Daniels v

State, 235 Ga. App. 296, 509 S.E.2d 368 (1998). Trial court did not err in denying the defendant’s motion for acquittal and discharge since the demand simply documented the defendant’s request to be tried by a jury. Chastain v. State, 237 Ga. App. 640, 516 S.E.2d 362 (1999). When demanding a speedy trial, the minimum acceptable standard required that a demand for trial be coupled with some other language placing the state on reasonable notice that a speedy trial under the sanctions of O.C.G.A. § 17-7-170 was being invoked, i.e., a reference to trial at the next term, reference to a ‘‘speedy trial,’’ use of the language of the statute, or reference to the statute section. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004). Pleading caption reasonably construed as demand. — Defendant’s pleading captioned as defendant’s ‘‘DEMAND,’’ which included a demand for ‘‘trial by jury pursuant to the Official Code of Georgia Annotated, Section 17-7-170 . . . .’’ could reasonably be construed as a demand for a speedy trial. Green v. State, 191 Ga. App. 873, 383 S.E.2d 359 (1989). Pleading captioned a ‘‘waiver of jury trial & demand for jury trial,’’ and demanding a jury trial in the event the 17-7-170 defendant’s case were transferred from the recorder’s court to the superior court, constituted a demand for speedy trial under O.C.G.A. § 17-7-170, when the pleading served the important purpose of notifying the state and the court of the defendant’s intention to proceed to a trial, or be discharged, at a subsequent term. Huff v. State, 201 Ga. App. 408, 411 S.E.2d 60, cert. denied, 201 Ga. App. 904, 411 S.E.2d 60 (1991). Caption ‘‘demand for jury trial’’ on defendant’s motion was legally sufficient to place the state on notice of the defendant’s demand for speedy trial since the body of the notice stated clearly ‘‘this is a request for speedy trial under this section.’’ Aranza v. State, 213 Ga. App. 192, 444 S.E.2d 349 (1994). Demand for trial was sufficient even though it was captioned with an inaccurate indictment number. State v. Wright, 221 Ga. App. 584, 472 S.E.2d 144 (1996). When counsel for a defendant charged with rape filed a document entitled ‘‘Entry of Appearance of Counsel and Demand for Trial,’’ which simply demanded a trial, this was insufficient to invoke the sanctions of O.C.G.A. § 17-7-170 for violation of the right to speedy trial. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004). Form not adequate to constitute demand. — Document entitled ‘‘Arraignment Plea and Waiver’’ upon which a box was checked by the appellee next to the statement ‘‘I request a jury trial’’ did not constitute a demand for speedy trial pursuant to O.C.G.A. § 17-7-170. State v. King, 164 Ga. App. 834, 298 S.E.2d 586 (1982). Demand for speedy trial was insufficient when the demand failed to identify the charges upon which the defendant demanded a speedy trial by name, date, term of court, or case number. Aranza v. State, 213 Ga. App. 192, 444 S.E.2d 349 (1994). Provision in the fifth paragraph of a document entitled ‘‘Motion Filed on Behalf of Defendant’’ stating ‘‘causes now, the defendant in the above styled case and makes demand upon the state for a speedy trial,’’ was insufficient to invoke speedy trial requirements. Dyal v. State, 211 Ga. App. 816, 440 S.E.2d 716 (1994). 648 Defendant’s motion that requested a jury trial and referenced O.C.G.A. § 17-7-170 could not reasonably be construed to demand a speedy trial. Bennett v. State, 244 Ga. App. 149, 534 S.E.2d 881 (2000). Pleading caption held insufficient. — Caption ‘‘JURY DEMAND’’ failed to set out the exact nature of a pleading as a demand for trial. A demand for trial will not be considered sufficient to invoke the extreme sanction of O.C.G.A. § 17-7-170 unless it is presented for what it is — a demand to be tried within the next succeeding term of court. Kramer v. State, 185 Ga. App. 254, 363 S.E.2d 800, cert. denied, 185 Ga. App. 910, 363 S.E.2d 800 (1987). Defendant’s ‘‘Omnibus Motion’’ was insufficient to invoke O.C.G.A. § 17-7-170 when, although the motion contained language requesting a trial, the caption of the motion obfuscated the nature of the pleading. Wilder v. State, 192 Ga. App. 891, 386 S.E.2d 685 (1989). Because the defendant did not strictly comply with the pleading requirements, having titled the pleading ‘‘Defendant’s Waiver of Formal Arraignment, Entry of ‘Not Guilty Plea’ and Demand for Jury Trial’’ rather than ‘‘Demand for Speedy Trial’’ and failing to make it a separate pleading, the trial court properly determined that the defendant was not entitled to discharge and acquittal. Uribe v. State, 346 Ga. App. 264, 816 S.E.2d 113 (2018). Demand insufficient to invoke section. — Letter addressed to and delivered to the district attorney by the defendant’s attorney requesting a trial by jury is not a demand sufficient to invoke the discharge provisions of O.C.G.A. § 17-7-170. Forbus