Sykes v. State, A98A2123.
| Decision Date | 03 February 1999 |
| Docket Number | No. A98A2123.,A98A2123. |
| Citation | 236 Ga. App. 518,511 S.E.2d 566 |
| Parties | SYKES v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Deering & Associates, Patrick D. Deering, Atlanta, for appellant.
Barry E. Morgan, Solicitor, Lawton W. Scott, Jessica K. Moss, Marsha S. Lake, Assistant Solicitors, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
After Frank Sykes was charged with driving under the influence of alcohol, driving with an invalid license, speeding, improper passing, and improper lane change, he filed a demand for speedy trial. Sykes now appeals the denial of his motion for discharge and acquittal.
The traffic citations Sykes received required him to appear in court on December 2, 1997, and on that date his case was scheduled for arraignment on January 7, 1998. On December 18, 1997, Sykes filed a demand for trial under OCGA § 17-7-170. The demand was recorded by the clerk of court and served on the solicitor general by registered mail on December 18, 1997.
Subsequently, Sykes' defense counsel received a notice to appear for a jury trial on January 2, 1998, but because Sykes did not receive formal personal notice of trial from the court, he was not present in court with his counsel. The clerk of court mailed the notice to Sykes at an address Sykes provided for bond purposes which did not include Sykes' apartment number. Even though Sykes allegedly did not appear because of this purported deficient notice, Uniform Superior Court Rule ("USCR") 32.1 provides that notice shall be given to the "defendant at the last address indicated in the court records...." The clerk's records had Sykes' correct address from his traffic citations, but the incorrect address on the bond application, provided by Sykes, was the last address in the court's records. Sykes' defense counsel objected to proceeding on January 2, 1998, because Sykes was not present in court and could not be tried in absentia because he had not been arraigned.
Later, Sykes received a notice setting the case for a hearing on motions on February 25 with a jury trial set for April 17, 1998. Sykes waived arraignment on January 23, 1998. On February 18, the State notified Sykes of its intent to present evidence of two prior DUIs as similar transactions.
At the scheduled motion hearing on February 25, neither Sykes nor his counsel appeared. After reviewing the record, the trial court directed an assistant solicitor to notify Sykes' counsel at approximately 4:00 p.m. on February 25 that the case would be called for trial at 9:00 a.m. the next day to accommodate Sykes' demand for speedy trial. The State telephoned the defense counsel's office on February 25 and advised co-counsel the case would be called at 9:00 a.m. on February 26. On February 26, the trial court noted on the record that Sykes had filed a demand for speedy trial, the case must be tried before the end of the January/February term which would be Saturday, February 28. The trial court also noted that Sykes and his counsel did not appear in court at 9:00 a.m. ready for trial.
At a hearing later that day, counsel from the firm of Sykes' defense counsel re-stated the circumstances of his notification of the call of the case, stated Sykes has not received personal notice of the trial date, and argued the notice received on February 25 was unreasonable and less than the notice to which a defendant is entitled under USCR 32.1. The trial court responded that in the circumstances of this case Sykes was not entitled to that notice.
Although Sykes' counsel did not request a continuance, when the court called the case for trial, counsel advised the court that Sykes was out of the state. Sykes' lead counsel also was not present in court because he was "unavailable." Although the trial court allowed defense counsel to withdraw a waiver of the speedy trial demand that was apparently filed erroneously, the trial court nevertheless ruled that Sykes' failure to appear in court waived his speedy trial demand. The trial court set the case for trial on April 17, 1998.
Sykes then filed a motion for discharge and acquittal. Sykes and his lead counsel were present to argue the motion. Sykes contended that he was entitled to discharge and acquittal because the case was not tried by the end of the January/February term of court. He maintained that he never requested a continuance and did not state that he was not ready for trial. Sykes further contended that under USCR 32.1 he was entitled to personal notice through a written trial calendar at least seven days before the trial date even though there were not enough days remaining in the term for such notice to be provided. He argued the State could have given proper notice had the State merely given the required notice seven days before the end of the term, but it failed to do so. The parties stipulated that jurors were available to try Sykes in the November/December and January/February terms of court.
The trial court reiterated its ruling of February 26, 1998, that by refusing to go forward with the trial on that date Sykes had waived his demand for a speedy trial. Thereafter, Sykes filed this appeal challenging that decision. Held:
1. The State's motion to dismiss the appeal is denied. Sykes was given an extension of time in which to file his enumeration of error and brief.
2. If a defendant who filed a demand for trial under OCGA § 17-7-170(a) is not tried during the term in which the demand was filed or the next succeeding regular term of court and jurors were impaneled and qualified to try the defendant in both terms, the defendant must be absolutely discharged and acquitted. OCGA § 17-7-170(b). If the failure to try the defendant results from a voluntary act of the defendant or the defense counsel which results in a continuance of the case to a time outside the period of the demand, however, discharge and acquittal are not required. Fletcher v. State, 213 Ga.App. 401, 402(1), 445 S.E.2d 279 (1994). In such cases, the defendant will be found to have waived his demand for a speedy trial. Weidlund v. State, 191 Ga.App. 668, 669, 382 S.E.2d 709 (1989). The burden of showing such waiver is on the State. Birts v. State, 192 Ga.App. 476, 477, 385 S.E.2d 120 (1989).
Although Sykes went to great effort to assure that he did not formally request a continuance, requesting a continuance is not the only way to waive a demand for trial. ...
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...for a speedy trial. The burden of showing such waiver is on the State.(Citations omitted; emphasis supplied.) Sykes v. State, 236 Ga.App. 518, 520(2), 511 S.E.2d 566 (1999). Here, Twiggs's counsel announced that the demand for speedy trial was withdrawn, and the record in this case supports......
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Jones v. State, A01A0576.
...of avoiding trial. Georgia courts have sought to guard against manipulation of the trial calendar by defendants seeking automatic acquittal Sykes [v. State10] (defendant waived speedy trial demand by not appearing without justification, when his case was called to trial); Jackson v. State11......
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...to receive from Neal, for the benefit of the child, financial support that reflects the change in custody; Neal cites Sykes v. State, 236 Ga.App. 518, 511 S.E.2d 566 (1999), but it is simply inapposite. That case dealt with a criminal prosecution in which the defendant made a speedy trial d......