State v. PrestiaState v. Prestia
- Reporters:
- , ,
- Before:
- Pope
The State brings this appeal from the trial court’s August 15, 1986 order granting defendant’s motion for acquittal pursuant to
1. In its first challenge to the trial court’s order, the State argues the letter filed by defendant in which his demand for trial pursuant to
The record shows that on February 20, 1986 defendant’s attorney filed a letter with the Clerk of the State Court of Cobb County which, in addition to notifying the clerk of counsel’s representation of defendant, also contained a general
Brady
motion, a demand for copies of all warrants, accusations or indictments pending against the defendant, a list of all witnesses and “trial by jury at this or the next succeeding term of court pursuant to
“In
State v. Adamczyk,
162 Ga. App. 288 (290 SE2d 149) (1982), we held that to invoke the extreme sanction of acquittal, a demand for trial must be couched in language which may reasonably be construed as referencing the provisions of
In
Ferris v. State,
supra, we again considered whether defendant’s demand for speedy trial, which was also contained in a letter filed with the clerk of court, was sufficient to invoke the sanction of acquittal. In that case we found that defendant’s demand clearly sought a speedy trial, but nevertheless found the demand insufficient because it did not identify the charges pending against the defendant by name, date, term of court, or case number and thus could not “reasonably be construed as sufficient to put the authorities on notice of a defendant’s intention to invoke the extreme sanction of former Code § 27-1901 (now
Applying these considerations to the case sub judice, we note first that defendant’s letter contained both a specific request to be tried “at this or the next succeeding term of court” and a specific reference to
2. The State also challenges the trial court’s finding that jurors were impaneled and qualified during the February 1986 term of court (when defendant’s demand was made) and argues defendant failed to carry his burden of showing that jurors were qualified and impaneled during that term as is necessary to trigger the provisions of
The record shows that during the hearing on defendant’s motion for acquittal, Ms. Janice Brice, the chief deputy clerk of the State Court of Cobb County testified, inter alia, that to her knowledge jurors were impaneled each and every month to try cases in the State Court of Cobb County. Thus, we cannot agree with the State’s conclusion that the defendant failed to carry his burden in this regard. Moreover, in the absence of clear and convincing evidence to the con *26 trary, we will not on appeal disturb the trial court’s finding that qualified jurors were impaneled to try defendant during the term in which the demand was filed. Waller v. State, 251 Ga. 124 (303 SE2d 437) (1983); Wilson v. State, 156 Ga. App. 53 (274 SE2d 95) (1980); see generally Smith v. State, 174 Ga. App. 647 (2) (331 SE2d 14) (1985). Accordingly, we find the trial court did not err in granting defendant’s motion for acquittal.
Judgment affirmed.
Birdsong, C. J., and Deen, P. J., concur.