v. State, 250 Ga. 24, 295 S.E.2d 530 (1982). Writing a request for speedy trial on the back of the indictment did not constitute actual notice to the prosecutor as required by O.C.G.A. § 17-7-170 and the trial court did not err in denying the defendant the extreme sanction of a directed verdict of acquittal and discharge. Carter v. State, 226 Ga. App. 198, 486 S.E.2d 79 (1997). Demand in letter held sufficient. — Defendant’s letter containing a specific request to be tried ‘‘at this or the next 17-7-170 succeeding term of court’’ and a specific reference to O.C.G.A. § 17-7-170 was sufficient to invoke the extreme sanction of acquittal. State v. Prestia, 183 Ga. App. 24, 357 S.E.2d 829, cert. denied, 183 Ga. App. 907, 357 S.E.2d 829 (1987). Obvious mistake in naming another person as the movant in the body of the demand could not have misled the state’s attorney since the defendant was correctly identified as the defendant in the style of the pleading, and the citation numbers referencing the charges against the defendant were correctly set forth therein. Verscharen v. State, 188 Ga. App. 746, 374 S.E.2d 349 (1988). Service of process. — Defendant was not entitled to a motion for discharge and acquittal on speedy trial grounds when the prosecution rebutted prima facie evidence of the certificate of service as strict compliance with O.C.G.A. § 17-7-170 was a prerequisite for relief. Leimbach v. State, 251 Ga. App. 589, 554 S.E.2d 771 (2001). Failure to serve demand for trial. — Trial court’s finding that the state’s attorney was not served with the defendant’s demand for trial is supported by an absence of certificates of service showing that the state’s attorney had been served with the defendant’s demand for trial and by the state’s attorney’s statement that neither the state attorney nor the district attorney’s office had been served with the defendant’s demand for trial. Under these circumstances, the trial court did not err in denying the defendant’s plea of autrefois acquit. Johnson v. State, 203 Ga. App. 896, 418 S.E.2d 155 (1992). Trial court properly denied a pre-indictment motion for discharge and acquittal pursuant to O.C.G.A. § 17-7-170 after the defendant filed the waiver of formal indictment and demand for trial without serving a copy upon the prosecutor or the trial judge. Webb v. State, 278 Ga. App. 9, 627 S.E.2d 925 (2006). Failure to serve speedy trial demand on trial court. — Trial court properly denied the defendant’s motion autrefois convict in a rape case under O.C.G.A. § 16-6-1; the defendant did not substantially comply with the O.C.G.A. § 17-7-170 requirements for filing a 649 17-7-170 Procedure (Cont’d) speedy trial demand on sexual battery charges that were pending before the instant rape charge was filed because the defendant failed to file the demand on the trial judge and thus no speedy trial demand was made. Baker v. State, 270 Ga. App. 762, 608 S.E.2d 38 (2004). Trial court erred in denying the defendant’s motions for discharge and acquittal pursuant to the defendant’s statutory right to a speedy trial because, despite the defendant’s assertions to the contrary, the defendant did not show that the defendant properly served the trial court judge with the motion for speedy trial as, on the motion’s face, there was nothing in the certificate of service that showed that the defendant properly served the trial court judge as required by O.C.G.A. § 17-7-170. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018). Defendant failed to perfect service of defendant’s demand for trial on either the official charged with prosecuting offenses in the recorder’s court (where the demand was filed) or the official responsible for prosecuting offenses in the superior court (where the case had been transferred prior to the defendant’s filing a demand for trial); there was no error in denying the defendant’s plea of autrefois acquit based on the defendant’s failure to serve the appropriate official with a copy of the defendant’s demand. Vondolteren v. State, 184 Ga. App. 344, 361 S.E.2d 833, cert. denied, 184 Ga. App. 911, 361 S.E.2d 833 (1987). Defendant need not repeat demand upon grant of a new trial. — If at a term when a demand for trial is operative, a trial is had resulting in a verdict of guilty, and a new trial is thereafter granted, the defendant is not required to again demand a trial since the state is already on notice of the demand, and if two regular terms go by in which juries are impaneled and qualified, and the defendant is not tried, the defendant shall be absolutely discharged and acquitted of the offense in which a demand for trial has been made. Dennis v. Grimes, 216 Ga. 671, 118 S.E.2d 923 (1961). Trial as to other charges when new trial granted as to one. — When a demand for trial is filed and a new trial is granted as to one charge upon the remittitur of the Supreme Court being made the order of the