                              SECOND DIVISION
                                BARNES, P. J.,
                            BOGGS and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 8, 2016




In the Court of Appeals of Georgia
 A16A0744. THE STATE v. MARSHALL.
 A16A0748. THE STATE v. LUCAS.

      BARNES, Presiding Judge.

      The trial court entered orders of discharge and acquittal in the criminal cases

of Cloyd Marshall and Jessica Lucas on the ground that their statutory rights to a

speedy trial had been violated. The State now appeals, contending that the trial court

erred in ordering the discharge and acquittal of the defendants’ cases because the

defendants waived their statutory demands for a speedy trial. Both criminal cases

involve the same legal question on appeal – whether the defendants waived their

statutory demands for a speedy trial when they received a case management order

with a trial date scheduled outside the term in which they had to be tried, but did not

object to the order. As explained below, we answer that question in the negative

because our precedent clearly establishes that remaining silent and failing to object
is an insufficient affirmative act to waive a defendant’s statutory demand for a speedy

trial. Accordingly, we affirm the orders of discharge and acquittal entered by the trial

court.

         The record reflects that on February 27, 2015, Marshall was indicted in the

Superior Court of Fulton County for false imprisonment, kidnapping, family violence

battery, and cruelty to children, and on March 17, 2015, Lucas was indicted in the

same court for aggravated assault, possession of a firearm during the commission of

a felony, and simple battery.1 Following their indictments, Marshall and Lucas,

through the same appointed counsel, filed statutory demands for speedy trial on

March 24, 2015, and April 3, 2015, respectively.

             Both criminal cases were assigned to the same trial court judge, who

distributed a case management order at Marshall’s preliminary hearing on March 26,

2015, and at Lucas’s preliminary hearing on April 9, 2015. The case management

orders set deadlines for discovery, for the filing of motions, and a date upon which

the trial court would hear motions. The orders also placed the defendants’ cases on




         1
      The two cases are not factually related. v1. 20 (A16A0744); v1. 27
(A16A0748)

                                           2
the August 28, 2015 trial calendar, which was after the deadline for them to be tried

in accordance with their speedy trial demands.

      After the statutory speedy trial deadline had passed, the defendants filed pleas

in bar seeking the dismissal of their cases. The trial court granted the defendants’

motions and entered orders of discharge and acquittal.

      In Case No. A16A0744, the State challenges the trial court’s decision to

discharge and acquit Marshall of his indicted offenses. In Case No. A16A0748, the

State challenges the trial court’s decision to discharge and acquit Lucas of her

indicted offenses.

                                Case No. A16A0744

      1. The trial court committed no error in discharging and acquitting Marshall of

his indicted offenses on statutory speedy trial grounds.

      “Under OCGA 17-7-170, a defendant who has made a proper demand for a

speedy trial is entitled to an automatic discharge without further motion if he is not

tried within the second term of court, provided that a jury is present at each term and

is qualified to try him.” (Citation and punctuation omitted.) Smith v. State, 332 Ga.




                                          3
App. 849, 855 (3) (775 SE2d 211) (2015). See OCGA § 17-7-170 (b).2 However, “[a]

defendant may waive his right to automatic discharge under OCGA § 17-7-170 by

any affirmative action on his part or on the part of his counsel which results in a

continuance of the case to a time outside the period of the demand.” (Citation,

footnote, punctuation, and emphasis omitted.) Thornton v. State, 301 Ga. App. 784,

788 (1) (689 SE2d 361) (2009). See Fisher v. State, 273 Ga. 721, 722 (545 SE2d 895)

(2001) (“Waiver may result from any act that shows a defendant affirmatively

consented to passing the case until a later term.”). The burden is on the State to prove

that the defendant waived his demand for a speedy trial under OCGA § 17-7-170.

Thornton, 301 Ga. App. at 788 (1).

      Fulton County Superior Court has six terms per year, beginning on the first

Monday of January, March, May, July, September, and November. OCGA § 15-6-3

(3). Marshall filed his speedy trial demand during the March 2015 term of court, and

thus the State was required to try him by the end of the May 2015 term, provided that


      2
         OCGA § 17-7-170 (b) provides in relevant part: “If the defendant is not tried
when the demand for speedy trial is made or at the next succeeding regular court term
thereafter, provided that at both court terms there were juries impaneled and qualified
to try the defendant, the defendant shall be absolutely discharged and acquitted of the
offense charged in the indictment or accusation.”


                                           4
juries were impaneled and qualified in both terms. See OCGA § 17-7-170 (b). The

State concedes that juries were properly impaneled and qualified and that Marshall

was not tried during the March or May 2015 terms. Marshall therefore was entitled

to an automatic discharge and acquittal of his indicted offenses, unless he or his

counsel took some affirmative action that waived his statutory demand for a speedy

trial. See OCGA § 17-7-170 (b); Thornton, 301 Ga. App. at 788 (1).

