- If at a term when a demand for trial is operative, a trial is had resulting in a verdict of guilty, and a new trial is thereafter granted, the defendant is not required to again demand a trial since the state is already on notice of the demand, and if two regular terms go by in which juries are impaneled and qualified, and the defendant is not tried, the defendant shall be absolutely discharged and acquitted of the offense in which a demand for trial has been made. Dennis v. Grimes, 216 Ga. 671, 118 S.E.2d 923 (1961).

- When a demand for trial is filed and a new trial is granted as to one charge upon the remittitur of the Supreme Court being made the order of the lower court, this section being tolled during the period as to that charge, nevertheless, the demand for trial as to the other charge requires a trial at the next succeeding regular term thereafter, provided at both terms there were juries impaneled and qualified to try the accused, or the petitioner would be entitled to discharge and acquittal of the latter offense. Dennis v. Grimes, 216 Ga. 671, 118 S.E.2d 923 (1961).

Forfeiture of bond for nonappearance is no bar to demanding trial provided there is a jury qualified to try the cause when the demand is made. Hall v. State, 21 Ga. 148 (1857).

- Entry of a nolle prosequi without the accused's consent would not affect the accused's rights. The demand would stand over to be complied with at the next term. Brown v. State, 85 Ga. 713, 11 S.E. 831 (1890).

If compliance with the notice requirement of Rule 31.2, Uniform Superior Court Rules, would cause the state to violate defendant's right to a speedy trial, a trial court does not abuse the court's discretion in proceeding to trial in accordance with the defendant's speedy trial demand. Kellibrew v. State, 239 Ga. App. 783, 521 S.E.2d 921 (1999).

- Trial court did not abuse the court's discretion by denying the defendant's motion to sever the offenses charged in the indictment because all but one of the charged offenses occurred within a five-week period, the offenses took place at the same location, three of the offenses shared common witnesses, and since the jury acquitted the defendant of aggravated battery, aggravated assault, and battery, it was clear that the jury was able to distinguish the evidence and apply the law intelligently as to each offense. Rossell v. State, 341 Ga. App. 356, 799 S.E.2d 34 (2017).

Function of placing the demand on the minutes is to give notice to the state that the time in which trial must be had is running. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144 (1970).

- It is the duty of the trial court, upon notice, to allow the demand to be placed on the minutes of the court. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

- Fact that a demand for trial is not actually entered by the clerk upon the minutes of the court may not affect the defendant's statutory right to speedy trial. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

- If the demand is filed in the office of the clerk of the superior court, prior to the adjournment of that court, it is immaterial that such demand was not actually entered by the clerk upon the minutes of the court. Bryning v. State, 86 Ga. App. 35, 70 S.E.2d 779 (1952).

- If all other requisites of this section had been met and the omission of the demands from the minutes is the fault of the clerk of court and not of the defendants or defendants' counsel, such omission does not defeat the special plea in bar. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

- If as a matter of fact the minutes fail to speak the truth in that the minutes do not show the demand, the court has the power to correct the minutes and eliminate the omission so that the court's own records conform to the truth. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

- It serves no purpose to record a demand in the usual fashion when permission to make the demand has not been granted. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144 (1970).

- If jury demand be made, it is the right of the accused to have the demand spread upon the minutes and the duty of the clerk to do it. Pless v. State, 157 Ga. App. 681, 278 S.E.2d 475 (1981); Lusher v. State, 192 Ga. App. 606, 386 S.E.2d 364 (1989); Larouche v. State, 192 Ga. App. 610, 386 S.E.2d 367 (1989).

Qualified Jury

"Qualified" defined.

- Word "qualified" as used in this section related to the general qualification of the panels, rather than to the particular qualification of an individual juror appearing thereon. If the panel is a qualified panel, or if the array is not subject to challenge, the defendant should be tried upon the defendant's demand, or discharged. If necessary, the court may cause the panels to be filled in the event any of the jurors disqualify or are otherwise put off for cause. Campbell v. State, 6 Ga. App. 539, 65 S.E. 307 (1909).

- O.C.G.A. § 17-7-170 only requires that during the court terms there be juries impaneled and qualified to try a defendant; the statute does not require such a jury the moment appellant files a demand for trial. Lusher v. State, 192 Ga. App. 606, 386 S.E.2d 364 (1989); Larouche v. State, 192 Ga. App. 610, 386 S.E.2d 367 (1989).

Jurors impaneled in county superior court were qualified to try the defendant in the state court of the county and, thus, the defendant was entitled to discharge and acquittal when the defendant was not tried during the term in which the defendant's demand for trial was made. Scott v. State, 206 Ga. App. 17, 424 S.E.2d 325 (1992).

When jurors were summoned for a special civil trial session of the July 1993 term of court, and the defendant filed a demand for trial during that term, at a time when the jurors were impaneled and qualified, the fact that the state's attorney did not wish to work the jurors impaneled did not warrant the trial court's conclusion that the time for the defendant's demand did not begin to run until the next (October) term of the court and that the demand would not trigger a bar to prosecution until the expiration of the January 1994 term. McKnight v. State, 215 Ga. App. 899, 453 S.E.2d 38 (1994).

For purposes of a state court prosecution, a term in which superior court jurors were impaneled did not apply to a speedy trial determination because the jurors were not qualified to serve as state court jurors since the summons sent to the jurors referred only to the superior court. George v. State, 229 Ga. App. 632, 494 S.E.2d 526, aff'd, 269 Ga. 863, 505 S.E.2d 743 (1998).

If there is a demand for a speedy trial in a state court case in a term for which no state court jurors are impaneled, a jury impaneled by a superior court may serve in state court if the conditions of O.C.G.A. § 15-12-130 are met. George v. State, 269 Ga. 863, 505 S.E.2d 743 (1998).

If no jury is impaneled and qualified to try a person when the demand is filed, the time designated in O.C.G.A. § 17-7-170 does not begin to run until the term at which jurors are impaneled and qualified to try the person. Kersey v. State, 191 Ga. App. 847, 383 S.E.2d 348 (1989).

- Court of appeals erred in holding that the term in which the defendant filed a speedy trial demand did not count for purposes of determining entitlement to discharge and acquittal. The court of appeals erred in finding there were only five jurors available as the remaining 32 who appeared were either serving on other trials or had been committed for other trials; O.C.G.A. § 17-7-170 did not require the court to examine how many jurors were serving on other trials or committed to other trials. Williamson v. State, 295 Ga. 185, 758 S.E.2d 790 (2014).

Demand

Purpose of demand.

- Purpose of entry of demand is to notify the state of the defendant's intention to proceed to a trial, or be discharged at a subsequent term. Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902).

- As O.C.G.A. § 15-7-43(b), enacted in 1983, incorporates the speedy trial provisions of O.C.G.A. § 17-7-170 by reference, those provisions supersede a 1981 local law provision entitling a defendant in a state court to discharge and acquittal if no trial is had at the term when the demand is made or within the next two succeeding regular terms thereafter. Majia v. State, 174 Ga. App. 432, 330 S.E.2d 171, aff'd, 254 Ga. 660, 333 S.E.2d 834 (1985); Parks v. State, 239 Ga. App. 333, 521 S.E.2d 370 (1999).

As between O.C.G.A. § 17-7-170 and the Act establishing the State Court of Gwinnett County, Ga. L. 1977, p. 3331, as amended by Ga. L. 1981, pp. 3033, 3034, O.C.G.A. § 17-7-170 controls and governs the practice in the State Court of Gwinnett County. Hensler v. State, 174 Ga. App. 609, 332 S.E.2d 45, aff'd, 254 Ga. 660, 333 S.E.2d 834 (1985); Dean v. State, 177 Ga. App. 678, 340 S.E.2d 647 (1986).

- Implicit in the wording of O.C.G.A. § 17-7-170 is that the demand is applicable only in courts which have terms and impanel juries. Ramsey v. State, 189 Ga. App. 91, 375 S.E.2d 63 (1988).

Demand for trial would be effective to invoke the statutory sanction of mandatory acquittal only if filed in a court of record having both regular terms and the authority to impanel juries. Cliatt v. State, 194 Ga. App. 110, 389 S.E.2d 568 (1989).

Demand must be made in the court when the case is pending. Hunley v. State, 105 Ga. 636, 31 S.E. 543 (1898).

Defendant failed to file a demand for speedy trial in the superior court as required by O.C.G.A. § 17-7-170 when, although the defendant filed a demand in the probate court where the charges were filed, the defendant failed to file a new demand in the superior court after the charges were transferred pursuant to the defendant's request for transfer. Conley v. State, 267 Ga. App. 185, 598 S.E.2d 897 (2004).

- Ex parte order which enters a demand for trial and which recites that such demand truly made at a time that a traverse jury was impaneled and qualified to try the case is not conclusive upon the trial court when entered. State v. McDonald, 242 Ga. 487, 249 S.E.2d 212 (1978).

Defendant cannot claim the benefits of this section if the defendant made no demand for trial. Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976).

- O.C.G.A. § 17-7-170 does not require the physical presence of a defendant in the trial court in order to pursue a demand for trial. The statute is satisfied if a defendant is available for trial, whether physically present in court or not. State v. Collins, 201 Ga. App. 500, 411 S.E.2d 546 (1991).

- Fact that the defendant was unable to appear due to involuntary extradition to another state did not alleviate the requirement that the defendant be present and announce ready for trial. Bashlor v. State, 165 Ga. App. 329, 299 S.E.2d 418 (1983).

- Although the defendant's demand was filed in a municipal court, and a copy of the demand was sent to the state court prosecutor, the demand was ineffective as to the state court because the demand was "binding only in the court in which the demand is filed." Adams v. State, 189 Ga. App. 345, 375 S.E.2d 642 (1988).

Demand follows the indictment to whatever court the case may be transferred. Castleberry v. State, 11 Ga. App. 757, 76 S.E. 74 (1912).

It is immaterial that the court to which the indictment is transferred is without authority to try the accused. Brock v. Slaton, 18 Ga. App. 175, 89 S.E. 156 (1916).

- Demand for trial is deemed to be transferred along with the case when the case is transferred from one court to another, and, therefore, the defendant was entitled to an acquittal when the demand was not included in the materials forwarded to the other court and the case was not tried within two terms after the filing of the demand. Turner v. State, 188 Ga. App. 267, 372 S.E.2d 826 (1988).

