Appellee Tommy Wayne McNeil was arrested on June 19, 1983 for driving under the influence of alcohol. An accusation charging McNeil with that offense was filed in the State Court of DeKalb County during the July 1983 term of cоurt. 1 During the same July 1983 term of court, through his counsel, McNeil filed several demands, one of which was denominated a “Jury Demand.” This document requested a jury trial and “that the same be placed upon the minutes and that he be tried at this term or the next term of the State Court of DeKalb County, or in default of such trial, that he be fully acquitted and discharged of said offense.” Thereafter, by letter dated September 29, 1983 the State notified McNeil’s attorney that the case had been placed on the trial calendar for October 11, 1983. Prior to the date of trial, McNeil’s counsel informed the Assistant Solicitor of DeKalb Cоunty that McNeil would enter a plea of guilty, whereupon McNeil’s case was removed from the October trial calendar, apparently to then be placed upon the November 2, 1983 plea calendar.
However, by letter dated October 21, 1983, McNeil’s counsel notified the Assistant Solicitor that no guilty plea would be entered. Counsel explained that an October 20,1983 order of Judge Seеliger of the State Court of DeKalb County ruled inadmissible the breathalyzer results of the Intoximeter 3000 machine. See the appeal of this order in
State v. Strickman,
As a result of the foregoing letter, counsel was informed by the Solicitor’s office that McNeil’s case would be placed on the November 14, 1983 trial calendar. On that date counsel filed a motion in limine raising the same issues as those in Strickman, supra. Then with counsel present, the State announced to the court that McNeil’s case was identical to the intoximeter result issue in Strickman and that Judge Seeliger’s order in Strickman was being appealed. McNeil was, thus, not tried in November 1983. Nor was McNeil tried in December 1983 even though his counsel had bеen notified that the case would be on the trial calendar on December 12, 1983. Counsel then received a notification from the Solicitor’s office that McNeil’s case had been removed from the February 1984 trial calendar. It further stated: “Issues which may affect this case are being appealed to the Georgia Court of Appeals. We anticipate the case being set in Fеbruary or March.”
By letter dated November 30, 1984, the Assistant Solicitor informed counsel that the McNeil case had previously been removed from the trial calendar awaiting a decision in Strickman, supra. That оpinion had issued from the Court of Appeals on November 20, 1984 wherein the trial judge was reversed and the results of the intoximeter test ruled admissible. Therefore, counsel was instructed that McNeil’s case wоuld appear on the January 28, 1985 trial calendar. On December 12, 1984 McNeil’s motion for discharge and acquittal pursuant to OCGA § 17-7-170 was filed. After a hearing, the trial court granted McNeil’s motion and ordered him fully disсharged and acquitted. The State brings this appeal from that order. Held:
OCGA § 17-7-170 provides in pertinent part: “(a) Any person against whom ... an accusation is found for an offense not affecting his life may enter a demand for trial at the court term at which the . . . accusation is found or at the next succeeding regular court term thereafter . . . [T]he demand for trial shall be placed upon the minutes of the court, (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged” in the accusation. “A defendant who has made a proper demand for a trial is entitled to an automatic discharge without further motion if he is not tried on the second term of court provided a jury is present at each term who is qualified to try him.”
Parker v. State,
The inquiry, thus, becomes whether McNeil waived his right to automatic discharge and acquittal by some affirmative act on his part. “[T]he burden of showing a waiver is on the [S]tate.”
Parker v. State,
supra. The State contends that McNeil waived his rights under OCGA § 17-7-170 when his case was rеmoved from the October 11, 1983 trial calendar pursuant to the agreement of his counsel and the Assistant Solicitor that McNeil
planned
to enter a guilty plea on November 2, 1983. We find, however, that the State’s waivеr argument must fail in this case. Although the removal of the case from the October 11, 1983 trial calendar delayed trial until November 1983, “it did not delay the trial past the time within which trial could be held in accordanсe with his demand. In
Walker v. State,
“That ‘pаssing the case until a subsequent term’ means to a term outside the period of the demand was made clear in
Adams v. State,
*326 Based upon the foregoing, we find that McNeil’s agreement tо remove his case from the October 11, 1983 trial calendar in anticipation of the entry of a guilty plea did not constitute a waiver of his rights. Although the State argues to the contrary on appeаl, it appears that the solicitor’s office did not treat it as a waiver at that time. Within a few days of receipt of McNeil’s counsel’s October 21, 1983 letter notifying the State that McNeil would not pleаd guilty and requesting that the case be placed upon the next trial calendar pursuant to his previously filed demand, the solicitor’s office complied with the request by assigning the case to the Novеmber 1983 trial calendar and then to the December calendar. Thus, any act on McNeil’s part delayed his trial for one month only, postponing it to a month which was still within the same term.
Nor do we find McNeil tо have waived his demand for trial in accordance with OCGA ,§ 17-7-170 by filing his November 14, 1983 motion in limine seeking to preclude mention of the breathalyzer results for the same reason as that raised in
State v. Strickman,
supra, although not mеntioning the case by name. It is true that if the motion in limine had been granted
in McNeil’s case
resulting in an appeal taken by the State, a waiver of his demand would have resulted. “[B]y filing a motion to suppress, a defendant effеctively 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.”
(Emphasis supplied.)
State v. Waters,
Our determination that McNeil did not waive his demand for trial in accordance with OCGA § 17-7-170 nеgates the necessity of inquiring into whether his demand filed in the July 1983 term was “revived” by McNeil’s counsel’s letter to the Assistant Solicitor on October 21, 1983. See generally
Bennett v. State,
Judgment affirmed.
Notes
The State Court of DeKalb County has four terms of court annually beginning on the first Mondays in January, April, July and October. Ga. L. 1983, p. 4332 (effective March 18, 1983).