In all criminal prosecutions the defendant shall have the constitutional right to a speedy and public trial. A defendant also has a right to a speedy trial created by Georgia statute found at O.C.G.A. § 17-7170 and O.C.G.A. § 17-7-171. The speedy trial statutes complement the constitutional right to a speedy trial. Once a case is indicted the time begins to run on a defendant's statutory right to a speedy trial. If a defendant files a speedy trial demand under the statute and is not brought to trial within the time allowed the defendant must be acquitted.
Failure to file a speedy trial demand means a defendant could sit in jail for months or years waiting on a trial date. By the time the case makes it to the next court date after indictment, the time to file a speedy trial demand may have expired. The defendant is under the duty to monitor the status of the case if the defendant wishes to file a speedy trial demand. The defendant cannot complain that he did not file a speedy trial demand because he was not brought to court for arraignment. Smith v. State, 207 Ga. App. 762 (1993).
If a defendant was given a court appointed lawyer for the preliminary hearing he is considered represented by counsel. A defendant cannot represent himself and have a lawyer. Earley v. State, 310 Ga. App. 110 (2011); Brooks v. State, 265 Ga. 548 (1995). Thus, a defendant cannot file a pro se speedy trial demand and be represented by a public defender. Trimm v. State, 297 Ga. App. 861 (2009). The judge will not consider a speedy trial demand filed by a defendant who has a lawyer. Pless v. State, 255 Ga. App. 95 (2002); Maddox v. State, 218 Ga. App. 320 (1995).
A defendant must assert the right to a speedy trial. In asserting a defendant's right under the statutes, certain procedures must be followed. The speedy trial demand must be filed pursuant to O.C.G.A. § 17-7-171 for cases that are considered capital felonies and O.C.G.A. § 17-7-170 for all other cases. Murder, armed robbery, and rape are considered capital felonies, thus, O.C.G.A. § 17-7171 must be followed. Walker v. State, 290 Ga. 696 (2012); Tolbert v. State, 313 Ga. App. 46 (2011); White v. State, 202 Ga. App. 291 (1991)( Armed robbery); Merrow v. State, 218 Ga. App 47 (2004) ( Rape).
A defendant must file a speedy trial demand during the term in which the indictment or accusation is returned or the next term of court. The terms of court are found in O.C.G.A. § 15-6-3. A speedy trial demand filed before the indictment or accusation is premature and invalid. Campbell v. State, 294 Ga. App. 166 (2008).
The demand for speedy trial must 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. State v. Persia, 183 Ga. App. 24 (1987). The demand for speedy trial must be filed as a separate, distinct, and individual document and shall not be a part of any other pleading or document. Hudson v. State, 311 Ga. App. 206 (2011). The demand shall clearly be titled "Demand for Speedy Trial;" reference the Code section (O.C.G.A. § 17-7-170 or O.C.G.A. § 17-7-171) within the pleading; and identify the indictment number or accusation number for which the demand is being made. Verscharen v. State, 188 Ga. App. 746 (1988); Ferris v. State, 172 Ga. App. 729 (1984).
A speedy trial demand filed at a term when no jurors are impaneled does not begin to run until the next term. McIver v. State, 205 Ga. App. 648 (1992); Redstrom v. State, 239 Ga. App. 769 (1999). The defendant has the burden to show that there were qualified jurors impaneled during the court term at which the demand was filed and the succeeding term (17-7-170) or terms (17-7-171). Union v. State, 273 Ga. 666 (2001). If a trial in which there was a speedy trial demand pending results in a hung jury (mistrial), the State meets its obligation under the statute when it retries the defendant during the remainder of the term of the mistrial, provided there are jurors impaneled and qualified to hear the case and, if not, in the next succeeding regular term of court, again provided there are jurors impaneled and qualified to hear the case. State v. Varner, 277 Ga. 433 (2003). If a defendant appeals after a conviction in a case with a speedy trial demand and the case is overturned on appeal the time for a retrial is limited by the speedy trial demand. After the appeal, jurors must be present and available to serve after the remittitur (document indicating the case is back from appeal) is filed for a court term to count as one of the terms in which the State must try the defendant.