Defendant's demand for a speedy trial was binding in superior court after the defendant's case was transferred to the superior court, even though the superior court did not receive the motion until after July 1, 1987, the effective date of the amendment to O.C.G.A. § 17-7-170 providing that a demand for a speedy trial is binding only in the court in which it is filed, when the defendant filed the demand prior to the effective date of the amendment. O'Neal v. State, 188 Ga. App. 270, 372 S.E.2d 833 (1988).

Since a Uniform Traffic Citation accusation expired when the defendant's case was transferred to the superior court for indictment and trial, and the defendant's demand for speedy trial was made only as to the indictment, the demand did not transfer to the state court as a demand for trial on an accusation filed after the indictment had been dismissed. Ramsey v. State, 189 Ga. App. 91, 375 S.E.2d 63 (1988).

Defendant who did not make a demand in a court which could not give the defendant a trial in accordance with O.C.G.A. § 17-7-170 is not precluded from making a demand for trial after being bound over to the jurisdiction of another court after a new accusation is filed and the defendant makes a demand at that term or the next regular term. Marks v. State, 192 Ga. App. 106, 384 S.E.2d 186, cert. denied, 192 Ga. App. 902, 384 S.E.2d 186 (1989).

Defendant, charged with a traffic violation, filed a demand for trial in the recorder's court but not in the state court after the case was transferred, but that demand for trial was ineffective to invoke the sanction of discharge and acquittal under O.C.G.A. § 17-7-170, and the trial court properly denied the defendant's motion for discharge and acquittal. Cliatt v. State, 194 Ga. App. 110, 389 S.E.2d 568 (1989), cert. denied, 194 Ga. App. 911, 389 S.E.2d 568 (1990).

Trial court did not err in denying the defendant's plea in bar as the defendant's demand for a speedy trial applied only to the prosecution against the defendant on misdemeanor traffic charges in the probate court when the defendant made the demand; since the defendant expressly waived the right to a speedy trial when the defendant requested that the defendant's case be transferred to the superior court, the defendant's speedy trial rights were not violated. Bishop v. State, 261 Ga. App. 445, 582 S.E.2d 571 (2003).

- Demand for speedy trial as to an accusation under O.C.G.A. § 17-7-170 will not be inferred unless a demand is specifically made. Ramsey v. State, 189 Ga. App. 91, 375 S.E.2d 63 (1988).

- Demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of O.C.G.A. § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for a speedy trial. Kevinezz v. State, 207 Ga. App. 456, 428 S.E.2d 366 (1993).

- Statutory language referring to "a true bill of indictment or an accusation" applies to an accusation only in those cases in which no indictment is necessary, either because of the nature of the offense or a defendant's written waiver of indictment. Groom v. State, 212 Ga. App. 133, 441 S.E.2d 259 (1994).

- If the demand was entered and allowed, the accused was entitled to all the rights of this section, regardless of the term at which the demand was entered. Dublin v. State, 126 Ga. 580, 55 S.E. 487 (1906).

- Trial court erred in denying the defendant's motion to dismiss an indictment on the ground that the state violated the defendant's right to a speedy trial under the Sixth Amendment because the trial court failed to consider the facts showing that the defendant was out on bond and without counsel during the 42-month period between the defendant's arrest and indictment; the defendant was not entitled to file a statutory demand for a speedy trial pursuant to O.C.G.A. § 17-7-170 during the 42 months following the arrest but prior to the indictment, and the filing of a demand after the indictment was not a prerequisite for asserting a violation of the constitutional right to a speedy trial. Goffaux v. State, 313 Ga. App. 428, 721 S.E.2d 635 (2011).

In order to trigger this section, the defendant must make a demand at a time that a traverse jury is impaneled and qualified to try the defendant. State v. McDonald, 242 Ga. 487, 249 S.E.2d 212 (1978).

Demand for trial must be made at a regular term of court at which there was a jury impaneled and qualified to try the defendant, and while no order of the court may be necessary if it was filed during the term at which the defendant was indicted, this section expressly requires permission of the court if the demand was made at a regular term subsequent to the term of indictment and the first term thereafter. Hatfield v. State, 139 Ga. App. 535, 228 S.E.2d 720 (1976).

In order to invoke the provisions of this section, the defendant must move for an immediate trial, the trial court must accept the demand, and note the demand on the minutes of the court. The movant must also be in attendance or available at the court in which the movant demands trial. There is no inherent authority in a court of this state to compel a defendant's in-court attendance when such defendant is incarcerated outside this state pursuant to a sentence imposed by a different sovereign. Hunt v. State, 147 Ga. App. 787, 250 S.E.2d 517 (1978).

- Because a criminal defendant made a demand for a jury trial on January 31, the last day of the November term of court, when there were no juries available for service, the trial court did not err in denying the defendant's plea in bar filed in the May term. Kirk v. State, 194 Ga. App. 801, 392 S.E.2d 249 (1990).

Demand for trial need not be presented to the trial judge and approved by the judge. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

Approval of the trial judge was not required under this section when the demand is made at the term at which the indictment is returned or the next succeeding regular term thereafter. Nor was it necessary to present the demand to the judge rather than to the clerk of court in order to apprise the court of the demand's existence. Dickerson v. State, 108 Ga. App. 548, 134 S.E.2d 51 (1963).

- See Turner v. State, 136 Ga. App. 42, 220 S.E.2d 57 (1975).

Demand for trial need not be presented to the judge rather than to the clerk of court. Dickerson v. State, 108 Ga. App. 548, 134 S.E.2d 51 (1963).

- Every person against whom a bill of indictment is found shall be tried at the term of court at which the indictment is found, unless the absence of a material witness or the principles of justice require a postponement of the trial, in which event the court shall allow a postponement until the next term. In keeping with this policy, this section provided that an accused person may demand such trial. Harris v. State, 84 Ga. App. 1, 65 S.E.2d 267 (1951).

Defendant does not have to wait a term before making a demand for trial but may make the demand at the term at which the indictment was returned. Harris v. State, 84 Ga. App. 1, 65 S.E.2d 267 (1951).

- Demand for trial will not be sufficient to invoke the extreme sanction of O.C.G.A. § 17-7-170 unless the demand is presented for what it is - a demand to be tried within the next succeeding term of court. Smith v. State, 166 Ga. App. 352, 304 S.E.2d 476 (1983).

If a defendant fails to make a demand for trial at the term at which the indictment was returned, or at the next term and did not obtain the permission of the court to make an out-of-time demand, the defendant's claims under O.C.G.A. § 17-7-170 are without merit. Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985); Ramsey v. State, 183 Ga. App. 48, 357 S.E.2d 869, cert. denied, 183 Ga. App. 906, 357 S.E.2d 869 (1987).

- If the defendant applies for a speedy trial under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) but cannot procedurally seek a speedy trial under that section because the defendant is not physically present or within the subpoena power of the Georgia courts, the defendant's right to a speedy trial must be determined under the Interstate Agreement of Detainers, Art. 2, Ch. 6, T. 42, if that statute was utilized to secure the defendant's trial. Johnson v. State, 154 Ga. App. 512, 268 S.E.2d 782 (1980).

Demand for jury trial was a demand for trial sufficient to invoke this section. Wallis v. State, 154 Ga. App. 764, 270 S.E.2d 45 (1980).

- Motion to require that the defendant have an opportunity to select a fairly constituted traverse jury was not a demand for trial operating to invoke this section. Bennett v. State, 153 Ga. App. 21, 264 S.E.2d 516 (1980).

Notice sent to the Board of Offender Rehabilitation requesting a final disposition of an escape charge does not have the same effect as a demand for trial. Halm v. State, 125 Ga. App. 618, 188 S.E.2d 434 (1972).

Demand may be made by one of two persons jointly indicted after one has secured a severance. Winkle v. State, 20 Ga. 666 (1856).

- When a convicted defendant who filed a demand for speedy trial successfully takes action to negate the determination of guilt and secures a new trial, the demand will stand over to be complied with at the next term. Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981).

Demand for trial may be waived by counsel. Hogan v. State, 193 Ga. App. 543, 388 S.E.2d 532 (1989).

Defendant did not waive a demand for trial by a letter from defense counsel to the solicitor advising the defendant that it "would not be necessary to hear the motions" in the defendant's case since a demand for trial is not a motion and therefore was not the subject of the letter. Larouche v. State, 192 Ga. App. 610, 386 S.E.2d 367 (1989).

- Defendants' filing of pretrial motions did not constitute a consent or other affirmative act amounting to waiver of a demand for trial in the next succeeding term of court. Peek v. State, 189 Ga. App. 584, 377 S.E.2d 8 (1988), aff'd sub nom. Parks v. Norred & Assocs., 206 Ga. App. 494, 426 S.E.2d 12 (1992).

- In order to invoke the provisions of O.C.G.A. § 17-7-170, a defendant must make a demand for trial. The court's order, requiring that the sheriff or the sheiff's deputy "pick up . . . defendant and bring him before [the] Court for the disposition of his case as soon as possible," neither indicated that it was entered pursuant to a demand for trial made by the defendant, nor was the order sufficient to invoke the extreme sanction of that Code section. Coggins v. State, 188 Ga. App. 455, 373 S.E.2d 269 (1988).

If there is no jury impaneled and qualified at the time the demand is made, the demand is not good for that term. State v. McDonald, 146 Ga. App. 83, 245 S.E.2d 446, rev'd on other grounds, 242 Ga. 487, 249 S.E.2d 212 (1978).

Since the defendant filed a demand for a speedy trial during a term in which no jurors were impaneled, the term did not count in computing the two-term requirement under O.C.G.A. § 17-7-170(a). Spencer v. State, 259 Ga. App. 664, 577 S.E.2d 817 (2003).

Because jurors were dismissed and not subject to recall, the jurors were not empanelled for service when the defendant made the defendant's demand for speedy trial; thus, the term in which the demand was filed did not count for computation of the two-term requirement. Johnson v. State, 264 Ga. App. 195, 590 S.E.2d 145 (2003).

