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Callaham v. State, 317 Ga.App. 513, 732 S.E.2d 88 (August 29, 2012). Aggravated assault sentence affirmed; although sentence was increased after reversal and retrial (by requiring victim restitution), presumption of vindictiveness was overcome. 1. Adding victim restitution to sentence increased sentence and raised presumption of vindictiveness. “‘[R]estitution is punishment when ordered as part of a criminal sentence.’ (Citation and footnote omitted). Harris v. State, 261 Ga. 859, 861(2) (413 S.E.2d 439) (1992). Thus, an increase in restitution upon retrial is subject to this rule. See generally U.S. v. Feldman, 825 F.2d 124, 132 (7 th Cir., 1987); U.S. v. Haddock, 50 F.3d 835, 840(C) (10 th Cir., 1995) (raising but not deciding the same argument).” “Here, Callaham was convicted of both aggravated assault and possession of a firearm during the commission of a felony at the first trial, but the first conviction was reversed because of judicial misconduct. Callaham was only convicted of aggravated assault at the second trial, yet he received a greater sentence as a result of the restitution order. We conclude that the [ North Carolina v. Pearce, 395 U.S. 711, 726 (89 S.Ct. 2072, 23 L.Ed.2d 656) (1969)] presumption [of vindictiveness] applies.” 2. Presumption was rebutted. “It is apparent from the evidence presented that some of the information about the victim's damages came from a time after the sentencing following the first trial. Given that, together with the evidence presented regarding the victim's damages and compensation from the State, we conclude that there is objective information in the record justifying the restitution order thereby rebutting the Pearce presumption.” West v. State, 241 Ga.App. 877, 528 S.E.2d 287 (January 19, 2000). Conviction and sentence for escape affirmed; no evidence that maximum 10-year sentence imposed by trial court was “excessive and vindictive,” though greater than that suggested by prosecutor. “Uniform Superior Court Rule 33.6 does not require the trial judge to sentence the defendant to the same sentence that would have been appropriate if the defendant had pled guilty. Johnson v. State, 224 Ga.App. 568, 570(2), 481 S.E.2d 268 (1997). ‘“It is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea.”’ (Citations omitted.) Baldwin v. State, 217 Ga.App. 866, 868(3), 460 S.E.2d 80 (1995). Accord Arnold v. State, 228 Ga.App. 470, 473(1), 491 S.E.2d 819 (1997); Sparks v. State, 176 Ga.App. 8, 12-13(3), 335 S.E.2d 298 (1985). Although the judge did not indicate her reasoning for sentencing West to the maximum penalty for his crime, we are not persuaded that she was motivated to do so merely because West refused to enter a guilty plea. At trial, West offered no evidence that he was not guilty of escape and showed no remorse whatsoever. These factors, along with a concern for Arnold's [victim in defendant’s prior family violence battery conviction] safety, may have influenced the judge. Nor are we persuaded that the sentence was based upon West's comments to the judge after the verdict was returned,” questioning whether judge had personal interest in the county work release program from which he escaped. FFF. VOID SENTENCE, CHALLENGE TO See POST-CONVICTION RELIEF – ARREST OF JUDGMENT, and POST-CONVICTION RELIEF - VOID SENTENCE, MOTION TO VACATE, above XVIII. SPEEDY TRIAL A. CONSTITUTIONAL RIGHT Seminal cases: Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Doggett v. United States , 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Priest v. State, 335 Ga.App. 754, 782 S.E.2d 835 (February 22, 2016). Child molestation and related convictions vacated and remanded for full consideration of constitutional speedy trial issues, specifically, defendant’s contention of prejudice resulting from missing witnesses. Defendant presented evidence at hearing regarding two witnesses interviewed by defense investigator but who could not be located at time of trial, almost five years after his arrest. Both witnesses allegedly related to claims that the victim had admitted to falsifying her allegations of molestation. The trial court, however, failed to address how the witnesses’ potential testimony factored into its analysis of the prejudice prong of its speedy trial analysis. “Given the potentially probative nature of such evidence, as well as the lengthy delay in this case, we cannot conclude that, even if it had considered all that these potential witnesses might have testified to, the trial court would have been required as a matter of law to weigh the Barker factors as it did and deny the motion for a new trial, anyway. … Therefore, we vacate the trial court’s denial of a motion for new trial and remand for the trial judge to revisit the question of prejudice.” State v. Thompson, 334 Ga.App. 692, 780 S.E.2d 67 (November 18, 2015). In DUI prosecution, trial court erred by granting plea in bar based on constitutional speedy trial violation without properly weighing the Barker factors. 1. Responsibility for delay. Trial court erred when it “ concluded that responsibility for the [entire 26-month] delay weighed against the State.” “Thompson also caused some substantial delay, however, by filing a jury trial demand and then moving to transfer the case back to [probate] court and failing to obtain a ruling on that motion; by