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Mize v. State

422 S.E.2d 180, 262 Ga. 489, 92 Fulton County D. Rep. 2542, 1992 Ga. LEXIS 934
CourtSupreme Court of Georgia
DecidedOctober 30, 1992
DocketS92A0648
StatusPublished
Cited by20 cases

This text of 422 S.E.2d 180 (Mize v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mize v. State, 422 S.E.2d 180, 262 Ga. 489, 92 Fulton County D. Rep. 2542, 1992 Ga. LEXIS 934 (Ga. 1992).

Opinions

Fletcher, Justice.

On December 19,1989, James Wesley Mize was indicted for murder, felony murder, and armed robbery arising out of an incident that occurred in September of 1989. On February 28, 1990, the last day of the January-February term of court for the Fulton County Superior Court, Mize filed a demand for trial pursuant to OCGA § 17-7-171. On March 22, 1990, the state moved to dismiss Mize’s demand for trial, arguing that it had not been timely filed because no jurors had been impaneled on the date the demand was filed. After hearing oral arguments concerning the motion, the trial court granted the motion and struck the demand.

Mize was tried in January of 1991 and, on January 31, 1991, was convicted of felony murder and armed robbery. On February 1, 1991, the trial court filed Mize’s sentence. On March 1, 1991, Mize filed a motion for new trial wherein he argued, among other things, that the trial court had erred in March of 1990 when it dismissed his demand for trial.

[490]*490On September 26, 1991, the trial court granted Mize’s motion for new trial and, thereafter, on November 6,1991, Mize filed a motion to bar and dismiss prosecution and indictment. It is from the trial court’s denial of such motion that he appeals. For the reasons set forth below, we affirm.

1. OCGA § 17-7-171 governs demands for trial in capital cases and subsection (a) of that section sets forth the time during which a demand for trial must be entered in a capital case in order to be considered timely. Subsection (a) does not require that jurors be impaneled at the time the demand is entered in order for the demand to be timely; it simply requires that the demand be entered either at the term of court at which the indictment was found or at the next succeeding regular term thereafter.1

Mize was indicted during the November/December 1989 term of Fulton County Superior Court and entered his demand for trial at the next succeeding regular term of court thereafter: the January/February term of 1990.2 That no jurors were impaneled at the time appellant’s demand was entered was not relevant to the timeliness of his demand3 and the trial court erred by striking the demand.

2. OCGA § 17-7-171’s guarantee of a speedy trial protects a right that is personal to an individual accused of a capital offense. However, the statutory right to a speedy trial is not jurisdictional in nature and may be waived by an accused’s affirmative acts and/or failures to act. The conduct of an accused, both before and after the filing of the speedy trial demand authorized by OCGA § 17-7-171, may result in an accused waiving his or her right to a speedy trial. See 57 ALR2d 302. See also Parker v. State, 135 Ga. App. 620, 621 (218 SE2d 324) (1975); Hogan v. State, 193 Ga. App. 543, 544 (388 SE2d 532) (1989).

Mize did not seek the trial court’s permission to file a new demand for trial following dismissal of his first demand.4 Nor did Mize file a motion seeking dismissal of the indictment prior to proceeding with his trial when it eventually began in January of 1991, despite the [491]*491fact that five terms of court had passed since that demand was filed. It was not until after he had been tried and convicted that Mize, in his motion for new trial, first asserted error with respect to the timeliness of his trial. As a result of these affirmative acts and failures to act, Mize has long since waived his statutory right to a speedy trial.5

3. Mize’s motion to bar and dismiss the prosecution and indictment was not filed until after his motion for new trial had been granted. Such motion was not timely and was correctly denied by the trial court.

Judgment affirmed.

Clarke, C. J., Hunt and Benham, JJ., concur; Bell, P. J., and Sears-Collins, J., dissent.

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Mize v. State
422 S.E.2d 180 (Supreme Court of Georgia, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
422 S.E.2d 180, 262 Ga. 489, 92 Fulton County D. Rep. 2542, 1992 Ga. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mize-v-state-ga-1992.