                              FIFTH DIVISION
                             MCFADDEN, P. J.,
                          MCMILLIAN and GOSS, 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 17, 2019




In the Court of Appeals of Georgia
 A19A0470. THE STATE v. LEWIS.

      MCMILLIAN, Judge.

      The State appeals from the trial court’s order granting defendant Michael

Lewis’ motion to dismiss his indictment on one charge of possession of a firearm by

a convicted felon. For the reasons that follow, we vacate the trial court’s order and

remand for further proceedings.

      The limited record shows that Lewis and his co-defendant, Dexter Harris, were

stopped by police on August 12, 2013, after the officers saw that neither man was

wearing a seatbelt. When the officers approached the vehicle, they observed what

appeared to be a marijuana cigar tucked into Lewis’ waistband. During a subsequent

search of the vehicle, officers located a handgun in the center console. When neither

man admitted to owning or possessing the handgun, both Lewis and Harris were

arrested and later charged with possession of a firearm by a convicted felon.
      In 2018, Lewis and Harris filed a motion to suppress and a motion to dismiss

the indictment on the grounds that they had been deprived of their constitutional right

to a speedy trial. After the motions were set for a hearing during a period when the

testifying officer would be unavailable, the State moved to continue the hearing on

the defendants’ motions to suppress. At the hearing on the motion to dismiss, Harris

elected to waive his motions and enter a guilty plea, which the trial court accepted.

In discussing sentencing, Harris’ counsel told the trial court:

      And we’re not getting into actual ownership or anything like that, but he
      is taking responsibility for the gun that was in there. Because he was the
      driver of the car, and it’s presumed to be – anything in there is presumed
      to be that of the owner, and I’ve tried to explain that to him, too. And he
      can’t even be around somebody that has a firearm because this can
      happen again even though it’s not his firearm.


      Later that same day, Lewis appeared in the same trial court for a hearing on his

speedy trial motion. Immediately, the trial court asked the State what it was “trying

to accomplish” given that Harris had just entered a guilty plea on the same charge.

The State explained that the defendants were not charged with ownership of the

firearm, but rather with constructive joint possession because the firearm was found

within arm’s reach of both men in the vehicle. When the State attempted to address


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the factors involved in the analysis of Lewis’ speedy trial motion, the trial court again

turned to the fact that Harris had pleaded guilty to possession of the firearm. The trial

court then asked – despite the State’s motion for continuance in the absence of the

testifying officer – whether it was permitted to dismiss the case by converting Harris’

constitutional speedy trial motion to a “motion for directed verdict.” Although the

State maintained that a directed verdict would not be appropriate, the trial court

entered an order dismissing the indictment on the grounds that the State “had not

spoken to the arresting officer to clarify the area where the firearm was recovered.”

This appeal followed.

      Although it is not entirely clear from the record what the trial court intended

to do in issuing its order following the hearing on Lewis’ speedy trial motion, we find

that it was without authority to act as it did. We first note that a directed verdict of

acquittal is proper “[i]f, construing the evidence in favor of the State, no rational jury

could make the requisite finding.” Shivers v. State, 286 Ga. 422, 430 (3), n.4 (688

SE2d 622) (2010). Thus, a motion for directed verdict “has no meaning when a case

is tried without a jury.” Poole v. State, 249 Ga. App. 409, 410 (1) (548 SE2d 113)

(2001) (trial court cannot direct a verdict of acquittal in a bench trial). Because there

has been no trial – much less a jury trial – in this case, the trial court was not

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authorized to issue a directed verdict. See Fluellen v. State, 264 Ga. App. 19, 22 (4),

n.1 (589 SE2d 847) (2003) (trial court cannot direct verdict of acquittal in a bench

trial). If there had been a bench trial, “the issue [would have been] whether the

evidence was sufficient at trial to support a conviction under the standards of Jackson

v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).” Poole, 249 Ga. App.

at 410 (1). However, suffice it to say, neither the trial court nor this Court can

undertake an analysis of the sufficiency of the evidence prior to trial.

      If the trial court intended to dismiss the indictment on speedy trial grounds, it

was first required to evaluate Lewis’ claim under the two-part framework set out in

Barker v. Wingo, 407 U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v.

United States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992). See Johnson v.

State, 300 Ga. 252, 257 (3) (794 SE2d 60) (2016). Because the trial court did not

make the required findings of fact or conclusions of law regarding the Barker-

Doggett analysis, we must vacate the order and remand the case for further

proceedings and the entry of an order containing the appropriate findings of fact and

conclusions of law. Id. at 258 (3).

      Judgment vacated and case remanded. McFadden, P. J., and Goss, J., concur.



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