Smith v. State , 192 Ga. App. 604 ( 1989 )

Benham, Judge.

This appeal is from the trial court’s denial of appellant’s motion for discharge and acquittal. Appellant filed his demand for trial under OCGA § 17-7-170 on March 24, 1988, during the March term of court. A jury was impaneled (April 4-6) during the March term, after his demand, and appellant was not tried during that term. Nor was he tried during the next succeeding term (May term) in which a jury was impaneled (May 2-4). “[W]here demand is made and two terms of court expire, .at both of which juries are impaneled and qualified to try the defendant, then discharge and acquittal must follow. [Cits.]” Bush v. State, 152 Ga. App. 598, 599 (263 SE2d 499) (1979). “[T]he defendant’s discharge takes place by operation of law.” Thornton v. State, 7 Ga. App. 752, 753 (1) (67 SE 1055) (1910). (Emphasis supplied.) “[N]o motion to acquit is necessary, but the discharge of the accused results automatically, by operation of law. . . .” Bishop v. State, 11 Ga. App. 296, 297 (75 SE 165) (1912). (Emphasis supplied.) Thus, appellant was automatically discharged at the close of the May term. Therefore, since appellant was automatically discharged at the close of the May term, the State’s reliance on appellant’s September term purported waiver of his demand for trial is misplaced.

The dissent is based on the proposition that appellant waived his demand for speedy trial by filing a motion to suppress. However, the quote from State v. Waters, 170 Ga. App. 505 (3) (317 SE2d 614) (1984), on which the dissent is based omits a crucial portion of the ruling in Waters. A more complete reading of the sentence is as follows: “[B]y filing a motion to suppress, a defendant effectively consents to a delay of his trial pending final resolution of the issue of evidentiary admissibility, if the motion is granted and the State elects to have that appellate determination made.” Id. It is readily apparent from reading that language that there is no waiver unless the motion is granted and the State elects to appeal. In Waters, the motion was granted and the State appealed; in the present case, the motion was not even heard. Appellant did nothing to delay bringing his case to trial and the record is devoid of any waiver by him of his demand for trial.

The trial court’s denial of appellant’s motion for discharge and acquittal was error.

Judgment reversed.

Carley, C. J., Been, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. McMurray, P. J., concurs in judgment only. Beasley, J., dissents.