- Because, at the time the defendants filed the defendants' pro se demand for discharge pursuant to O.C.G.A. § 17-7-170, the defendants were represented by counsel, the trial court was clearly authorized to find that this pro se demand was of no legal effect. Goodwin v. State, 202 Ga. App. 655, 415 S.E.2d 472 (1992); Maddox v. State, 218 Ga. App. 320, 461 S.E.2d 286 (1995).

Since the defendant was represented by counsel when the defendant filed a pro se demand for speedy trial, that demand was of no legal effect whatsoever. Daniels v. State, 235 Ga. App. 296, 509 S.E.2d 368 (1998).

Defendant's demand for speedy trial was filed pro se while the defendant was represented by counsel, and because such demand was filed before the indictment was returned against the defendant, the defendant's demand had no legal effect. Brown v. State, 264 Ga. App. 9, 589 S.E.2d 830 (2003), cert. denied, 543 U.S. 831, 125 S. Ct. 172, 160 L. Ed. 2d 48 (2004).

- Only duty imposed on the defendant being that the defendant be not voluntarily absent from the court, and that the defendant shall have done no other act which in law would amount to a waiver of the defendant's demand. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912).

- Because the defendant filed a single demand which was specifically captioned and written as a "Demand For Speedy Trial By Jury Under OCGA § 17-7-170", the defendant's subsequent "Withdrawal of Jury Demand", without more, served to withdraw the defendant's single, previously filed demand in the demand's entirety. Price v. State, 245 Ga. App. 128, 535 S.E.2d 766 (2000).

Waiver

Silence at second term and failure to bring demand to court's attention not waiver.

- Accused may waive the right under this section, but mere silence at the second term and failure to bring the demand to the court's attention will not amount to a waiver. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912).

Allowing jury to be discharged is not waiver. Dacey v. State, 15 Ga. 286 (1854).

Absence when the case is called constitutes waiver. Moreland v. State, 51 Ga. 192 (1874); Odom v. State, 25 Ga. App. 746, 105 S.E. 54 (1920).

Voluntary absence from court constituted a waiver by the accused of rights under this section. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912).

Voluntary absence from the court amounts to a waiver of the demand for trial and the defendant is not entitled to discharge and acquittal. Daniels v. State, 199 Ga. App. 400, 405 S.E.2d 88, cert. denied, 199 Ga. App. 905, 405 S.E.2d 88 (1991); State v. Collins, 201 Ga. App. 500, 411 S.E.2d 546 (1991).

- Absence of the defendant and, by extension, the defendant's counsel from a calendar call is not, per se, sufficient grounds to find waiver of the trial demand. McKnight v. State, 215 Ga. App. 899, 453 S.E.2d 38 (1994).

No waiver of the defendant's demand for a speedy trial occurred as a result of defense counsel's absence from the courtroom when the case was called for trial because under the facts in the case defense counsel justifiably believed counsel was "on call." State v. McKnight, 265 Ga. 701, 462 S.E.2d 142 (1995).

- If defense counsel failed to appear at a calendar call, failed to file a conflict letter, and failed to contact the court when a conflicting trial ended (in accordance with Ga. Unif. Super. Ct. R. 17.1(C)), counsel's actions amounted to a waiver of the defendant's O.C.G.A. § 17-7-170 speedy trial demand. Oni v. State, 268 Ga. App. 840, 602 S.E.2d 859 (2004).

Speedy trial demand in a non-capital case did not impose a requirement to announce a readiness for trial; rather, a request for a continuance outside the term of the demand waived the speedy trial demand. Dingler v. State, 281 Ga. App. 721, 637 S.E.2d 120 (2006).

When the court previously found that a defendant waived the defendant's statutory speedy trial claim, the defendant could not relitigate the issue in a subsequent appeal despite a delay following remittitur. Oni v. State, 285 Ga. App. 342, 646 S.E.2d 312 (2007).

- Despite attempts by the defendant to reserve the right prior to a plea, the defendant waived the right to assert on appeal that the state failed to comply with the speedy trial requirement of O.C.G.A. § 17-7-170(b) by a guilty plea. Hewell v. State, 277 Ga. App. 265, 626 S.E.2d 237 (2006).

- While the burden was on the defendant to protect the defendant's statutory rights to a speedy trial by making a timely demand for trial under this section, the defendant's failure to do so did not, of itself, work a waiver of rights under U.S. Const., amend. 6. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974).

While there is a burden on a defendant to protect the defendant's right to a speedy trial, failure to make a demand does not amount to a waiver of rights under U.S. Const., amend. 6. Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979).

Defendant's right to a speedy trial was not violated because the defendant did not file a statutory demand for speedy trial under O.C.G.A. § 17-7-170 and the delay was partially attributable to the defendant. Manning v. State, 250 Ga. App. 187, 550 S.E.2d 762 (2001).

Trial court erred in dismissing the defendant's demand for a speedy trial on the state's motion to dismiss; although the defendant was required to obtain special permission of the court to file such a demand for trial because the defendant had not entered such a demand during the court term in which the indictment was filed or at the next succeeding regular term of court, the record showed that the trial court essentially granted permission by instructing the defendant at a bond revocation hearing to file such a demand. Prather v. State, 261 Ga. App. 506, 583 S.E.2d 191 (2003).

- Defendant's action in moving for a continuance until scientific test results were forthcoming, when the state failed to produce scientific test results the state had informed the trial court would be ready on the day of trial, did not constitute a waiver of the defendant's rights under O.C.G.A. § 17-7-170. Weidlund v. State, 191 Ga. App. 668, 382 S.E.2d 709 (1989).

- Although a defendant's attorney agreed to a continuance in early December 2004, there was no evidence that the attorney agreed to continue the case past that term of court which, pursuant to O.C.G.A. § 15-5-3, did not end until February 2005, and in which the case could have been tried and was required to be tried following the defendant's speedy trial demand under O.C.G.A. § 17-7-170 in the prior court term. Thornton v. State, 301 Ga. App. 784, 689 S.E.2d 361 (2009).

- Defendant's O.C.G.A. § 17-7-170 speedy trial claim was properly denied because the defendant's motions to quash the indictments were affirmative actions which forced the state to reindict, the defendant failed to support, with evidence the assertion that there were jurors ready to hear trials toward the end of the term of court, and, finally, after the third indictment, the defendant requested to be tried within the current or following term, which included the August term during which the defendant filed the motion that led to the appeal; defendant's latest request for a speedy trial afforded no ground for relief at that time. Tyner v. State, 298 Ga. App. 42, 679 S.E.2d 82 (2009).

- Defendant's numerous requested continuances and leaves of absence, and the defendant's consenting to a notice resetting the case over to the next court term, waived the defendant's speedy trial demand and right to automatic discharge. Jones v. State, 250 Ga. App. 829, 553 S.E.2d 24 (2001), aff'd, 276 Ga. 171, 575 S.E.2d (2003).

By challenging the jury pool, defendant waives the right to a jury trial during that term and to use that term in the computation of terms under O.C.G.A. § 17-7-170 (b). Wilson v. State, 181 Ga. App. 337, 352 S.E.2d 189 (1986).

Waiver of demand for speedy trial would result from continuance granted on motion of accused, or from any other act on the accused's part showing affirmatively that the accused consented to passing the case until a subsequent term. Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981).

Requesting a continuance is not the only way to waive a demand for trial since any affirmative action of the defendant which results in a continuance or a failure to try the case within the time fixed by statute after the filing of the demand has the effect of tolling the time. Sykes v. State, 236 Ga. App. 518, 511 S.E.2d 566 (1999).

Defendant waived the right to a speedy trial under O.C.G.A. § 17-7-170 as the defendant repeatedly acknowledged that the defendant's motion for a continuance would constitute a waiver of the defendant's right to an automatic discharge and acquittal. Furthermore, there was no evidence that the state intended to manipulate the trial calendar by re-indicting the defendant; although the new indictment required proof of a new element, the defendant was given two weeks' notice of the state's intent to present the new indictment to the grand jury, and it was the defendant who requested a continuance on the last date in which it was possible to try the case in accordance with the defendant's speedy trial demand. Trimm v. State, 297 Ga. App. 861, 678 S.E.2d 567 (2009).

- Although timely demand for jury trial is sufficient to trigger O.C.G.A. § 17-7-170, the defendant waives the right to rely upon that demand by filing a subsequent formal demand for trial during the succeeding term or the following term and thus the defendant, in effect, consented to extending the defendant's demand for trial. Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981).

- Conduct of the defendant and defense counsel of demanding and proceeding to trial, not consenting to a substitute judge, and objecting to a recess of the case in addition to requesting a mistrial, realizing that such action would pass the case into the next term, amounted to conduct to avoid trial and affirmatively waived the demand. Cates v. State, 226 Ga. App. 519, 486 S.E.2d 654 (1997).

Because defense counsel did not comply with Ga. Unif. Super. Ct. R. 16.2 governing a leave of absence, counsel's failure to appear at trial acted as a waiver of the defendant's speedy trial rights. Linkous v. State, 254 Ga. App. 43, 561 S.E.2d 128 (2002), aff'd, sub nom. Jones v. State, 276 Ga. 171, 575 S.E.2d 456 (2003).

In an action in which the defendant filed a demand for a speedy trial pursuant to O.C.G.A. § 17-7-170(a), but the defendant's counsel later consented to the continuance of the case beyond the time when trial was to be held, the defendant was deemed to have waived the right to automatic discharge. Cobb v. State, 275 Ga. App. 554, 621 S.E.2d 548 (2005).

Trial court did not err in denying the defendant's pro se demand for a speedy trial on the ground that the defendant was represented by counsel when the defendant filed the motion because the defendant was represented by a public defender when the defendant filed the pro se demand; at the bond hearing, the defendant's attorney stated that the attorney spoke with the defendant and that they were not adopting the pro se speedy trial demand filed previously, which operated as a waiver of the defendant's right to an automatic discharge under O.C.G.A. § 17-7-170, and once the case was tried, the defendant's demand for a speedy trial expired. Works v. State, 301 Ga. App. 108, 686 S.E.2d 863 (2009), cert. denied, No. S10C0458, 2010 Ga. LEXIS 251 (Ga. 2010).

State carried the state's burden of demonstrating that the defendant waived the demand for a speedy trial because trial counsel announced that the demand for speedy trial was withdrawn, and counsel made the announcement only after consulting the defendant; counsel also announced that the defendant was making a joint motion with the state for a continuance. Twiggs v. State, 315 Ga. App. 191, 726 S.E.2d 680 (2012).

