Rice v. State , 264 Ga. 846 ( 1995 )

Fletcher, Justice.

Rice was indicted in Fulton County on August 31, 1993 for murder, felony murder and aggravated assault in the death of Paul York on May 2, 1993. Rice’s counsel filed a speedy trial demand on his behalf in the September-October term on October 21, 1993. Two and a half weeks later in the November-December term, Rice’s case appeared on the trial calendar. His counsel asserted that she was not ready for trial and filed a motion for a one-month continuance. The trial court granted the motion that day and held that the filing of the motion for continuance served as a waiver of the speedy trial demand. Rice was not tried within that term (the continuance expired while time remained in that term) or in the next succeeding term, though jurors were impaneled and he announced ready. Rice filed a motion for discharge and acquittal, which was denied. He appeals from the denial of his motion. We hold that any continuance granted at the defendant’s request will operate as a waiver of a speedy trial demand under OCGA § 17-7-171, and we therefore affirm the trial court.

OCGA § 17-7-171 (b) requires discharge and acquittal if a defendant in a capital case is not tried within the second term following his demand for speedy trial, provided that the defendant is “present in court announcing ready for trial.” Rice contends that because the one-month continuance did not take the case outside the term, he did not waive his speedy trial demand and the failure to try him within the second term of court requires his acquittal. Rice, however, relies on cases decided under OCGA § 17-7-170, which is only applicable to prosecutions charging non-capital offenses, and does not contain the requirement that the defendant be in court announcing ready for trial. See, e.g., Ciprotti v. State, 190 Ga. App. 639, 641 (379 SE2d 802) (1989) (Pope, J., concurring specially); see also Walker v. State, 89 Ga. 482 (15 SE 553) (1892) (misdemeanor prosecution). The rule stated by these cases is applicable only to a demand filed under OCGA § 17-7-170, and not to a demand under § 17-7-171.

The right to a speedy trial under OCGA § 17-7-171 requires strict compliance with the statutory requirements and may be waived by a defendant’s actions. See Mize v. State, 262 Ga. 489, 490 (422 SE2d 180) (1992) (right to speedy trial under § 17-7-171 may be waived by defendant’s affirmative conduct or failure to act). A failure to comply with the express language of OCGA § 17-7-171 (b) that the defendant be in court “announcing ready for trial” following the filing of a speedy trial demand operates as a waiver of that demand.¹ Any request for a continuance following the filing of a speedy trial demand necessarily means that the defendant will not be in court “announcing ready for trial” and the continuance, if granted, will result in a waiver of the demand in a capital case.²

Judgment affirmed.

All the Justices concur, except Benham, P. J., and Carley, J., who concur specially.

1 Any contrary suggestion in Dalton v. State, 263 Ga. 138, 139, n. 2 (429 SE2d 89) (1993) is disapproved.

2 Of course, a continuance granted at the state’s request or entered sua sponte by the trial court will not operate as a waiver on the part of the defendant. Additionally, a temporary or slight postponement of trial for a few days, as opposed to a continuance, will not operate as a waiver when it is clear that the postponement is not to be considered a continuance.