Durham v. State
Decision Date | 14 May 2018 |
Docket Number | A18A0098 |
Citation | 814 S.E.2d 813 |
Parties | DURHAM v. The STATE. |
Court | Georgia Court of Appeals |
Debra Kay Jefferson, Lawrenceville, for Appellant.
Layla Hinton Zon, Randal Matthew McGinley, for Appellee.
Phipps, Senior Appellate Court Judge. On appeal from his convictions for rape and child molestation, Gary Durham argues that the trial court erred in denying his plea in bar asserting a violation of his constitutional speedy-trial right and in failing to grant his motion for mistrial. Durham also argues that the evidence was insufficient. Because the record shows that the trial court never entered a written order including findings of fact and conclusions of law as to Durham’s claimed speedy-trial violation, we vacate Durham’s conviction and remand for entry of an order including proper findings in accordance with Higgenbottom v. State , 288 Ga. 429, 704 S.E.2d 786 (2011), and Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
Higgenbottom , supra at 430, 704 S.E.2d 786 (citation and punctuation omitted).
None of the factors are
Id., quoting Barker , supra at 533, 92 S.Ct. 2182.
The relevant portions of the record show that on December 9, 2009, Durham was arrested on warrants charging him with rape and child molestation alleged to have occurred between September 2004 and June 2007. In April 2012, after an investigation, Durham was indicted for rape, solicitation of sodomy of a child, and child molestation of two different victims between September 2004 and June 2007. At a pretrial hearing held on January 28, 2016, the trial court inquired why the State had taken over six years to get the case to trial and directed Durham to file a motion asserting that his constitutional right to a speedy trial had been violated. On the same day, Durham filed a plea in bar asserting a violation of his constitutional speedy-trial right.
On the morning of trial, the trial court made oral findings including that the six-year delay between arrest and trial was presumptively prejudicial, that the delay was the result of the State’s ordinary negligence, that Durham had failed to assert his right in a timely way, and that Durham had not been unduly prejudiced by the delay. The trial court therefore denied the plea in bar, but did not file a written order containing its findings of fact and conclusions of law. After a jury found Durham guilty of rape and child molestation, he was convicted and sentenced to life in prison. Durham’s motion for new trial was denied.1
1. This record shows that this trial court never entered an order containing findings of fact and conclusions of law required by Barkerand Higgenbottom . "Absent such findings, there is no exercise of discretion for this Court to review." Higgenbottom , 288 Ga. at 431, 704 S.E.2d 786 (citation omitted). Although this Court once suggested that oral findings on the record could be enough to satisfy Barker , see Butler v. State , 309 Ga. App. 86, 87–88, 709 S.E.2d 293 (2011) (" Butler I "), our Supreme Court later vacated that opinion and required ...
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Durham v. State
...a violation of his right to a speedy trial. We have twice remanded this case to the trial court, first in Durham v. State , 345 Ga. App. 687, 814 S.E.2d 813 (2018) (" Durham I ") and second in Durham v. State , 350 Ga. App. 859, 830 S.E.2d 359 (2019) (" Durham II "), based on insufficient f......
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Durham v. State, A19A0673
...Zon, Randal Matthew McGinley, for Appellee. Brown, Judge. Following the remand of this case to the trial court in Durham v. State , 345 Ga. App. 687, 814 S.E.2d 813 (2018), the trial court entered a written order denying Gary Durham’s plea in bar asserting a violation of his right to a spee......