      The State maintains on appeal that Marshall waived his demand for a speedy

trial “by failing to voice any objection” to the case management order, which was

distributed to the parties at the preliminary hearing and which set a trial date outside

the two-term deadline imposed by OCGA § 17-7-170 (b).3 We are unpersuaded

because remaining silent and failing to object are not sufficient affirmative action to

constitute a waiver.

      As we explained in Thornton v. State, 7 Ga. App. 752, 753-754 (67 SE 1055)

(1910),


      3
        Marshall’s preliminary hearing in which the trial court distributed the case
management order was not transcribed, and there is nothing in the record to suggest
that the order was entered with the consultation or agreement of the parties.
Moreover, the State concedes that Marshall “did not explicitly engage in the pre-trial
scheduling entered by the trial court” and that the dates in the case management order
were set by the court.

                                           5
      [t]he defendant, it is true, may waive his right to insist upon a demand.
      If he should absent himself from the court, or should move for a
      continuance, or should agree upon a continuance, or should do any other
      act affirmatively showing an intention not to insist upon his demand, a
      waiver would be implied. However, no such waiver results from mere
      inactivity on his part, provided he does not absent himself from court,
      so that he cannot be tried. The [S]tate is the pursuer. He is the pursued.
      Until the [S]tate moves toward him, he may remain still. If he has
      demanded trial and stands ready for the trial if it comes, he has done all
      that the law requires of him in the way of insistence upon his demand;
      and therefore, if the [S]tate neglects to try him within the time
      prescribed by law, it operates as a conclusive and final abandonment of
      the prosecution.


(Emphasis supplied.)

      Consistent with Thornton, we have held that a defendant does not waive his

statutory demand for speedy trial by “remaining silent and not calling the attention

of the court to the matter thereafter.” (Citations and punctuation omitted.) Parker v.

State, 135 Ga. App. 620, 621 (4) (218 SE2d 324) (1975). See Flagg v. State, 11 Ga.

App. 37, 39 (74 SE 562) (1912) (defendant “may sit mute” after making statutory

speedy trial demand and is entitled to automatic discharge and acquittal if the

deadline for trying him passes, so long as he does not “voluntarily absent [himself]

from the court” and has “done no other act which in law would amount to a waiver

                                          6
of his demand”). Furthermore, in Ballew v. State, 211 Ga. App. 672, 674 (440 SE2d

76) (1994), we held that “[a]lthough defense counsel said nothing when the trial court

announced in his presence that it was continuing the case, we cannot infer under these

circumstances that silence was an affirmative action clearly waiving the requirements

of OCGA § 17-7-170, and a consent to pass the case to a subsequent term.”

      In light of this precedent, Marshall and his counsel’s mere silence and failure

to object to the case management order was not an affirmative act constituting waiver

of the statutory demand for a speedy trial. Compare Ballew, 211 Ga. App. at 673-674

(silence in response to trial court’s continuance announcement was not affirmative

act that waived speedy trial demand), with Cobb v. State, 275 Ga. App. 554, 557 (2)

(621 SE2d 548) (2005) (speedy trial demand was waived where defense counsel

expressly consented to continuance that fell outside deadline imposed by OCGA §

17-7-170), and Spencer v. State, 259 Ga. App. 664, 665-666 (577 SE2d 817) (2003)

(speedy trial demand was waived where defense entered into proposed scheduling

order with State under which the trial fell outside statutory deadline). And nothing in

the limited record before us reflects that Marshall or his counsel’s silence was

accompanied by any other conduct that would indicate consent to the trial date in the

case management order. Accordingly, the trial court did not err in concluding that

                                          7
Marshall had not waived his statutory demand for a speedy trial and that he therefore

was entitled to an automatic discharge and acquittal on statutory speedy trial grounds.

                                Case No. A16A0748

      2. The trial court likewise committed no error in discharging and acquitting

Lucas of her indicted offenses on statutory speedy trial grounds.

      Like Marshall, Lucas filed her statutory demand for speedy trial in the March

2015 term of court, and the State was required to try her by the end of the May 2015

term. See OCGA §§ 15-6-3 (3); 17-7-170 (b). It is undisputed that juries were

properly impaneled and qualified and that Lucas was not tried during the March or

May 2015 terms. Lucas thus was entitled to an automatic discharge and acquittal,

provided that she did not take any affirmative action waiving her statutory demand

for a speedy trial. See OCGA § 17-7-170 (b); Thornton, 301 Ga. App. at 788 (1).

      On appeal, the State raises the same argument that it made with respect to

Marshall, contending that Lucas waived her statutory demand for a speedy trial “by

failing to voice any objection” to the trial date in the case management order.4 The

State’s argument fails for the same reasons discussed supra in Division 1, and the trial


      4
         As was the case with Marshall, Lucas’s preliminary hearing was not
transcribed.

                                           8
court did not err in finding that Lucas had not waived her statutory speedy trial

demand and in entering an order of discharge and acquittal pursuant to OCGA § 17-7-

170 (b).

      Judgments affirmed in Case Nos. A16A0744 and A16A0748. Boggs, J.,

concurs. Rickman, J., concurs in judgment only.




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