State v. King, 51460
| Decision Date | 21 November 1975 |
| Docket Number | No. 51460,No. 3,51460,3 |
| Citation | 137 Ga.App. 26,222 S.E.2d 859 |
| Parties | The STATE v. R. L. KING et al |
| Court | Georgia Court of Appeals |
Richard E. Allen, Dist. Atty., Sam B. Sibley, Jr., Asst. Dist. Atty., Augusta, for appellant.
Albert G. Ingram, Augusta, for appellees.
Defendants were indicted for criminal attempt to steal a motor vehicle on February 7, 1973; indictment was returned at the May term, 1973, defendants were arraigned on May 13, 1973, and pleaded not guilty. Thereafter defendants were out on bond but no effort was made to bring defendants to trial. Defendants did not make a written demand for trial.
After 27 months' delay, defendants filed their plea in bar and alleged they had been denied due process under the 6th and 14th Amendments to the Constitution of the United States; and prayed that the cases against them be dismissed. Their motion was granted and the state appeals. Held:
1. No written request for trial is necessary. In Blevins v. State, 113 Ga.App. 413, 148 S.E.2d 192 and at page 416, the Court of Appeals, speaking through Judge Hall, addressed itself to the question of whether a written demand for trial is the only remedy for a defendant charged with crime to use in order to seek his release because he has not been given a speedy trial as guaranteed by the Federal and State Constitutions. Code Ann. §§ 2-105, 1-806, 1-815. At page 416, 148 S.E.2d at page 194 this court holds: (Emphasis supplied.) Also, holding to the same effect, see Sanders v. State, 132 Ga.App. 580, 208 S.E.2d 597 and at top of page 582, 208 S.E.2d 597. In that case, however, the defendant was relying solely on his written demand for trial and did not seek relief under the other methods pointed out therein.
Nothing contrary to the two above decisions by this court is found in Hughes v. State, 228 Ga. 593, 187 S.E.2d 135. A written request was not even discussed. It is held that the case had appeared on the trial calendar twelve times and each time the prosecutor was ready but a continuance was granted because of some action or failure of action by the defendant.
In Treadwell v. State, 233 Ga. 468, 469, 211 S.E.2d 760, 762, the Supreme Court of Georgia quotes approvingly from the case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 and states: 'In Barker v. Wingo, supra, the court rejected the rule that a defendant who fails to demand a speedy trial forever waives his right (to a speedy trial).' Also 233 Ga. at page 469, 211 S.E.2d 760, 762 it spells out the four factors to consider where a speedy trial has not been had as follows: 1. Length of delay. 2. The reason for the delay. 3. The defendant's assertion of his right. 4. Prejudice to the defendant.
2. The basis of the court's decision to dismiss the cases against defendant was that the length of the delay was inexcusable and no reasonable explanation was offered by the district attorney, who stated in his place, that the material witness (prosecutor) was at all times available, but because of the heavy caseload in his office, the case was not brought to trial.
3. Defendants asserted that it had been 27 months since they were arrested and 24 months since they were indicted. There was no denial of these assertions. Defendants also asserted that they had been notified by the state to appear for arraignment on May 13, 1975, which they did, and thereafter they were notified by the state to appear before the Superior Court on May 27, 1975, 'to stand trial' for the offenses charged in the indictment, but at that time and place they were not tried. It does not appear that the state made any showing as to its action in notifying them to appear on May 27, 1975, and in then failing to try them.
4. As to the four factors which the U.S. Supreme Court has said must be considered, we take them up in order.
(1.) The length of delay was 27 months since date of arrest and 24 months since date of indictment....
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State v. Fields
...reversed. PANNELL, P.J., concurs. EVANS, J., concurs specially. EVANS, Judge (concurring specially). In the case of State v. King, 137 Ga.App. 26, 222 S.E.2d 859 this court held, with the opinion being written by Judge Evans, that the trial court properly dismissed the defendant because he ......
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Chambers v. State
...the trial court erred in failing to grant the "Motion for Trial or, in the Alternative, for Dismissal." Relying on State v. King, 137 Ga.App. 26, 222 S.E.2d 859 (1975), which cites Treadwell v. State, 233 Ga. 468, 469, 211 S.E.2d 760 (1975), Chambers argues the factors set forth in Barker v......
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...raise the issue until filing the motion five days prior to retrial. See OCGA §§ 17-7-170; 17-8-21; 17-8-22; 17-8-33; State v. King, 137 Ga.App. 26(1), 222 S.E.2d 859 (1975), and Andrews v. State, 175 Ga.App. 22, 332 S.E.2d 299 (1985). His delay in asserting his rights is a factor which weig......
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