- When a pro se defendant moved to dismiss the indictment for lack of a speedy trial, but the record contained no evidence that the defendant filed a demand for speedy trial under O.C.G.A. § 17-7-170, the issue could not be considered by the appellate court. Owens v. State, 258 Ga. App. 647, 575 S.E.2d 14 (2002).

In a criminal case when defense counsel requested leave exceeding a total of 30 days but was never granted such leave by the trial court under Ga. Unif. St. Ct. R. 16.2, no valid leave of absence was in place and defense counsel effectively waived the defendant's speedy trial demand under O.C.G.A. § 17-7-170 by being absent, without excuse, on the only days left in the term when the defendant could have been tried. Jones v. State, 276 Ga. 171, 575 S.E.2d 456 (2003).

- Waiver of a demand for a trial in accordance with O.C.G.A. § 17-7-170 does not result from an agreement by the defendant to postpone the trial to a time within the term of the demand; for waiver to occur, the agreement must be to postpone to a time outside the term of demand. State v. McNeil, 176 Ga. App. 323, 335 S.E.2d 728 (1985).

- State has the burden of showing that the defendant or defense counsel took such affirmative action resulting in a waiver of the requirements of O.C.G.A. § 17-7-170. State v. Grant, 217 Ga. App. 358, 457 S.E.2d 263 (1995).

Defendant made a timely demand for trial and was convicted following the erroneous denial of the defendant's motion for a continuance, and such conviction was reversed and the case remitted for new trial, the motion for a continuance and appeal did not constitute an affirmative action by the defendant resulting in delay and a waiver of the defendant's original demand and the defendant was entitled to a retrial within the two-term limits of O.C.G.A. § 17-7-170. State v. Grant, 217 Ga. App. 358, 457 S.E.2d 263 (1995).

- Trial court erred in denying the defendant's motion for discharge and acquittal on statutory speedy trial grounds because the state failed to establish a waiver based upon the fact that the defendant's counsel had filed several notice of conflict letters pursuant to Ga. Unif. Super. Ct. R. 17.1; the conflict letters were filed after the two terms of court had expired and were not relevant to the waiver issue. Gifford v. State, 301 Ga. App. 50, 686 S.E.2d 831 (2009).

Impact of Motions for Mistrials

Effect of mistrial or grant of new trial.

- If there is a mistrial in the case, or if the accused is convicted and a new trial granted, the accused will not lose the accused's rights under the demand, but the accused will be entitled to a trial or discharge at the next succeeding term. Gordon v. State, 106 Ga. 121, 32 S.E. 32 (1898); Dublin v. State, 126 Ga. 580, 55 S.E. 487 (1906).

- Mistrial based on the jury's inability to reach a verdict does not satisfy the speedy trial requirements, at least if the defendant could have been retried before the expiration of the term. Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976).

- Defendant's motion for mistrial did not constitute an affirmative waiver of the defendant's statutory demand for a speedy trial. State v. Allen, 165 Ga. App. 86, 299 S.E.2d 158 (1983).

Mistrial was not a trial within the meaning of this section, and a defendant was accordingly entitled to be again tried during the term or released at the term's end. Rider v. State, 103 Ga. App. 184, 118 S.E.2d 749 (1961).

Trial court abused the court's discretion in declaring a mistrial and abridging the defendant's constitutional right to be tried by the originally impaneled jury without first considering less drastic alternatives when the assigned courtroom was unavailable at the appointed time. The procedure the court used was flawed, not the result. A trial court is not categorically required to grant a continuance under similar circumstances; merely the court should consider a continuance as an alternative to declaring a mistrial. Since the trial court told defense counsel that if the defendant did not plead guilty, the court would declare a mistrial, the court took little or no heed to the defendant's constitutional rights thereby constituting an abuse of discretion. McGee v. State, 287 Ga. App. 839, 652 S.E.2d 822 (2007).

Accused need not take any steps to bring the case to trial again after mistrial; it is only requisite that the accused remain in attendance before the court. Thornton v. State, 7 Ga. App. 752, 67 S.E. 1055 (1910).

- Under O.C.G.A. § 17-7-170(b), since the defendant's trial ended in a mistrial, the defendant could have been tried at any time during the next term of court, which was the April term; the denial of the defendant's motion to dismiss and the filing of the defendant's notice of appeal were both in the April term and the denial of the defendant's motion was proper because the state complied with O.C.G.A. § 17-7-170. Rivers v. State, 279 Ga. App. 906, 633 S.E.2d 74 (2006).

Discharge and Acquittal

Discharge of defendant generally.

- Upon entry of the demand for trial on the minutes, if the defendant is not tried at the term when the demand is made, or at the next succeeding regular term thereafter, provided, that at both terms there were juries impaneled and qualified to try the defendant, then the defendant is absolutely entitled to be discharged and acquitted of the offense charged in the indictment. Dickerson v. State, 108 Ga. App. 548, 134 S.E.2d 51 (1963).

Defendant who has made a proper demand for a trial is entitled to an automatic discharge without further motion if the defendant is not tried on the second term of court, provided a jury is present at each term who is qualified to try the defendant. Parker v. State, 135 Ga. App. 620, 218 S.E.2d 324 (1975).

This section was explicit in that if the defendant was not tried within two terms after the defendant filed a demand for speedy trial, the defendant must be absolutely acquitted and discharged of the offense. State v. Cox, 140 Ga. App. 30, 230 S.E.2d 87 (1976).

Statutory right is imperative and means that if the state fails to try a defendant eligible for trial as set forth in this section, the prisoner absolutely shall be discharged and acquitted of the offense with which the defendant stands charged. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976).

This section and the cases interpreting it, stand for the proposition that when demand was made and two terms of court expire, at both of which juries are impaneled and qualified to try the defendant, then discharge and acquittal must follow. Bush v. State, 152 Ga. App. 598, 263 S.E.2d 499 (1979).

O.C.G.A. § 17-7-170 provides that the defendant is to be discharged and acquitted if the defendant is not tried during the term the demand is made or the next succeeding term provided that "at both court terms there were juries impaneled and qualified to try him." Whether or not a defendant sought a bench trial when the defendant was arraigned is immaterial. Pursuant to the statute, acquittal depends on the availability of a jury (and, logically, the court sitting without a jury) to try the defendant. Strickland v. State, 192 Ga. App. 613, 386 S.E.2d 165 (1989).

O.C.G.A. § 17-7-170 provides that when a person makes a demand for trial the person is entitled to be discharged and acquitted of the offense charged if the person is not tried during the term in which the person's demand for trial is made or at the next succeeding regular term, and there were juries impaneled and qualified to try the person at each of those terms. Scott v. State, 206 Ga. App. 17, 424 S.E.2d 325 (1992).

In an action in which the trial court in the defendant's criminal matter entered an order of nolle prosequi regarding criminal charges against the defendant, the defendant's motion for discharge and acquittal, based on a claim that the trial court failed to comply with the demand for a speedy trial under O.C.G.A. § 17-7-170, should have still been ruled on; accordingly, it was error to find that the defendant's petition for a writ of mandamus, pursuant to O.C.G.A. § 9-6-20, seeking to have the trial court judge rule on the motion for discharge and acquittal, was rendered moot. Davis v. Wilson, 280 Ga. 29, 622 S.E.2d 325 (2005).

Defendant's motion for discharge and acquittal was properly granted even though a trial judge had been recused on the defendant's own initiative resulting in a delay of the proceedings. State v. Allen, 192 Ga. App. 730, 386 S.E.2d 394 (1989).

Trial court properly granted the defendant's motion for discharge and acquittal of charges against the defendant, upon reconsideration, based on the state's failure to have speedily tried the defendant pursuant to O.C.G.A. § 17-7-170(b); although originally denied, the trial court granted the motion upon submission by the defendant of a jury manager's affidavit that indicated that there were qualified jurors who were impaneled and ready to try the case. State v. Edminson, 265 Ga. App. 91, 593 S.E.2d 18 (2003).

- Defendant was denied the constitutional right to a speedy trial and to due process based on the state's intentional act of trading discovery responses for a speedy trial right, and the resulting prejudice from the disappearance of a material witness. The trial court therefore abused the court's discretion in denying the defendant's motion for discharge and acquittal. Ditman v. State, 301 Ga. App. 187, 687 S.E.2d 155 (2009), cert. denied, No. S10C0539, 2010 Ga. LEXIS 243 (Ga. 2010).

Because a defendant did not waive the defendant's statutory right to a speedy trial on the accusations charging the defendant with fleeing and attempting to elude and reckless driving, and because the state failed to try the defendant during the term in which the demand was filed or the next succeeding regular term of court, pursuant to O.C.G.A. § 17-7-170(b), the defendant was entitled to an acquittal on those charges. Goddard v. State, 310 Ga. App. 2, 712 S.E.2d 528 (2011).

- When two counts of an indictment charged a defendant with crimes arising from the same conduct, and the crimes were known to the prosecutor at the time of commencing the prosecution and were within the jurisdiction of the same court, the defendant's motion for discharge and acquittal of count two was properly denied despite the admitted failure of the state to try the defendant in the time proscribed. State v. Luster, 204 Ga. App. 156, 419 S.E.2d 32, cert. denied, 204 Ga. App. 922, 419 S.E.2d 32 (1992).

- To entitle the defendant to an order of discharge, the defendant must show by the minutes of the court that the defendant has made the demand required by this section. Couch v. State, 28 Ga. 64 (1859).

Discharge is effective whether the order is ever entered on the minutes or not; however, as a matter of form and regularity the discharge should be entered. Thornton v. State, 7 Ga. App. 752, 67 S.E. 1055 (1910).

Acquittal results automatically, by operation of law, after the adjournment of the second term. Thornton v. State, 7 Ga. App. 752, 67 S.E. 1055 (1910); Bishop v. State, 11 Ga. App. 296, 75 S.E. 165 (1912); Smith v. State, 192 Ga. App. 604, 386 S.E.2d 370, cert. denied, 192 Ga. App. 903, 386 S.E.2d 370 (1989).

