McKnight v. State , 215 Ga. App. 899 ( 1994 )

Smith, Judge,

dissenting.

I respectfully dissent. While I agree that we should not attempt judicial legislation of civility and courtesy, the distinction made by the majority between OCGA § 17-7-170 and OCGA § 17-7-171 (b) gives cause for concern. The potential for abuse in an expansive reading of the majority’s decision and a restrictive reading of OCGA § 17-7-170 is amply demonstrated by the facts of this case. Waiver of a demand for trial may not occur under circumstances in which counsel justifiably believes that he or she is excused from the courtroom or “on call.” However, the majority’s decision could be construed as authority for counsel to “disappear,” particularly in the final days of a term of court. Counsel could then insist that the demand remains effective, that the statutory time has expired, and that the defendant is entitled to discharge and acquittal. This places the trial court in an untenable position between the conflicting interests of jury and court administration, a defendant’s demand for trial, and the end of the term. The only possibilities in such a situation appear to be a trial in the absence of defendant’s counsel or an acquittal by operation of law.

The potential for harm to the effective administration of justice on the trial court level persuades me that it is time for reconsideration of State v. Collins, 201 Ga. App. 500 (411 SE2d 546) (1991) and its progeny. That decision overruled a long line of cases requiring the defendant’s physical presence in the trial court to support a trial demand under OCGA § 17-7-170. 201 Ga. App. at 501. Judge Andrews’s special concurrence in Collins thoroughly outlined the cases, legislative history, and principles of statutory construction which point to the inclusion under OCGA § 17-7-170 of the requirement that the defendant be present in court announcing ready and requesting trial. 201 Ga. App. at 501-506. Collins’ removal of this requirement has had unanticipated consequences, and it should now be overruled.

Decided December 5, 1994 Reconsideration denied December 20, 1994 John T. Strauss, for appellant. Alan A. Cook, District Attorney, for appellee.

Given this requirement of actual presence, readiness, and request for trial, the trial court did not err in denying defendant’s motion to quash the indictments and plea in bar. “Because the penalty imposed by this statute against the state is so great, it must be strictly construed.” Day v. State, 187 Ga. App. 175, 176 (369 SE2d 796) (1988). While the conduct of the assistant district attorney was at best careless and at worst reprehensible, defense counsel bears some responsibility by failing to communicate with the trial court directly, relying instead upon conversations through his paralegal and a secretary in the district attorney’s office. However, the consideration of such facts in ruling on the possible waiver of a demand for trial will lead, ultimately, to “mini-trials” in which the trial court determines the validity and strength of various excuses for an absence from the calendar call. Attorneys, secretaries, and paralegals will be examined and cross-examined regarding alleged telephone messages, mechanical breakdowns, illnesses, and acts of God. The successful assertion of such an excuse will, in some circumstances, result in a discharge and acquittal even though there was no possibility of trial.

The severe penalty imposed upon the State for failure to try a case within the two terms provided by OCGA § 17-7-170 demands a “bright line” rule for determining whether a defendant can assert a demand for trial and obtain a discharge and acquittal. Accordingly, I would affirm the trial court’s denial of defendant’s motion to quash and plea in bar.

I am authorized to state that Presiding Judge Birdsong, Presiding Judge Beasley and Judge Andrews join in this dissent.