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E. STATUTORY RIGHT

1. CAPITAL OFFENSES Walker v. State, 290 Ga. 696, 723 S.E.2d 894 (March 19, 2012). In prosecution for murder, armed robbery, and related offenses, trial court properly denied motion for discharge and acquittal based on statutory speedy trial demand. 1. Demand was premature, as OCGA § 17–7–171, which governs capital felonies, does not grant defendants the right to discharge until “more than two regular terms of court are convened and adjourned after the term at which the demand for speedy trial is filed.” Contrary to defendant’s argument, and prior dicta of Georgia’s appellate courts, “more than two” means “at least three full terms of court have expired since the term in which her demand was filed.” “[I]n light of the ‘extreme sanction’ for violations of the speedy trial statutes—dismissal of the case with prejudice and without a trial— these statutes are interpreted strictly against defendants who seek to invoke them. See, e.g., State v. Varner, 277 Ga. 433, 434 (589 S.E.2d 111) (2003). These are not penal laws, but rather laws that give defendants a benefit—here, the potential dismissal of capital murder charges. See id. at 434 n. 1. Construing § 17–7–171(b) strictly against defendants, any inconsistency between ‘more than two’ terms and ‘both’ terms must be resolved to authorize acquittal only when more than two terms have expired without a trial after the term in which the speedy trial demand was filed.” Disapproving dicta in prior cases alluding to two-term limitation: Tutt v. State, 267 Ga. 49, 50 (472 S.E.2d 306) (1996); Burns v. State, 265 Ga. 763, 763 (462 S.E.2d 622) (1995), and others. Melton, writing for Hunstein and Benham, concurs specially, disagreeing with this analysis based on stare decisis. 2. State’s filing of notice of intent to seek death penalty “reset the clock” on defendant’s statutory speedy trial demand. “The State's filing of a notice of intent to seek the death penalty typically resets the statutory speedy trial clock, which will not start over ‘until the convening of the first term following the completion of pretrial review proceedings in the Supreme Court under Code Section 17–10–35.1.’ OCGA § 1–7– 171(c). See Franks v. State, 266 Ga. 707, 707 (469 S.E.2d 651) (1996). However, the filing of a death penalty notice cannot reset a speedy trial deadline that has already expired. See Labovitz v. Hopkinson, 271 Ga. 330, 333 and n. 5 (519 S.E.2d 672) (1999) (noting that under the speedy trial statutes, ‘[t]he discharge and acquittal occurs by operation of law at the close of the last term at which the defendant could be tried timely’); Smith v. State, 192 Ga.App. 604, 604–605 (386 S.E.2d 370) (1989) (holding that because a defendant's discharge and acquittal occurs by operation of law at the close of the last term at which he could be timely tried, the waiver of his demand at a subsequent term has no effect and does prevent discharge and acquittal when sought).” Merrow v. State, 268 Ga.App. 47, 601 S.E.2d 428 (June 21, 2004). “[F]or purposes of the speedy trial statutes, rape is indeed a capital offense.” Distinguished from the recidivist sentencing statutes, where rape is not considered a capital offense: “The purpose for allowing the State more time to try capital offenses is a recognition ‘of gravity in nature, seriousness and importance’ of such offenses such that the State’s investigation of and preparation for trying such serious and complex offenses may necessarily be more extensive and lengthy, thus requiring more time. Letbedder v. State , 129 Ga.App. 196, 199(2), 199 S.E.2d 270 (1973)…. Since the removal of the sentencing option of imposing the death penalty does not reflect on the legislature’s original determination that the State should be allowed more time to prepare a rape case, rape should be a capital offense for purposes of the speedy trial statutes.” Defendant’s motion for discharge was thus premature. Accord, Burdett v. State , 285 Ga.App. 571, 646 S.E.2d 748 (May 25, 2007); Walker (March 19, 2012), above . Levester v. State, 270 Ga. 485, 512 S.E.2d 258 (February 8, 1999). OCGA § 17-7-171(b) requires defendant or his attorney personally appear in court to press his statutory speedy trial demand in a capital case; a letter to the court is not sufficient to constitute an “appearance.” “ OCGA § 17-7-171(b) does not provide for constructive compliance. The statutory requirements are plain and mandate strict adherence, and a defendant may waive the right to a speedy trial by his actions or inaction. Rice v. State, 264 Ga. 846, 847, 452 S.E.2d 492 (1995); Mize v. State, 262 Ga. 489, 490(2), 422 S.E.2d 180 (1992). Even though a defendant’s case does not appear on a trial calendar during the first two regular terms following the term in which his demand for speedy trial was filed, the defendant is nevertheless required, either through his own actions or those of his attorney, to actually be present in court, announcing his readiness to proceed, and requesting trial. Burns v. State, 265 Ga. 763, 462 S.E.2d 622 (1995). Contrary to Levester’s contention, this statutory mandate did not abridge his constitutional right to a public and speedy trial. The record contains no suggestion that Levester’s counsel was, in any manner, prevented from being present in court, announcing ready, and requesting trial on Levester’s behalf.” 2. FORM OF DEMAND Hudson v. State, 311 Ga.App. 206, 715 S.E.2d 442 (July 11, 2011). In prosecution for aggravated sodomy and related offenses, trial court erred in denying defendant’s motion for discharge and acquittal; statutory speedy trial demand was