In an appeal of the trial court's denial of appellant's absolute discharge and acquittal for failure of speedy trial, since the appellant filed a demand for speedy trial on May 20, 1988, and appellant's case was not placed on the first two trial term calendars or on any other calendar, and in September appellant filed a motion for absolute discharge and acquittal under O.C.G.A. § 17-7-170, the trial court erred in denying the appellant's motion since the statute provides that upon proper demand, the defendant shall be acquitted and discharged, if the defendant is not tried when the demand is made or at the next succeeding regular court term thereafter. Birts v. State, 192 Ga. App. 476, 385 S.E.2d 120, cert. denied, 192 Ga. App. 901, 385 S.E.2d 120 (1989).

- Because the filing of a statutory speedy trial demand was not a prerequisite to seeking discharge and acquittal based on a denial of the defendant's constitutional rights to a speedy trial, such could not serve as a valid argument to overturn the trial court's order in granting the defendant a discharge and acquittal on speedy trial grounds. State v. Moore, 289 Ga. App. 99, 656 S.E.2d 156 (2007), cert. denied, No. S08C0808, 2008 Ga. LEXIS 483 (Ga. 2008).

- Although the defendant's demand contained neither a specific reference to O.C.G.A. § 17-7-170 nor a specific request to be tried within the next succeeding term of court, its denomination as a "demand for trial as guaranteed by the law of the State of Georgia . . . filed during the April term of 1984 while jurors are impaneled to try the defendant" provided reasonable reference to that section and was sufficient to invoke the extreme sanction of acquittal. Edwards v. State, 177 Ga. App. 557, 340 S.E.2d 229 (1986).

Defendant, whose case was transferred from the recorder's court to the superior court, was not entitled to acquittal since it was questionable whether the defendant's speedy trial demand had any efficacy at all, in that the demand was filed only in a court which did not have terms or juries, and the demand was not refiled in the court which did have such. Huff v. State, 201 Ga. App. 408, 411 S.E.2d 60, cert. denied, 201 Ga. App. 904, 411 S.E.2d 60 (1991).

Trial court erred by granting the defendant's plea in bar and by granting the defendant's request for acquittal and discharge of aggravated battery and aggravated assault counts based on procedural double jeopardy protections as the defendant was never placed in jeopardy as to those charges, which were brought in a new indictment against the defendant, and the defendant's speedy trial request did not apply to the new indictment since the case had been transferred to the superior court. State v. Jones, 290 Ga. App. 879, 661 S.E.2d 573 (2008).

- Defendant's handwritten request for "speedie [sic] trial of any or all charges Pickens County and/or Jaspe [sic] City would have against me," which request did not identify the charges pending by name, date, term of court, or case number, could not be reasonably construed as sufficient to convey notice of the defendant's intention to invoke the extreme sanction (discharge and acquittal) of O.C.G.A. § 17-7-170. Ferris v. State, 172 Ga. App. 729, 324 S.E.2d 762 (1984).

Inasmuch as the defendant's demand for speedy trial did not identify the charges pending against the defendant, it could not reasonably be construed as sufficient to put the authorities on notice of defendant's intention to invoke the extreme sanction of O.C.G.A. § 17-7-170. Cummins v. State, 202 Ga. App. 155, 413 S.E.2d 773 (1991), cert. denied, 202 Ga. App. 773, 413 S.E.2d 773 (1992).

- Since the defendant successfully moved to suppress evidence, the defendant invoked the entire procedure applicable to that issue including the state's right to a direct appeal, and the statute was tolled for the time required for that procedure to occur. State v. Dymond, 248 Ga. App. 582, 546 S.E.2d 69 (2001).

- Absence of the defendant from the county having jurisdiction to try the defendant does not render the remedy of this section unavailable since the defendant had available the writ of habeas corpus ad deliberandum et recipiendum to compel the production of the defendant's person in the county having jurisdiction for the purpose of trying the defendant on the pending charge. Josey v. State, 102 Ga. App. 707, 117 S.E.2d 641 (1960).

Formal entry of discharge can be made at any time, nunc pro tunc. Collins v. Smith, 7 Ga. App. 653, 67 S.E. 847 (1910).

- Exception to the operation of this section existed when the accused was personally responsible for a delay in bringing the case to trial after the demand had been made. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912).

Trial court did not abuse the court's discretion in denying the defendant's motion for discharge and acquittal after the defendant was brought to trial 14 years beyond the time the defendant was supposed to be tried for DUI - less safe driver, as the delay in bringing the defendant to trial was brought about solely by the defendant failing to appear at the defendant's scheduled trial, of which the defendant was given notice at the time of the defendant's initial arrest. Smith v. State, 260 Ga. App. 403, 579 S.E.2d 829 (2003).

- Since the state brought a direct appeal from the trial court's grant of the defendant's motion for discharge and acquittal pursuant to O.C.G.A. § 17-7-170, and the current version of that Code section required that an accusation be filed with the clerk before an accused may file a demand for trial, without evidence that a uniform traffic citation or a formal accusation was filed in the state court prior to the defendant's demand for trial, the trial court erred in granting the defendant's motion for discharge. State v. Lipsky, 191 Ga. App. 842, 383 S.E.2d 204 (1989).

- Defendant's constitutional right to a speedy trial was violated due to an unexplained four year delay between arrest and the call of case for trial, especially in light of the death of a key defense witness. State v. Allgood, 252 Ga. App. 638, 556 S.E.2d 857 (2001).

Trial court properly granted the defendant's motion for discharge and acquittal which included jury manager's affidavit stating that jurors were summoned during each week in the two previous terms, were available for state and superior courts, and were not released until Thursday evening of each week. State v. Shields, 265 Ga. App. 473, 594 S.E.2d 692 (2004).

Orders of discharge and acquittal of the defendants on the ground that the defendants' statutory rights to a speedy trial had been violated were affirmed because the defendants remaining silent and failing to object was an insufficient affirmative act to waive the defendants statutory demand for a speedy trial under O.C.G.A. § 17-7-170. Georgia precedent clearly establishes that remaining silent and failing to object is an insufficient affirmative act to waive a defendant's statutory demand for a speedy trial. State v. Marshall, 337 Ga. App. 336, 787 S.E.2d 290 (2016).

- Trial judge did not err in refusing to discharge and acquit the defendant of the offenses charged since the demand upon which the defendant relied bore no filing stamp, and the trial court made a specific determination, on the basis of the evidence presented at the dismissal hearing, that the demand had never actually been filed. Head v. State, 189 Ga. App. 111, 375 S.E.2d 46, cert. denied, 189 Ga. App. 912, 375 S.E.2d 46 (1988).

Denial of the defendant's motion for discharge and acquittal predicated on the defendant's failure to obtain special permission for an out-of-time speedy trial demand was proper because the trial court's statements regarding the defendant's options after the defendant waived pending demands did not amount to a grant of permission. Jackson v. State, 231 Ga. App. 187, 498 S.E.2d 780 (1998).

Because the defendant waived the defendant's original demand for a speedy trial and never filed another demand, the defendant had no valid demand on which to rely for a second statutory claim; thus, the defendant was not entitled to have a second motion for discharge and acquittal granted. Oni v. State, 285 Ga. App. 342, 646 S.E.2d 312 (2007).

- When at the term next succeeding that in which trial is demanded the solicitor general (now district attorney) asks that the case be nol prossed, and the court so orders, the defendant, not consenting to that order but insisting on the defendant's demand for trial, is entitled to a discharge. Hurt v. State, 62 Ga. App. 878, 10 S.E.2d 136 (1940).

Entry of a nolle prosse did not prevent the defendant from claiming the benefits of O.C.G.A. § 17-7-170, and since the defendant had been automatically discharged and acquitted by operation of law, the defendant was entitled to a formal acknowledgment of discharge and acquittal. Coker v. State, 181 Ga. App. 559, 353 S.E.2d 56 (1987).

Entry of an order of nolle prosequi in a case does not prevent a defendant as a matter of law from claiming the benefits of O.C.G.A. § 17-7-170. The trial court should entertain the merits of a motion for autrefois acquit based upon O.C.G.A. § 17-7-170(b) and decide the motion as required by O.C.G.A. § 15-6-21(b). A refusal to rule on the merits of the defendant's motion for autrefois acquit on the basis of any intervening nolle prosequi is deemed a final and appealable determination by the court. Ciprotti v. State, 187 Ga. App. 61, 369 S.E.2d 337 (1988); State v. Daniels, 206 Ga. App. 443, 425 S.E.2d 366 (1992).

Defendant who has filed a demand for a speedy trial in one term of court is not automatically acquitted if the indictment is thereafter nolle prosequi in the next succeeding term. It is the state's failure to try a defendant pursuant to the defendant's original demand for a speedy trial, not the subsequent entry of a nolle prosequi, that results in an automatic acquittal. Knight v. State, 197 Ga. App. 250, 398 S.E.2d 202 (1990); State v. Daniels, 206 Ga. App. 443, 425 S.E.2d 366 (1992).

Although the defendant was entitled to discharge and acquittal of charges set forth in a first indictment (subsequently nolle prossed) and repeated in reindictment, the speedy trial demand directed at the first indictment was ineffective as to a new count added by the reindictment. State v. Daniels, 206 Ga. App. 443, 425 S.E.2d 366 (1992).

- Inasmuch as more than two terms of court passed since the defendant filed a demand for trial and juries were impaneled for the purpose of trying criminal cases during each of those terms, the defendant is entitled to a discharge and acquittal because the entry of the nolle prosequi did not prevent the defendant from claiming the benefits of O.C.G.A. § 17-7-170. Bond v. State, 212 Ga. App. 608, 442 S.E.2d 482 (1994).

- When a person filed a motion for discharge and acquittal because of the failure to grant the person's demand for trial under this section, such a motion constituted a plea in bar. State v. Benton, 246 Ga. 132, 269 S.E.2d 470 (1980).

If a person files a motion for discharge and acquittal because of the failure to grant the person's demand for trial, such a motion constitutes a plea in bar which is filed and ruled on before the person is put in jeopardy. State v. Benton, 246 Ga. 132, 269 S.E.2d 470 (1980).

If the offense is the same as that for which trial demanded, though differently designated, the accused may plead a discharge obtained under this section. Holt v. State, 38 Ga. 187 (1868).

