☢ test - Í

Thornton v. State, 301 Ga.App. 784, 689 S.E.2d 361 (December 22, 2009). Trial court erred in denying defendant’s motion for discharge based on statutory speedy trial demand. “Here, even though Thornton's attorney agreed to a continuance, there is no evidence showing that she ‘consented to passing the case until a subsequent term’ of court. (Emphasis omitted.) Williams v. State, 216 Ga.App. 109, 109(1) (454 S.E.2d 142) (1995). ‘[T]he continuance [agreed to] did not delay the trial past the time within which trial could be held in accordance with [Thornton's] demand,’ Weidlund v. State, 191 Ga.App. 668, 670 (382 S.E.2d 709) (1989) (punctuation omitted). … See Ingram v. State, 286 Ga.App. 662, 664(3) (650 S.E.2d 743) (2007) (request for a continuance ‘does not waive a speedy trial demand when the court still could have tried the case within the time required’); Williams, supra, 216 Ga.App. at 110(1).” Fact that defense counsel was requesting continuance because she was leaving local indigent defense position doesn’t require different result. “‘Although the trial judge acted out of a concern that new trial counsel may not have had sufficient time to prepare for trial, there is nothing in the record to indicate that defense counsel was not prepared to try the case. Moreover, there is no indication that the recent appointment of new defense counsel was a result of action taken by the defendant or counsel. ’ (Emphasis supplied; citations omitted),” quoting Ballew v. State, 211 Ga.App. 672, 673-674 (440 S.E.2d 76) (1994). Works v. State, 301 Ga.App. 108, 686 S.E.2d 863 (November 17, 2009). Appears to hold that defendant waived speedy trial demand pursuant to OCGA § 17-7-170(c) by not filing plea in bar prior to trial, citing Williams v. State , 296 Ga.App. 888, 676 S.E.2d 303 (March 24, 2009) (speedy trial demand “expired” at end of first timely trial and didn’t apply to retrial). Gifford v. State, 301 Ga.App. 50, 686 S.E.2d 831 (November 13, 2009). Trial court erred in denying defendant’s motion for discharge based on statutory speedy trial violation. Neither counsel’s conflict letters, nor defendant’s failure to physically appear in court, waived defendant’s speedy trial demand in these circumstances. Conflict letters. “The conflict letters … were filed after the two terms of court at issue in this case had expired and thus are not relevant to the waiver issue. Furthermore, the Supreme Court of Georgia has expressly held that the filing of a notice of conflict letter does not constitute a waiver of the defendant's speedy trial demand, since the filing of the letter is mandatory under USCR 17.1. See Fisher [ v. State, 273 Ga. 721, 722 (545 S.E.2d 895) (2001)]. See also Oni [ v. State, 268 Ga.App. 840, 842 (602 S.E.2d 859) (2004)].” Defendant’s presence. “The reason Gifford was not physically present in court was that he remained in state custody and had not been returned from prison to the courtroom. We have held, in a whole court decision, that because a trial court has authority to compel an incarcerated defendant's presence for trial, such a defendant does not violate the requirements of OCGA § 17-7-170 by not being physically present due to the incarceration. See [ State v. Collins, 201 Ga.App. 500, 500-501 (411 S.E.2d 546) (1991)].” Tyner v. State, 298 Ga.App. 42, 679 S.E.2d 82 (May 19, 2009). Defendant waived statutory speedy trial demand by moving to quash the indictments against him. “Both motions constitute affirmative actions by Tyner. Although the motions were never ruled upon, Tyner cannot deny that the motions forced the State to reindict him. … Thus, we find Willingham v. State, 232 Ga.App. 244 (501 S.E.2d 575) (1998), to be controlling. In that case, the defendant's indictment was quashed four months, and a court term, following his motion to quash. Id. at 244-245.This Court held that the defendant's speedy trial demand did not survive the quashing of his indictment. Id. at 245. See also Fletcher v. State, 213 Ga.App. 401, 402(1) (445 S.E.2d 279) (1994) (moving to quash the indictments tolled trial demands).” Trimm v. State, 297 Ga.App. 861, 678 S.E.2d 567 (May 14, 2009). Trial court properly found that defendant waived her statutory speedy trial demand by opting for continuance rather than going to trial on new indictment issued on eve of trial. “Trimm argues … that the state should not be allowed to defeat her speedy trial rights by filing a superseding indictment on the eve of trial in order to force a continuance. … It is true that ‘Georgia courts have sought to guard against ... dilution of the right to a speedy trial by conditioning it on the ‘convenience’ or ‘ingenuity’ of the [s]tate in scheduling the case.’ (Citations omitted.) [ Fisher v. State, 273 Ga. 721, 723, 545 S.E.2d 895 (2001)]. But there is no evidence in the record that the state intended to manipulate the trial calendar by re-indicting Trimm. ‘It is lawful for the grand jury to return any number of indictments for the same offense.’ (Citations omitted.) Jones v. Murray, 223 Ga. 519, 156 S.E.2d 360 (1967). Accord Dalton v. State, 263 Ga. 138, 140, 429 S.E.2d 89 (1993), disapproved on other grounds, Rice v. State, 264 Ga. 846, 847, n. 1, 452 S.E.2d 492 (1995).” “Finally, … we note that in a case in which compliance with USCR 32.1's seven-day notice of trial requirement would cause the state to violate a defendant's right to a speedy trial, a trial court retains the discretion to proceed to trial in accordance with the defendant's speedy trial demand. Kellibrew v. State, 239 Ga.App. 783, 785(2), 521 S.E.2d 921 (1999); compare Clark v. State, 259 Ga.App. 573, 576, 578 S.E.2d 184 (2003) (court's complete failure to comply with USCR 32.1 was an abuse of discretion, so that defendant's failure to appear for trial of which she received no notice did not amount to a waiver of her speedy trial