Waiver of Speedy Trial Demand
A defendant can waive his right to a speedy trial. There is no rule that the defendant must be present when his lawyer waives his speedy trial demand. Twiggs v. State, 315 Ga. App. 191 (2012). A request for continuance generally waives a speedy trial demand. Trimm v. State, 297 Ga. App. 861 (2009). However, a request for a continuance does not amount to a waiver of the speedy trial demand under O.C.G.A. § 17-7-170 as long as the request does not seek to continue the case beyond the term of court. Thornton v. State, 301 Ga. App. 784 (2009); Ingram v. State, 286 Ga. App. 662 (2007). If the judge continues the case on his own, there is no waiver. Rice v. State, 264 Ga. 846 (1995).
The fact that the defendant's attorney had conflicts in his schedule does not amount to a waiver. Gifford v. State, 301 Ga. App. 50 (2009). However, the failure of counsel to notify the judge once the conflict is resolved can constitute a waiver of the speedy trial demand. Fisher v. State, 273 Ga. 721 (2001). Nor is the filing of a leave of absence a waiver unless the leave causes the case to go beyond the term. Birts v. State, 192 Ga. App. 476 (1989); Jones v. State, 250 Ga. App. 829 (2003); Jones v. State, 276 Ga. 171 (2003); Linkous v. State, 254 Ga. App. 43 (2002); Vonslep v. State, 253 Ga. App. 881; State v. Dodge, 251 Ga. App. 361 (2001); State v. Summage, 266 Ga. App 630 (2004). However, the State cannot manipulate the trial calendar to hamper the speedy trial demand by making it impossible for the defense attorney to be available. Fisher v. State, 273 Ga. 721 (2001).
A defendant's motion to quash an indictment which causes the State to seek a new indictment waives the demand as to the first indictment only. Tyner v. State, 298 Ga. App. 42 (2009). The defendant must file a new speedy trial demand on the new indictment. Willingham v. State, 232 Ga. App. 244 (1998). A lawyer's announcement that the lawyer is not adopting the defendant's pro se speedy trial demand constitutes a waiver. Works v. State, 301 Ga. App. 108 (2009).
The defendant's failure to be present due to his incarceration in state custody is not a waiver. Gifford v. State, 301 Ga. App. 50 (2009); State v. Collins, 201 Ga. App. 500 (1991).
A defendant is generally entitled to seven days notice before trial. Uniform Superior Court Rule 32.1. However, when a defendant files a speedy trial demand and if compliance with Rule 32.1's notice requirement would cause a violation of the defendant's right to a speedy trial, then a judge can proceed to trial without the required notice. Clark v. State, 259 Ga. App. 573 (2003); Higuera Hernandez v. State, 289 Ga. 553 (2011); Linkous v. State, 254 Ga. App. 43 (2002). The entry of a nolle prosequi does not prevent a defendant from claiming the benefits of the speedy trial statute. Bond v. State, 212 Ga. App. 608 (1994).
Constitutional Speedy Trial
Both the United States and Georgia Constitutions grant defendants the right to a speedy trial. The constitutional right to a speedy trial applies to delays prior to arrest as well as delays after arrest but prior to trial. Billingslea v. State, 311 Ga. App. 490 (2011).
To find a constitutional violation where the delay is prior to arrest and indictment, the judge must find that: (1) the delay caused actual prejudice to the defense; and (2) the delay was the product of deliberate action by the prosecutor designed to gain a tactical advantage. Hill v. State, 312 Ga. App. 12 (2011); Billingslea v. State, 311 Ga. App. 490 (2011); Wooten v. State, 262 Ga. 876 (1993).
An alleged violation of the constitutional right to speedy trial after arrest must be analyzed using the factors set forth in Barker v. Wingo, 407 U.S. 514 (1972). The four factors under the Barker test are: (1) the length of the delay; (2) the reasons for the delay and whether the delay is attributable to the State or defense; (3) the defendant's assertion of the right to a speedy trial; and (4) the prejudice to the defendant. Ruffin v. State, 284 Ga. 52 (2008). The factors should be considered together in a balancing test of the conduct of the prosecution and the defendant. Before getting to the four factors, the judge must first determine if the delay is presumed to be prejudicial thus requiring further analysis. Harrison v. State, 311 Ga. App. 787 (2011). Delay is measured from arrest to trial or to the date on which a defendant's speedy trial motion was granted or denied. State v. Porter, 288 Ga. 524 (2011). A delay of more than one year raises a presumption of prejudice to the defendant and requires further analysis under the Barker test. Hayes v. State, 298 Ga. App. 338 (2009); State v. Pickett, 288 Ga. 674 (2011). If the delay is not presumptively prejudicial the claim of a speedy trial violation fails and no further analysis is required. Carder v. State, 312 Ga. App. 61 (2011).
