Jones v. State, No. S01G1816

• Decision Date: 13 January 2003
• Docket Number: No. S01G1816, No. S02G1376., No. S02G1032
• Citation: 575 S.E.2d 456,276 Ga. 171
• Parties: JONES v. The STATE. Linkous v. The State. Mimms v. The State.
• Court: Georgia Supreme Court

575 S.E.2d 456

276 Ga. 171

JONES v. The STATE.

Linkous v. The State.

Mimms v. The State.

Nos. S01G1816, S02G1032, S02G1376.

Supreme Court of Georgia.

January 13, 2003.

Reconsideration Denied February 10, 2003.

Monte K. Davis, Atlanta, for appellant (case nos. S01G1816, S02G1032).

Gwendolyn R. Keyes, Solicitor-General, Barry Morgan, Solicitor-General, Heather C. Waters, Thomas E. Griner, Mirza Qader Ali Baig, Asst. Solicitors-General, for appellee (case nos. S01G1816, S02G1032).

Monte K. Davis, George A. Stein, Atlanta, for appellant (case no. S02G1376).

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Asst. Solicitor-General, for appellee (case no. S02G1376).

CARLEY, Justice.

These three unrelated criminal cases are consolidated for purposes of this appeal. The Court of Appeals affirmed the judgment in each of them, extensively and chronologically detailing their respective facts in separate opinions. Jones v. State, 250 Ga.App. 829, 553 S.E.2d 24 (2001); Linkous v. State, 254 Ga.App. 43, 561 S.E.2d 128 (2002); Mimms v. State, 254 Ga.App. 483, 562 S.E.2d 754 (2002). We granted certiorari to construe Uniform State Court Rules 16.1 and 16.2 regarding an attorney's leaves of absence and to consider the effect of those rules on a demand for speedy trial.

In each case, the same attorney represented the defendant and filed at least one notice of leave of absence. Each notice encompassed several different periods of time totaling more than 30 days. In both Jones and Linkous, defense counsel also filed several pre-trial motions and a demand for speedy trial pursuant to OCGA § 17-7-170. In Linkous, the defense attorney refused to report for trial on one of the dates specified in the notice of leave of absence. Jones and Linkous each appeared personally in court without their attorney and signed a notice rescheduling his case for a date subsequent to the close of the term by which each case had to be tried in order to comply with the speedy trial statute. The trial court in each of those two cases denied a motion for discharge and acquittal. In Mimms, defense counsel entered an appearance after the defendant was convicted. When Mimms' lawyer did not appear for a hearing on the motion for new trial during a purported leave of absence, the trial court denied that motion without a hearing.

In Jones v. State, supra at 831-832, 553 S.E.2d 24, the Court of Appeals held that defense conflicts and leaves of absence resulted in only a short window being available to try the case during the second term and waived the speedy trial demand, and that Jones consented to the resetting of his trial outside the second term. In Linkous v. State, supra at 46-47, 561 S.E.2d 128, the Court of Appeals rejected the claim that defense counsel's notice of leave of absence absolutely protected the case under Rule 16.1 from being called for trial, because the total leave sought exceeded 30 days in one year. In Mimms v. State, supra at 485-486(1), 562 S.E.2d 754, the Court of Appeals cited Linkous and similarly held that, because the leave requested exceeded 30 days, it was not automatic under Rule 16.1, but rather within the trial court's discretion under Rule 16.2.

1. Uniform State Court Rules 16.1 and 16.2 are identical to the Uniform Superior Court Rules of the same numbers. In pertinent part, Rule 16.1 entitles an attorney to a leave of absence for 30 days or less by submitting a written notice, a copy of which is sent to the judge and all opposing counsel. Unless opposing counsel files a written objection within 10 days or the trial court denies the leave, it stands granted without entry of an order. Rule 16.2, on the other hand, permits a written application for leaves of absence for more than 30 calendar days, which is to be served on opposing counsel at least 10 days prior to submission to the trial judge. Such application is addressed to the discretion of the trial court. Thus, under Rule 16.2, "a leave of absence requesting in excess of 30 days is not automatically granted, but rather is left to the trial court's discretion." Mimms v. State, supra at 485(1), 562 S.E.2d 754.

