State v. Moore , 207 Ga. App. 677 ( 1993 )

Beasley, Judge,

dissenting.

Defendant’s demand for trial was effective May 21, 1991, when it was approved by the court. OCGA § 17-7-171 (a). This was during the February term, as the May term did not begin until the fourth Monday, May 27. OCGA § 15-6-3 (24) (D). Because defendant was in the custody of the Department of Corrections, the court on July 25 ordered his production in court “immediately ... for trial preparation ... in his defense.”³ That was during the May term, the first term following the demand. He was not produced. Again during that May term, the court on August 9 ordered his production on August 12 because he was “needed ... as a witness ... in the defense.” He was not produced.

On September 4, during the next term, which began August 26, counsel filed another “demand” which in effect was a reminder of the court-approved demand of May 21. The August term passed with no production order and no call of the case for trial.

Finally, on February 4, near the end of the November term, the court ordered the production of defendant “for a hearing” on February 10, still within the November term. Defendant was not produced and no hearing was held.

On February 24, the first day of the February 1992 term, defendant filed a motion to dismiss the indictment for want of a speedy trial. This was in the fourth term following the term in which the demand became effective a whole year earlier. Production orders had been entered for defendant’s production during both the May and August 1991 terms, which were the two regular terms after the term at which the demand was effectively filed. The inaction of the State prevented him in each instance from being present to announce ready. Certainly his counsel could not do so, as trial could not commence without him. Moreover, the State never called the case for trial.

I agree that the State cannot prevent defendant from fulfilling the requirements for invoking his right to a speedy trial under OCGA § 17-7-171.

3 The order is part of the record in the case as certified by the Clerk.