Defendant may waive defendant's right to automatic discharge by some action on the defendant's part or on the part of defense counsel, such as defense counsel's own request for a continuance of the case. Parker v. State, 135 Ga. App. 620, 218 S.E.2d 324 (1975).

If the defendant filed and was granted a motion to suppress, and the state exercised the state's right to a direct appeal of the granting of the motion, the defendant, by virtue of having filed the motion, was deemed to have consented to the delay resulting from resolution of the appeal and to have waived the right to automatic discharge that would have otherwise been available as a result of the delay. State v. Waters, 170 Ga. App. 505, 317 S.E.2d 614 (1984).

Defendant was not entitled to discharge and acquittal when the defendant waived a right to be tried before expiration of the court term by requesting a postponement less than two weeks before expiration of the term and then filing a plea of former jeopardy and a request for a hearing on the plea. Jennings v. State, 230 Ga. App. 661, 497 S.E.2d 13 (1998).

Trial court correctly denied the defendant's motion for discharge and acquittal after counsel failed to appear due to noticed conflicts and the defendant acquiesced in the continuance of the case outside the period allowed by the demand for speedy trial. Fisher v. State, 244 Ga. App. 113, 534 S.E.2d 845 (2000).

- Request for a three to four day continuance prior to the last week in which a trial could be held in accordance with the demand for a speedy trial did not waive the defendant's right to a speedy trial. Williams v. State, 216 Ga. App. 109, 454 S.E.2d 142 (1995).

Defendant's continued participation in a pre-trial hearing and acquiescence to a continuance proposed by the trial judge after the end of the second term of court did not constitute a waiver of the defendant's speedy trial rights and the defendant's demand was still in effect. Ringo v. State, 219 Ga. App. 753, 466 S.E.2d 660 (1996).

Burden of showing a waiver is on the state. Parker v. State, 135 Ga. App. 620, 218 S.E.2d 324 (1975).

Absence after the requisite time for discharge had passed would not waive rights under this section. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912).

- That there are qualified juries at both terms must affirmatively appear to the Supreme Court in order for the Supreme Court to reverse a judgment of the superior court denying the discharge. Roebuck v. State, 57 Ga. 154 (1876).

- Denial of the defendant's O.C.G.A. § 17-7-170 motion for discharge and acquittal was affirmed when, inter alia: the defendant failed to show the defendant was prejudiced by delay in trial; there was no evidence of oppressive pretrial incarceration as all but a couple of months of the time the defendant was incarcerated before trial was attributable to service of other sentences; nor was there evidence of impairment of the defendant's defense due to the delay as none of the witnesses who testified at the first trial were allegedly unavailable. Weldon v. State, 262 Ga. App. 782, 586 S.E.2d 452 (2003).

Defendant's motion for discharge and acquittal was in a form sufficient to be recognized as a motion for speedy trial since the demand directly referred to O.C.G.A. § 17-7-170 and thus could be reasonably construed as a demand for trial under the statutory provisions. State v. Allen, 192 Ga. App. 730, 386 S.E.2d 394 (1989).

Trial court properly denied the defendant's motion and amended motion to withdraw a guilty plea as the entry of the plea waived any right to assert a speedy trial issue on appeal. Moreover, given the fact that the defendant was represented by counsel at the time both pro se speedy trial motions were filed, and absent evidence that counsel filed or adopted the motions, no viable demand for a speedy trial existed in the record to support a discharge and acquittal based on O.C.G.A. § 17-7-170. Wallace v. State, 288 Ga. App. 480, 654 S.E.2d 442 (2007).

Trial court erred in denying the defendant's motion for discharge and acquittal on statutory speedy trial grounds because the state's contention that the defendant had failed to comply with O.C.G.A. § 17-7-170 since the defendant had not been physically present in court when the case was called for trial was misplaced; the reason the defendant was not physically present in court was that the defendant remained in state custody and had not been returned from prison to the courtroom. Gifford v. State, 301 Ga. App. 50, 686 S.E.2d 831 (2009).

Application

Nine-month delay following seven-year delay.

- Since the issue of a seven-year trial delay had been addressed previously, denial of a motion to dismiss was proper as the court properly found the defendant was not prejudiced by a nine-month trial delay, especially since the defendant waited until the eve of trial to assert the defendant's right to a speedy trial. Brannen v. State, 262 Ga. App. 719, 586 S.E.2d 383 (2003).

- Defendant's motion for discharge and acquittal should have been granted since an 11-month delay in the filing of the accusation was unreasonable, and the failure to file the accusation in a timely manner after the accusation was transferred to the state court was attributable to a clerical error by a court official, not to any failure of the defendant to follow the requirements set forth in O.C.G.A. § 17-7-170. Klinetob v. State, 194 Ga. App. 52, 389 S.E.2d 551 (1989).

- While the trial court was authorized to conclude that the "lead officer" in the prosecution against the defendant was a material and necessary witness who was unavailable for 14 months while the defendant's case was pending, and thus a continuance during that period was proper under O.C.G.A. § 17-8-31, despite the fact that no explanation was given for the remainder of the delay, given that the defendant failed to prove any of the other Barker v. Wingo factors in determining whether a speedy trial violation occurred, the defendant's motion to dismiss the indictment on speedy trial grounds was properly denied. Bell v. State, 287 Ga. App. 300, 651 S.E.2d 218 (2007), cert. denied, No. S08C0031, 2007 Ga. LEXIS 811 (Ga. 2007).

- Because the defendant failed to show evidence that any prejudice resulted by a 15-month delay in the filing of formal charges, specifically, evidence of either actual anxiety or concern or any specific evidence as to how the delay impaired the ability to present a defense, the trial court abused the court's discretion in finding otherwise. State v. Moore, 289 Ga. App. 99, 656 S.E.2d 156 (2007), cert. denied, No. S08C0808, 2008 Ga. LEXIS 483 (Ga. 2008).

A 27-month delay between the defendant's arrest and the date the defendant filed a motion to dismiss did not violate the defendant's right to a speedy trial when the state's primary reason for delay was to wait for several significant appellate court decisions, the defendant did not assert the defendant's statutory or constitutional right during the period of the delay, the defendant did not demonstrate any isolated or distinct oppressiveness, anxiety, or concern the defendant suffered due to incarceration, and the sole example of impairment of evidence, the memory lapses of police officers, worked to the defendant's advantage. Howard v. State, 215 Ga. App. 343, 450 S.E.2d 824 (1994).

A 67 month delay between arrest and placement of case on trial calendar was presumptively prejudicial and authorized the trial court to dismiss the case for violation of the defendant's speedy trial rights when the prosecutor told defense counsel that the case would be dead docketed; the state could not explain the reason for the delay; defense counsel, relying on the state's representation destroyed the defendant's file; critical evidence related to the scene no longer existed; and a defense witness had died. State v. Redding, 274 Ga. 831, 561 S.E.2d 79 (2002).

- Constitutional right of the defendant charged with vehicular homicide and hit and run to a speedy trial was violated when the defendant was not indicted for three years, without explanation, and two additional years of delay between the defendant's indictment and a possible trial were attributable to the state, despite the defendant's five-year delay in demanding a speedy trial because the defendant's delay was mitigated by the delay in indicting the defendant and by the delay in appointing counsel for the defendant until the statutory time for demanding a speedy trial under O.C.G.A. § 17-7-170(a). Hester v. State, 268 Ga. App. 94, 601 S.E.2d 456 (2004).

Superior court abused the court's discretion in dismissing an indictment on speedy trial grounds, despite a five-year delay in bringing the defendant to trial, which was held to be excessively long and not to be excused; however, because the delay was caused by the state's negligence or other court-related circumstances which were not to be weighed heavily against the state and because the defendant failed to assert a speedy trial violation or show prejudice from the delay, dismissal of the indictment was reversed. State v. Giddens, 280 Ga. App. 586, 634 S.E.2d 526 (2006).

Trial court did not abuse the court's discretion in finding that a defendant failed to show a constitutional violation of the defendant's right to a speedy trial and by denying the defendant's motion for discharge and acquittal with regard to the defendant's convictions for sexual assault as the defendant never filed a speedy trial demand; there was no evidence nor finding by the trial court that the state intentionally delayed the trial to impair the defendant's defense; the defendant's failure to assert either a statutory or constitutional right to a speedy trial was entitled to strong evidentiary weight against the defendant; and the fact that the defendant never filed a speedy trial demand suggested that the defendant was not suffering anxiety or stress from the delay. The reviewing court noted that the five year delay in bringing the defendant to trial was solely based on requests from defense counsel due to illness, death in the family, or death of an expert witness. Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902 (2007).

Seven year delay, caused in part by the state's negligence in prosecuting the case and loss of a 911 tape critical to the defendant's claim of self defense, authorized the trial court to find that defendant was denied the defendant's constitutional right to a speedy trial. State v. Johnson, 274 Ga. 511, 555 S.E.2d 710 (2001).

- Trial court erred by denying the defendant's motion to dismiss the indictment for pre-indictment delay and granting the defendant's motion to dismiss for delay in prosecution because the court failed to properly weigh the case law factors and improperly analyzed the defendant's claim for pre-indictment delay as a due process violation. State v. Curry, 317 Ga. App. 611, 732 S.E.2d 459 (2012).

- Because, during the term that a trial was required after the defendant's original speedy trial demand, a guilty plea hearing was held in lieu of a bench trial, the defendant's guilty plea constituted a withdrawal of the speedy trial demand. Thompson v. State, 240 Ga. App. 539, 524 S.E.2d 239 (1999).

- Trial court did not err in denying the defendant's motion to dismiss the charges against the defendant based on the defendant's lack of sufficient time to prepare a defense since it did not appear that the defendant ever moved for a continuance, but rather it appeared that, acting through retained counsel, the defendant filed a demand for trial pursuant to O.C.G.A. § 17-7-170, at a time when the defendant was incarcerated in Alabama on unrelated charges, and that the defendant's subsequent trial in Georgia occurred during the last term in which the defendant could have been tried pursuant to that section. Miller v. State, 183 Ga. App. 563, 359 S.E.2d 359 (1987).

- Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which struck down punishment by death of persons convicted of certain capital offenses, did not have the effect of abolishing the category of "capital offenses" for purposes of determining the term of court by which a defendant must be given a trial, after having made the demand, before the defendant must be absolutely discharged and acquitted of the offense charged in the indictment. Letbedder v. State, 129 Ga. App. 196, 199 S.E.2d 270 (1973), cert. denied, 414 U.S. 1134, 94 S. Ct. 877, 38 L. Ed. 2d 759 (1974).

While the death penalty could not be constitutionally imposed for a rape conviction when the victim did not die, rape was still a capital offense, for purposes of the speedy trial statutes, O.C.G.A. §§ 17-7-170 and17-7-171, because a determination that the death penalty could not be imposed did not affect the legislature's decision that rape was a crime for which the state should be allowed additional time to prepare the state's case, so, under O.C.G.A. § 17-7-171(b), the state had until the end of the third term of court following the term in which a speedy trial demand was made to try such a case. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004).

If a multi-count indictment includes both capital and noncapital offenses, the time for trial upon a proper demand by a defendant is the time allowed under O.C.G.A. § 17-7-171 for the more serious offenses. Cleary v. State, 258 Ga. 203, 366 S.E.2d 677 (1988), overruled on other grounds, Mize v. State, 262 Ga. 489, 422 S.E.2d 180 (1992).

- Conviction for armed robbery standing alone will not authorize the incorporation of the death penalty and for appellate jurisdictional purposes armed robbery was no longer a capital felony. Notwithstanding the above, armed robbery was still considered a capital offense under the aggravating circumstances provision of former Code 1933, § 27-2534 (see O.C.G.A. § 17-10-30). Simmons v. State, 149 Ga. App. 830, 256 S.E.2d 79 (1979).

Armed robbery was a capital offense even when the state does not seek the death penalty. It therefore falls under the three-term speedy trial requirements of Ga. L. 1952, p. 299, §§ 1 and 2 (see O.C.G.A. § 17-7-171), rather than the two-term requirement for noncapital offenses under former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170). Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976).

Notwithstanding that the death penalty can no longer be imposed, this punishment statute places the offense of armed robbery within the definition of a capital offense and the state was not required to try the defendant on the armed robbery charges by the end of the next term after the defendant's demand for trial. Accordingly, the trial court did not err in denying the defendant's motion for discharge and acquittal pursuant to O.C.G.A. § 17-7-170. White v. State, 202 Ga. App. 291, 414 S.E.2d 297 (1991).

This section did not apply to a murder indictment, which was a capital offense and may therefore affect the life of the defendant. Turner v. State, 136 Ga. App. 42, 220 S.E.2d 57 (1975).

- Denial of the discharge by reason of the failure of the state to afford the defendant a trial pursuant to the defendant's demand is proper when renovations to the courthouse make it impossible to hold court. Stone v. State, 132 Ga. App. 697, 209 S.E.2d 116 (1974).

- Defendant waived the right to discharge and acquittal by acquiescing in defense counsel's numerous absences, which resulted in a continuance of the defendant's trial outside the period of speedy trial demand. State v. Dodge, 251 Ga. App. 361, 553 S.E.2d 83 (2001).

- Since the defendant agreed to a proposed scheduling order that extended discovery and pushed the trial to beyond the speedy trial deadline, the defendant waived the right to an automatic discharge for the violation of O.C.G.A. § 17-7-170. Spencer v. State, 259 Ga. App. 664, 577 S.E.2d 817 (2003).

- Defendant was not entitled to a dismissal for the failure to try the defendant's criminal matter in a timely manner as the defendant's demand for a speedy trial was not filed during the term that the indictment was filed, nor was the demand filed during the next succeeding term as set forth in O.C.G.A. § 17-7-170(a); the trial court judge merely accepted the demand for filing, but the judge never indicated that the defendant had special permission to file the defendant's demand late. Rogers v. State, 271 Ga. App. 698, 610 S.E.2d 679 (2005).

- State was not barred from introducing, at the resentencing phase of the defendant's trial, evidence pertaining to crimes for which the defendant was acquitted under O.C.G.A. § 17-7-170(b). Such evidence would not be barred, either on grounds of collateral estoppel or double jeopardy, because the defendant was not being tried for those prior crimes. Morgan v. State, 257 Ga. 596, 361 S.E.2d 793 (1987), cert. denied, 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988).

- Defendant, who did not file a new speedy trial demand after being reindicted but instead adopted an original demand, was entitled to discharge of the original charges, but the demand was ineffective as to an additional vehicular homicide charge that was added upon reindictment. Banks v. State, 251 Ga. App. 421, 554 S.E.2d 500 (2001).

- When the defendant was charged in city court with driving under the influence, being a less safe driver, serious injury by vehicle, hit and run, and failure to exercise due care, the defendant demanded a speedy trial, and the case was then transferred to superior court, and then the defendant was indicted for homicide by vehicle in the first degree, hit and run, less safe driver, and failure to exercise due care. Defendant's speedy trial demand was effective as to the charges which had been filed in city court because the city court had jury jurisdiction and two terms, and the defendant did not request the transfer to superior court, but the demand was not effective as to the new vehicular homicide charge; therefore, when the speedy trial time limits were violated, the defendant was entitled to discharge, under O.C.G.A. § 17-7-170(a) and (b), as to the charges carried over from city court to superior court, but was not entitled to discharge as to the vehicular homicide charge as the defendant did not file a new speedy trial demand after indictment. Sa v. State, 274 Ga. App. 773, 618 S.E.2d 616 (2005).

- Defendant was originally indicted on two charges of child molestation, but failed to make a speedy trial demand as to this indictment and was later re-indicted as to those two original charges, and additional charges as well, and timely filed a demand as to the second indictment. However, since the defendant failed to file a demand as to the original indictment, the defendant waived the defendant's rights with respect to the repeated charges, but not as to the new charges. Further, through defendant's attorney's petition for leave, the defendant consented to the passing of the defendant's case to the next term, and when the defendant's attorney then "revoked" the attorney's petition for leave late in the term, which impeded the trial court's scheduling ability, the appellate court found that the defendant was manipulating the judicial system and that the trial court should have denied the defendant's motion for discharge and acquittal on the remaining charges. State v. Summage, 266 Ga. App. 630, 597 S.E.2d 641 (2004).

- Denial of a defendant's motion for discharge and acquittal on speedy trial grounds was upheld on appeal since to be effective a demand for a speedy trial must be filed in the court after the accusation or uniform traffic citation has been filed; since the traffic citation against the defendant was never filed with the trial court, the statutory demand for speedy trial under O.C.G.A. § 17-7-170 was never triggered. Walker v. State, 285 Ga. App. 529, 646 S.E.2d 734 (2007).

- Defendant's demand for a speedy trial upon receipt of a uniform traffic citation and complaint form was not premature since such a citation itself contains the accusation, the preferring of which is a prerequisite to a demand for speedy trial. Majia v. State, 174 Ga. App. 432, 330 S.E.2d 171, aff'd, 254 Ga. 660, 333 S.E.2d 834 (1985).

Uniform traffic citation does not qualify as an accusation under O.C.G.A. § 17-7-170 and, therefore, a speedy trial demand filed after receipt of the citation was premature. State v. McKenzie, 184 Ga. App. 191, 361 S.E.2d 54 (1987).

Defendant did not make a timely claim for speedy trial when the traffic citations had been stamped January 15 and the defendant's demand for speedy trial was filed on May 21, which did not satisfy the requirement that the request be filed within the next two terms of court. Even if the citations were not filed in the court on January 15 so that the time for demand began with the filing of the formal accusations on July 1, then the defendant's request would be premature. State v. Black, 213 Ga. App. 331, 444 S.E.2d 368, cert. denied, No. S94C1374, 1994 Ga. LEXIS 929 (1994).

Mere issuance of a uniform traffic citation, without subsequently filing the citation with the clerk of the courts, is not sufficient to authorize the entry of a filed demand for speedy trial pursuant to O.C.G.A. § 17-7-170(a). Ghai v. State, 219 Ga. App. 479, 465 S.E.2d 498 (1995).

Speedy trial demand is premature and a nullity if the demand is filed before the uniform traffic citation or accusation is filed with the court. State v. Stang, 228 Ga. App. 204, 491 S.E.2d 382 (1997).

Defendant's speedy trial demand was premature when the demand was filed prior to the filing of misdemeanor traffic citations in state court. Ellsworth v. State, 232 Ga. App. 164, 500 S.E.2d 642 (1998).

Defendant did not file a speedy trial demand until two terms after the traffic citations were filed; thus, the demand was untimely under O.C.G.A. § 17-7-170(a) and the trial court properly denied the defendant's motion for discharge and acquittal. Parks v. State, 239 Ga. App. 333, 521 S.E.2d 370 (1999).

- Right to demand a speedy trial of a traffic offense in state court attaches when the uniform traffic citation is filed with the court, not only when a formal accusation is filed. State v. Gerbert, 267 Ga. 169, 475 S.E.2d 621 (1996)reversing State v. Gerbert, 219 Ga. App. 720, 467 S.E.2d 177 (1995); Tyler v. State, 224 Ga. App. 550, 481 S.E.2d 228 (1997).

First possible opportunity for the defendant to demand a speedy trial is the state's filing of a uniform traffic citation or a formal accusation, if no citation has been filed. Shire v. State, 225 Ga. App. 306, 483 S.E.2d 694 (1997).

Speedy trial demand filed before the state filed uniform traffic citations or an accusation with the court was premature and a nullity. Millan v. State, 231 Ga. App. 121, 497 S.E.2d 664 (1998).

- It is not until the traffic violations bureau loses jurisdiction to the state court under O.C.G.A. § 40-13-62 that a uniform traffic citation becomes an accusation and is "found" for purposes of O.C.G.A. § 17-7-170. Keller v. State, 183 Ga. App. 717, 359 S.E.2d 714 (1987).

When the state filed uniform traffic citations with the court, the citations functioned as an accusation, commenced the prosecution, and established the term of court at which the right to a speedy trial attached. Clark v. State, 236 Ga. App. 130, 510 S.E.2d 616 (1998), aff'd, 271 Ga. 519, 520 S.E.2d 694 (1999).