The Court of Appeals has consistently held, not only in Linkous and Mimms, but also in State v. Dodge, 251 Ga.App. 361, 363(1), 553 S.E.2d 831 (2001), that Rule 16.2 applies whenever the requested leaves of absence exceed 30 days in the aggregate. This construction of the rule is most consistent with its initial language which, rather than utilizing the singular form "leave," uses the phrase "Application for leaves of absence for more than thirty (30) calendar days." The rulings of the Court of Appeals also advance the purpose of Rule 16.2, which is to provide procedural safeguards, beyond those in Rule 16.1, with respect to those requests for leave which have a high potential for interfering with the orderly scheduling of cases. Leaves of absence for a total of more than 30 non-consecutive days have a potential for such interference which is comparable to a single leave of more than 30 consecutive days. In either instance, the precautions set forth in Rule 16.2 are equally appropriate. The mere fact that some attorneys, in response to this construction of the rule, may request shorter leaves of absence more frequently does not defeat the purpose of the rule. In that situation, the shorter length of total leave time in each request makes it unlikely that the more lenient procedure of Rule 16.1 will cause the trial court and opposing attorneys to overlook some scheduling dilemma. If an important scheduling consideration is overlooked, the shorter length of total leave time also makes it improbable that the consequences will be serious or irreparable. Accordingly, the Court of Appeals correctly held that "a notice of leave of absence covering more than 30 calendar days, whether all at the same time or over several time periods, falls under [Rule] 16.2, not [Rule] 16.1. [Cits.]" Mimms v. State, supra at 485(1), 562 S.E.2d 754.

Because the request for leave of absence in Mimms was for more than 30 days and was never granted by the trial court, "at the time of the hearing on the motion for new trial, no valid leave of absence was in place." Mimms v. State, supra at 485(1), 562 S.E.2d 754. In Linkous, the requested leave time also exceeded 30 days, but there is no evidence that defense counsel gave the State the requisite 10 days' notice or that the application was ever submitted to or ruled upon by the appropriate judge. "Any application for leave not filed in conformance with [Rules 16.1 and 16.2] will be denied." Rule 16.4. Thus, the Court of Appeals correctly determined that, "by operation of [Rule] 16.4, counsel's application for leave stood denied. [Cit.]" Linkous v. State, supra at 47, 561 S.E.2d 128. Although the Court of Appeals did not rely on the invalidity of the notice of leave of absence in Jones, the total requested leave exceeded 30 days, but was never granted by the trial court pursuant to the procedural requirements of Rule 16.2. Therefore, no valid leave of absence was ever in place in any of these three cases.

The remaining question is whether Appellants waived certain rights as a result of reliance on their attorney's invalid leaves of absence. In Mimms, defense counsel was aware that the hearing on the motion for new trial was scheduled during his purported leave of absence, but he failed to notify the court or to appear. Because the only reason for this failure to appear was the unauthorized leave of absence, the trial court did not err in finding that Mimms' lawyer waived the right to a hearing on the motion for new trial. Mimms v. State, supra at 485-486(1), 562 S.E.2d 754; Dunn v. State, 172 Ga.App. 146(1), 322 S.E.2d 349 (1984). In Jones and Linkous, we must determine whether defense counsel waived the defendant's statutory speedy trial demand.

Waiver may result from any act that shows a defendant affirmatively consented to passing the case until a later term. [Cits.] When a defendant performs any affirmative act, he is expected to have accepted all of the consequences that arise from the action. [Cits.] .... Georgia courts have sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal ([cits.]) as well as dilution of the right to a

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