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RICE v. THE STATE.
S94A1868.
FLETCHER, Justice.
Murder. Fulton Superior Court. Before Judge Lovett, pro hac vice.
Rice was indicted in Fulton County on August 31, 1993 for murder, felony murder and aggravated assault in the death of Paul York on May 2, 1993. Rice's counsel filed a speedy trial demand on his behalf in the September-October term on October 21, 1993. Two and a half weeks later in the November-December term, Rice's case appeared on the trial calendar. His counsel asserted that she was not ready for trial and filed a motion for a one-month continuance. The trial court granted the motion that day and held that the filing of the motion for continuance served as a waiver of the speedy trial demand. Rice was not tried within that term (the continuance expired while time remained in that term) or in the next succeeding term, though jurors were impaneled and he announced ready. Rice filed a motion for discharge and acquittal, which was denied. He appeals from the denial of his motion. We hold that any continuance granted at the defendant's request will operate as a waiver of a speedy trial demand under OCGA 17-7-171, and we therefore affirm the trial court.
OCGA 17-7-171 (b) requires discharge and acquittal if a defendant in a capital case is not tried within the second term following his demand for speedy trial, provided that the defendant is "present in court announcing ready for trial." Rice contends that because the one-month continuance did not take the case outside the term, he did not waive his speedy trial demand and the failure to try him within the second term of court requires his acquittal. Rice, however, relies on cases decided under OCGA 17-7-170, which is only applicable to prosecutions charging non-capital offenses, and does not contain the requirement that the defendant be in court announcing ready for trial. See, e.g., Ciprotti v. State, 190 Ga. App. 639, 641 (379 SE2d 802) (1989) (Pope, J., concurring specially); see also Walker v. State, 89 Ga. 482 (15 SE 553) (1892) (misdemeanor prosecution). The rule stated by these cases is applicable only to a demand filed under OCGA 17-7-170, and not to a demand under 17-7-171.
CARLEY, Justice, concurring specially.
I agree with the majority that, in this case, the request for and grant of the continuance by Rice constituted a waiver of his speedy trial demand pursuant to OCGA 17-7-171. I also agree that cases decided under OCGA 17-7-170 are distinguishable because that Code section, unlike OCGA 17-7-171, does not contain any requirement that the defendant be in court announcing ready for trial after the making of a demand for speedy trial.
However, I cannot concur in the majority's holding that "any continuance granted at the defendant's request will operate as a waiver of a speedy trial demand under OCGA 17-7-171. . . ." (Emphasis supplied.) (Majority opinion, page 847.) While I agree with the establishment of a "bright line" rule, the holding that any continuance granted at the request of the defendant after the making of his speedy trial demand will result in a waiver is inconsistent with the majority's very rationale for distinguishing demands made under OCGA 17-7-171 from those made under OCGA 17-7-170. That distinction is based upon the language of OCGA 17-7-171 (b), to wit:
If more than two regular terms of court are convened and adjourned after the term at which the demand is filed and the defendant is not given a trial, then he shall be absolutely discharged and acquitted of the offense charged in the indictment, provided that at both terms there were juries impaneled and qualified to try the defendant and provided, further, that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.
(Emphasis supplied.) In addition to the requirement that the defendant be "present in court announcing ready for trial . . ." OCGA 17-7-171 differs from OCGA 17-7-170 in another way. Under OCGA 17-7-170, a speedy trial demand requires that the defendant be tried at the term "when the demand is made or at the next succeeding regular court term thereafter. . . ." OCGA 17-7-170 (b). However, in a capital case, the State may try the defendant at the term when the demand is filed or during the "two regular terms of court . . . convened . . . after the term at which the demand is
filed. . . ." OCGA 17-7-171 (b). See generally Henry v. James, 264 Ga. 527 (1) (449 SE2d 79) (1994).
In order to avoid waiving his demand for speedy trial under OCGA 17-7-171, the defendant need only be "present in court announcing ready for trial" at the two terms following the expiration of the term at which the demand is made. In this case, the request for continuance was made and granted during one of those succeeding terms and, thus, I agree that Rice waived his right to a speedy trial under the statute. However, if a defendant in a capital case makes a demand for speedy trial and, subsequently, is granted a continuance which expires during the same term at which his demand was made, he can nevertheless insist that he be tried at either of the two regular terms of court following the term in which the demand was made. In such a situation, the grant of defendant's request for a continuance would not waive his right to seek discharge and acquittal if he were not tried at the two regular terms of court which were "convened and adjourned after the term" during which he made his demand for speedy trial pursuant to OCGA 17-7-171. To the extent that the application of the majority's holding in this case would result in a waiver of a defendant's speedy trial demand when there has been no grant to the defendant of a continuance during the two succeeding terms, it would, in my opinion, be contrary to the plain language of the statute.
I am authorized to state that Presiding Justice Benham joins in this special concurrence.
Lewis R. Slaton, District Attorney, A. Nevell Owens, Carl P. Greenberg, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellee.
Notes
1  Any contrary suggestion in Dalton v. State, 263 Ga. 135, 139, n. 2 (429 SB2d 89) (1993) is disapproved.
2  Of course, a continuance granted at the state's request or entered sua sponte by the trial court will not operate as a waiver on the part of the defendant. Additionally, a tempo-
Angela B. Clarke, for appellant.
DECIDED JANUARY 23, 1995.
Thursday May 21 08:13 EDT


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