Turner v. State, S98A0560

• Decision Date: 13 April 1998
• Docket Number: No. S98A0560,S98A0560
• Citation: 269 Ga. 392,497 S.E.2d 560
• Parties: , 98 FCDR 1276 TURNER v. The STATE.
• Court: Georgia Supreme Court

Page 560

497 S.E.2d 560

269 Ga. 392, 98 FCDR 1276

TURNER v. The STATE.

No. S98A0560.

Supreme Court of Georgia.

April 13, 1998.

James A. Meaney III, Hatcher, Johnson, Meaney & Gothard, Chattanooga, TN, for James Steven Turner.

Herbert E. Franklin, Jr., Dist. Atty., LaFayette, for the State.

THOMPSON, Justice.

James Steven Turner brings this appeal from the denial of his motion for discharge and acquittal following a demand for a speedy trial.

The stipulated facts show that Turner was indicted during the 1995 September term of the Catoosa Superior Court and charged with malice murder in the 1979 shooting death of James M. Corvin. He filed a demand for speedy trial during the September 1995 term of court. ¹ Catoosa County has two annual terms of court, commencing on the first Monday in March and the second Monday in September of each year. There were no jurors empaneled and qualified to try Turner during the remainder of the September 1995 term.

During the March 1996 term, which followed, Turner was present in court and announced ready for trial and there were jurors empaneled and qualified to try his case.

Turner and the State agreed that the case would not be sounded during the September 1996 term; and a written consent order was entered, as follows:

It appearing to the Court that the parties have agreed to the entry of this order, it is hereby CONSIDERED, ORDERED AND ADJUDGED that the trial of this case is hereby continued from the September 1996 term of the Superior Court of Catoosa County. It is expressly understood that the defendant will not insist on his demand for trial during the September 1996 term and that the State will not attempt to sound the case for trial during the term. It is the intent of this order that the defendant's demand for trial will not be effective for the present term, but shall remain in full force and effect for the March 1997 and September 1997 terms of the Superior Court of Catoosa County.

In accordance with the order, Turner was neither present in court nor did he announce ready for trial during the September 1996 term. Nor did the State sound the case or announce ready for trial, although there were jurors impaneled and qualified during that term.

Turner was present and he announced ready for trial during the March 1997 term, and there were jurors empaneled and qualified to try him. The State did not sound the case for trial.

During the September 1997 term, Turner made an oral motion for discharge and acquittal, asserting that the consent order had the effect of "skipping" the September 1996 term, that two terms had run at the conclusion of the March 1997 term, and that he is entitled to acquittal under OCGA § 17-7-171(b). ² The motion was denied and Turner brought this direct appeal. Franks v. State, 266 Ga. 707, 469 S.E.2d 651 (1996); Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).

We need not determine whether Turner's consent to the order constituted a request for a continuance or other affirmative conduct on his part as would operate as a waiver of his speedy trial demand. See Rice v. State, 264 Ga. 846, 452 S.E.2d 492 (1995); Mize v. State, 262 Ga. 489, 490, 422 S.E.2d 180 (1992). We look only to the plain language of the order which allows the State two terms beyond the September 1996 term in which to comply with the speedy trial demand.

Although Turner asserts a contrary interpretation, the burden is on him as the party asserting error to show it affirmatively by the record. See generally Henderson v. State, 251 Ga. 398, 402(2), 306 S.E.2d 645 (1983). Despite the fact that the order denying discharge and acquittal shows that a hearing was held on the motion, defendant elected to...