Defendant's demand for a speedy trial was not timely filed since the demand was filed in the next term following the filing of the formal accusation, rather than in the next term following the filing of the uniform traffic citation. Clark v. State, 271 Ga. 519, 520 S.E.2d 694 (1999), affirming Clark v. State, 236 Ga. App. 130, 510 S.E.2d 616 (1998).

Demands for speedy trial filed in a probate court, which was not a court of record, were ineffective; thus, if cases were transferred to the state court and the defendants did not file demands for speedy trial, the state court did not err in denying the defendants' motions for discharge and acquittal on such basis. Fausnaugh v. State, 244 Ga. App. 263, 534 S.E.2d 554 (2000).

Dismissal of defendant's demand for speedy trial was improper when no affirmative act of the accused delayed the trial during the period mandated by the defendant's demand. Ciprotti v. State, 190 Ga. App. 639, 379 S.E.2d 802 (1989).

- See Caracena v. State, 186 Ga. App. 763, 368 S.E.2d 532 (1988).

When 13 people were each charged by consecutively numbered accusations with theft from their common employer, and each filed a motion requesting that all motions filed by any of them be adopted as motions made by all, but no written order was entered on the motions to adopt, the trial court correctly denied a motion for acquittal predicated on the state's failure to bring nine of the defendants to trial in the term within which the defendants' demands for trial had been made or the next succeeding term, as only one defendant (not one of the nine) actually filed a demand for trial. Jordan v. State, 194 Ga. App. 415, 390 S.E.2d 614, cert. denied, 194 Ga. App. 911, 390 S.E.2d 614 (1990), aff'd sub nom., Parks v. Norred & Assocs., 206 Ga. App. 494, 426 S.E.2d 12 (1992).

Defendant's motion for discharge and acquittal was correctly denied since the defendant's first demand for speedy trial was invalid because the defendant filed the demand before the indictment was returned and the defendant's second demand was filed after the time allotted under O.C.G.A. § 17-7-171(a). Freeman v. State, 232 Ga. App. 715, 503 S.E.2d 601 (1998).

Trial court acted properly in denying the defendant's motion for discharge and acquittal when, after filing a demand, the defendant withdrew the demand in an attempt to delay trial, filed an appeal, and then insisted that the demand was somehow automatically revived upon remittitur. Doehling v. State, 238 Ga. App. 293, 518 S.E.2d 137 (1999).

Since the record showed that juries were impaneled and qualified to try the defendant during the December term after the defendant's demand was filed, the defendant's demand for speedy trial was effective in the December term; since the record further showed that juries were impaneled and qualified to try the defendant during the February term, the defendant was entitled to discharge and acquittal. Campbell v. State, 199 Ga. App. 25, 403 S.E.2d 882 (1991).

Since the defendant's motion to suppress was not granted and appealed by the state, but derived more than two terms after the demand for trial was filed, and there was no evidence that the defendant took any action by which the defendant or defendant's counsel caused or consented to a delay of the trial to a subsequent term, the defendant was entitled to discharge and acquittal. Ballew v. State, 211 Ga. App. 672, 440 S.E.2d 76 (1994).

Trial court erred in denying the defendant's motion for discharge and acquittal as the defendant demanded a speedy trial during the trial court's September term, and did not waive that demand when the trial court failed to timely notify the defendant of the defendant's trial date during the November term, which caused the defendant to miss the defendant's trial since the defendant's trial was not held within the time provided for by Georgia statutory law. Clark v. State, 259 Ga. App. 573, 578 S.E.2d 184 (2003).

Trial court erred in denying defendant's motion to dismiss which alleged a speedy trial violation as the delay in bringing the defendant to trial was prejudicial, especially when, after an assertion of the right, an additional seven months passed before the court ruled on the claim, and in the interim, an alleged material defense witness died. Hardeman v. State, 280 Ga. App. 168, 633 S.E.2d 595 (2006).

Trial court did not err in failing to grant the defendant a discharge and acquittal on statutory speedy trial grounds because the defendant failed to file a valid demand pursuant to O.C.G.A. § 17-7-170, but filed a pro se demand while represented by counsel. Smith v. State, 332 Ga. App. 849, 775 S.E.2d 211 (2015).

- Although the defendants' demand for trial did not specifically reference O.C.G.A. § 17-7-170, because the defendants' demand for trial both requested a speedy trial and recited the style of the case and the indictment number to which the demand applied, the demand was sufficient to invoke the provisions of that section providing for discharge and acquittal. Baker v. State, 212 Ga. App. 731, 442 S.E.2d 815 (1994).

- Request for final disposition of detainers on a prisoner's record (see O.C.G.A. § 42-6-1 et seq.) is not the equivalent of a demand for trial and the failure to try the inmate at the term at which such request is made or at the next succeeding term does not authorize the inmate's discharge and acquittal of the offense charged in the pending indictment, accusation, or information. Spurlin v. State, 228 Ga. 2, 183 S.E.2d 765 (1971).

Denial of a motion under O.C.G.A. § 17-7-170 is directly appealable. Smith v. State, 169 Ga. App. 251, 312 S.E.2d 375 (1983), overruled on other grounds, State v. Collins, 201 Ga. App. 500, 411 S.E.2d 546 (1991).

Denial of a motion to dismiss based upon O.C.G.A. § 17-7-170 is directly appealable under O.C.G.A. § 5-6-34(a). Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).

Although not technically a final judgment, the denial of a motion to dismiss (more properly, a motion for acquittal) based upon O.C.G.A. § 17-7-170 is directly appealable under O.C.G.A. § 5-6-34(a). Cook v. State, 183 Ga. App. 720, 359 S.E.2d 716 (1987).

Defendant's direct appeal from the denial of a speedy trial motion to dismiss was proper given the state of Georgia law; however, the motion was properly denied because the defendant, who had been incarcerated in the interim period, was equally responsible for the pretrial delay, never asserted the right to trial, never requested disposition of the subject offenses, suffered no prejudice, and did not suffer oppressive pretrial incarceration. Lamar v. State, 262 Ga. App. 735, 586 S.E.2d 416 (2003).

- State had the right under Ga. L. 1973, p. 297, § 1 (see O.C.G.A. § 5-7-1) to appeal a trial court's grant of a criminal defendant's motion for discharge and acquittal since such motion was based on the denial of the defendant's demand for trial pursuant to former Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170). State v. Benton, 246 Ga. 132, 269 S.E.2d 470 (1980).

- When the defendant's motion to suppress was granted and the state appealed, the appeal tolled, but did not waive, the speedy trial period; the defendant's subsequent requests for bond to allow participation in rehabilitation programs did not demonstrate a desire to delay the trial and therefore did not waive the defendant's speedy trial demand. Banks v. State, 251 Ga. App. 421, 554 S.E.2d 500 (2001).

- On defendant's interlocutory appeal, after filing of the remittitur in the lower court, the state has the remainder of that term and one additional regular term of court in which to try the defendant pursuant to the defendant's demand for trial, provided there are juries impaneled and qualified to try the defendant. Henry v. State, 214 Ga. 527, 449 S.E.2d 79 (1994).

- Criminal defendant is not required to follow the interlocutory procedures of O.C.G.A. § 5-6-34(b) when appealing, prior to the conclusion of a trial on the merits, from the denial of a plea in bar based on O.C.G.A. § 17-7-170. Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).

- On defendant's interlocutory appeal, filing of the remittitur in the lower court is the point in time at which the demand clock resumes ticking on a pre-appeal demand for trial, not when the trial court makes the appellate court judgment the judgment of the lower court, overruling Ramirez v. State, 211 Ga. App. 356, 439 S.E.2d 4 (1993). Henry v. State, 214 Ga. 527, 449 S.E.2d 79 (1994).

In order to receive the right or privilege granted under this section, the defendant must show a demand made in accordance with the statute. 1965-66 Op. Att'y Gen. No. 65-70.

- Individual making a proper demand for trial under this section must be produced for trial within the statutorily allotted time, even though the individual may be serving another sentence under the jurisdiction of the Board of Offender Rehabilitation at the time of demand. 1965-66 Op. Att'y Gen. No. 65-70.

Fact that a demand for jury trial is filed on the last day of the term has no legal significance as long as there are jurors impaneled and qualified to try the case. 1984 Op. Att'y Gen. No. U84-39.

- Provisions of O.C.G.A. § 17-7-170 do not apply to probate courts, since no juries are available in that court, and therefore there would be no "juries inpaneled and qualified to try" the defendant. 1986 Op. Att'y Gen. No. U86-13.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 267 et seq., 278 et seq.

- 16B C.J.S., Constitutional Law, § 1328. 16C C.J.S., Constitutional Law, § 1696. 22A C.J.S., Criminal Procedure and Rights of the Accused, § 554. 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 793 et seq., 820 et seq.

- Discharge of accused under a limitation statute as a bar to a subsequent prosecution for the same offense, 3 A.L.R. 519.

Remedy for delay in bringing accused to trial or to retrial after reversal, 58 A.L.R. 1015.

Waiver or loss of defendant's right to speedy trial in criminal case, 129 A.L.R. 572; 57 A.L.R.2d 302.

Discharge of accused for holding him excessive time without trial as bar to subsequent prosecution for same offense, 50 A.L.R.2d 943.

Continuance of criminal case because of illness of accused, 66 A.L.R.2d 232.

Effect of abolition of capital punishment on procedural rules governing crimes punishable by death - post-Furman decisions, 71 A.L.R.3d 453.

Illness or incapacity of judge, prosecuting officer, or prosecution witness as justifying delay in bringing accused speedily to trial - state cases, 78 A.L.R.3d 297.

Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695.

Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 A.L.R.4th 600.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information, 39 A.L.R.4th 899.

Disruptive conduct of spectators in presence of jury during criminal trial as basis for reversal, new trial, or mistrial - spoken words, 102 A.L.R.6th 279.

Disruptive conduct of spectators in presence of jury during criminal trial as basis for reversal, new trial, or mistrial - laughter, crying, and other nonverbal sounds by spectators, 103 A.L.R.6th 35.

What constitutes accused's consent to court's discharge of jury or to grant of motion for mistrial which will constitute waiver of former jeopardy plea - silence or failure to object or protest, 103 A.L.R.6th 137.

Construction and application of Speedy Trial Act, 18 USCS §§ 3161 to 3174 - United States Supreme Court cases, 46 A.L.R. Fed. 2d 129.