Birts v. State , 192 Ga. App. 476 ( 1989 )

Deen, Presiding Judge,

dissenting.

The trial court found in part that “[t]he Order of June 16, 1988 is affirmative evidence, however, of Defendant’s voluntary absence from Court and a reflection of the Solicitor’s reliance upon such absence as a waiver of Defendant’s rights pursuant to O.C.G.A. § 17-7-170.” (Emphasis supplied.) The court further found “[t]he failure of the instant case to be tried during the May and July terms was the result of: i) Defendant’s filing the demand after the May trial calendar had been published; ii) Defendant’s voluntary absence by virtue of his attorney’s leave of absence for all but three of the ten days remaining in the May and July terms of Court scheduled for Criminal Jury trials; iii) Counsel’s representation of defendants in three other cases the week of July 18, 1988, the processing of which depleted the balance of the trial week, making counsel just as unavailable for the trial of this case as if he were trying a case in another jurisdiction and unavailable due to such conflict.”

In my opinion, the findings of the trial court were not clearly erroneous, and I would affirm the judgment denying “absolute discharge and acquittal” for failure of speedy trial.