Length of Delay.
Even though the judge considers the length of time in determining if the amount of delay is presumptively prejudicial, he must also consider the length of delay as one of the four main factors. The question is was the delay uncommonly long. Some delay is a normal part of the criminal justice process. Sechler v. State, 316 Ga. 675 (2012).
Reasons for Delay.
The responsibility for bringing a case promptly to trial rests with the government including trial and appellate judges. Ward v. State, 311 Ga. App. 425 (2011). The weight to be given to the reason for delay depends on the reason given for the delay. The weight can range from deliberate delay (for harassment or coercion to take a plea) to negligence (the complexity of the case, the need for additional investigation, or the State's inability to locate witnesses despite a good faith effort to do so). Deliberate delay is weighed more heavily. Hayes v. State, 298 Ga. App. 338 (2009). Investigative delay is acceptable, but delay undertaken by the government solely to gain tactical advantage over the accused is not acceptable. "Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." United States v. Lovasco, 431 U.S. 783 (1977); Jones v. State, 284 Ga. 320 (2008).
Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay in determining whether the Sixth Amendment has been violated but, they must “nevertheless... be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Singleton v. State, 317 Ga. App. 637 (2012); Strunk v. U.S., 412 U.S. 434 (1973). However, “negligence is entitled to minimal weight against the State only where it results either from the prosecution's inadvertent neglect of the case or from solely administrative factors over which the prosecution has no control, such as overcrowded court dockets or understaffed law enforcement agencies." Ditman v. State, 301 Ga. App. 187 (2009). A determination as to whether a case is being prosecuted with the customary promptness depends upon the particular circumstances of the case. Jackson v. State, 279 Ga. 449 (2005).
"Where no reason appears for a delay, the delay must be treated as caused by the negligence of the State in bringing the case to trial." Brannen v. State, 274 Ga. 454 (2001); Bell v. State, 287 Ga. App. 300 (2007).
Even though delay caused by negligence is weighed less heavily than intentional delay, delay due to the negligence of the State can still be weighed heavily against the State. State v. Brown, 315 Ga. App. 544 (2012).
Assertion of the Right.
Because a defendant may benefit by delaying a trial, a defendant has a responsibility to assert his right to a speedy trial. Ward v. State, 311 Ga. App. 425 (2011); Hester v. State, 268 Ga. App. 94 (2004). A defendant does not have to wait until an indictment is returned in order to make a demand for speedy trial under the constitution. State v. Brown, 315 Ga. App. 544 72 (2012). The defendant can file a speedy trial demand under the constitution upon arrest. Glidwell v. State, 169 Ga. App. 858 (1984). The filing of a speedy trial demand is not required before a defendant can file a plea in bar or motion to dismiss for failure to have a speedy trial on constitutional grounds. State v. White, 282 Ga. 859 (2008).
The judge has the discretion to give less weight to this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel. State v. Brown, 315 Ga. App. 544 (2012); State v. Gleaton, 288 Ga. 373 (2010). Also, a defendant cannot be faulted for demanding that the State comply with its discovery obligations before asserting the right to a speedy trial. State v. Shirley, 311 Ga. App. 141 (2011); State v. Reimers, 310 Ga. App. 887 (2011); State v. Shirley, 311 Ga. App. 141 (2011); State v. Ivory, 304 Ga. App. 859 (2010). But see Williams v. State, 290 Ga. 24 (2011)(defendant cannot suggest that he could not assert his right to a speedy trial because discovery was not complete); Williams v. State, 300 Ga. App. 797 (2009).
Objecting to the State's request for a continuance or announcing ready for trial is not considered asserting the right to a speedy trial. Miller v. State, 313 Ga. App. 552 (2012); Brannen v. State, 274 Ga. 454 (2001). A motion to dismiss an indictment on speedy trial grounds that does not request an immediate trial is not a demand for trial and is not considered an assertion of the right under the Barker analysis. State v. Lively, 155 Ga. App. 402 (1980).
Prejudice to the Defendant.
The prejudice factor weighs most heavily in determining whether a defendant's constitutional rights have been violated. Simmons v. State, 290 Ga. App. 315 (2008). In evaluating any prejudice to the defendant, the judge must consider: (1) oppressive pretrial incarceration; (2) anxiety and concern to the defendant; and (3) the possibility of harm to the defense. The third factor is the most serious “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Harris v. State, 284 Ga. 455 (2008).
The fact that a defendant is incarcerated on other charges may compound the concerns of prejudice. Johnson v. State, 313 GA. APP. 895 (2012). Simply saying that memories have faded is not sufficient prejudice. Stewart v. State, 310 GA. App. 551 (2011); Lambert v. State, 302 Ga. App. 573 (2010). Further, difficulties such as the loss of employment, the break-up of a marriage, and financial difficulties, while "certainly associated with the fact of a defendant's arrest and prosecution, must be shown to be specifically caused by the delay in the defendant's prosecution.” Simmons v. State, 304 Ga. App. 39 (2010); Jackson v. State, 279 Ga. 449 (2005). In order to show prejudice as a result of the unavailability of a witness, a defendant has to show that the witness could supply material evidence. Williams v. State, 290 Ga. 24 (2011). The death of a witness does not automatically show prejudice. Hill v. State, 312 Ga. App. 12 (2011).
Because of the difficulty of proving specific prejudice due to the passage of time, the U.S. Supreme Court has explained that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a claim of a speedy trial violation without regard to the other Barker factors, it is part of the mix of relevant facts, and its importance increases with the length of delay. Doggett v. United States, 505 U.S. 647 (1992). The presumption of prejudice addressed in Barker strengthens with the passage of time and, as the delay increases, less specific harm need be demonstrated to conclude that the delay is prejudicial. State v. Redding, 274 Ga. 831 (2002). Williams v. State, 279 Ga. 106 (2005); State v. Gleaton, 288 Ga. 373 (2010). In short, the extent to which a defendant must prove prejudice from a delay in prosecution is directly related to the government's reasonableness in its pursuit of that defendant's case. Moore v. State, 294 Ga. App. 570 (2008).
Georgia courts have found that a delay of five years or more may lead to a finding of actual prejudice relieving the defendant of having to show specific prejudice in his case. In determining whether a pre-trial delay gives rise to a presumption of actual prejudice, the judge must examine the delay relative to all other factors, including the complexity of the case and the evidence existing on the date the State initiated the prosecution.
In a case involving a defendant's constitutional right to a speedy trial, it is necessary for the judge to enter findings of fact and conclusions of law consistent with Barker in the order granting or denying the defendant's motion. McGowan v. State, 303 Ga. App. 873 (2010). A defendant may appeal from the judge's pretrial denial of the motion to dismiss or plea in bar based upon the alleged denial of the right to a speedy trial. Johnson v. State, 313 Ga. App. 895 (2012); Callaway v. State, 258 Ga. App. 118 (2002). The State may appeal the granting of an acquittal based upon the denial of a speedy trial right. State v. Benton, 246 Ga. 132 (1980).
Interstate Detainer Act
A detainer is a written instrument executed by a prosecuting officer to a facility requesting that the facility retain custody of an inmate to deliver the inmate to the requesting authority to stand trial upon a pending indictment. O.C.G.A. § 42-6-1 (3). A detainer cannot be based upon an arrest warrant. Denson v. State,317 Ga. App. 456 (2012); State v. Carlton, 276 Ga. 693 (2003).
The Interstate Agreement on Detainers (IAD) contemplates that if a person is imprisoned in a penal or correctional institution of a party state, and there is pending an untried indictment against him in another party state for which a detainer has been lodged, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint, provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. Further, the request of the prisoner shall be accompanied by the certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. In addition, The written notice and request for final disposition . . . shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail or statutory overnight delivery, return receipt requested. "The right of a prisoner to be tried within 180 days accrues only after the precise operational procedures set forth in the IAD are completely satisfied." State v. McCarter, 314 Ga. App. 542 (2012); O.C.G.A. § 42-6-20.