lower court, this section being tolled during the period as to that charge, nevertheless, the demand for trial as to the other charge requires a trial at the next succeeding regular term thereafter, provided at both terms there were juries impaneled and qualified to try the accused, or the petitioner would be entitled to discharge and acquittal of the latter offense. Dennis v. Grimes, 216 Ga. 671, 118 S.E.2d 923 (1961). Forfeiture of bond for nonappearance is no bar to demanding trial provided there is a jury qualified to try the cause when the demand is made. Hall v. State, 21 Ga. 148 (1857). Effect of nolle prosequi on demand. — Entry of a nolle prosequi without the accused’s consent would not affect the accused’s rights. The demand would stand over to be complied with at the next term. Brown v. State, 85 Ga. 713, 11 S.E. 831 (1890). If compliance with the notice requirement of Rule 31.2, Uniform Superior Court Rules, would cause the state to violate defendant’s right to a speedy trial, a trial court does not abuse the court’s discretion in proceeding to trial in accordance with the defendant’s speedy trial demand. Kellibrew v. State, 239 Ga. App. 783, 521 S.E.2d 921 (1999). Motion for severance properly denied. — Trial court did not abuse the court’s discretion by denying the defendant’s motion to sever the offenses charged in the indictment because all but one of the charged offenses occurred within a five-week period, the offenses took place at the same location, three of the offenses shared common witnesses, and since the jury acquitted the defendant of aggravated battery, aggravated assault, and battery, it was clear that the jury was able to distinguish the evidence and apply the law intelligently as to each offense. Rossell v. State, 341 Ga. App. 356, 799 S.E.2d 34 (2017). Role of Clerk Function of placing the demand on the minutes is to give notice to the state 650 that the time in which trial must be had is running. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144 (1970). Court’s duty to allow demand to be placed on minutes. — It is the duty of the trial court, upon notice, to allow the demand to be placed on the minutes of the court. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976). Right to speedy trial unaffected by fact that demand is not entered on minutes. — Fact that a demand for trial is not actually entered by the clerk upon the minutes of the court may not affect the defendant’s statutory right to speedy trial. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976). If demand is filed with clerk, failure to actually enter demand is immaterial. — If the demand is filed in the office of the clerk of the superior court, prior to the adjournment of that court, it is immaterial that such demand was not actually entered by the clerk upon the minutes of the court. Bryning v. State, 86 Ga. App. 35, 70 S.E.2d 779 (1952). If clerk is at fault for omission from minutes, special plea in bar not thereby defeated. — If all other requisites of this section had been met and the omission of the demands from the minutes is the fault of the clerk of court and not of the defendants or defendants’ counsel, such omission does not defeat the special plea in bar. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976). Correction of minutes to eliminate omission. — If as a matter of fact the minutes fail to speak the truth in that the minutes do not show the demand, the court has the power to correct the minutes and eliminate the omission so that the court’s own records conform to the truth. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976). If demand not permitted, recording demand serves no purpose. — It serves no purpose to record a demand in the usual fashion when permission to make the demand has not been granted. Newman v. State, 121 Ga. App. 692, 175 S.E.2d 144 (1970). Defendant’s right to inclusion of jury demand in minutes. — If jury demand be made, it is the right of the 17-7-170 accused to have the demand spread upon the minutes and the duty of the clerk to do it. Pless v. State, 157 Ga. App. 681, 278 S.E.2d 475 (1981); Lusher v. State, 192 Ga. App. 606, 386 S.E.2d 364 (1989); Larouche v. State, 192 Ga. App. 610, 386 S.E.2d 367 (1989). Qualified Jury ‘‘Qualified’’ defined. — Word ‘‘qualified’’ as used in this section related to the general qualification of the panels, rather than to the particular qualification of an individual juror appearing thereon. If the panel is a qualified panel, or if the array is not subject to challenge, the defendant should be tried upon the defendant’s demand, or discharged. If necessary, the court may cause the panels to be filled in the event any of the jurors disqualify or are otherwise put off for cause. Campbell v. State, 6 Ga. App. 539, 65 S.E. 307 (1909). Qualification of jury. — O.C.G.A. § 17-7-170 only requires that during the court terms there be juries impaneled and qualified to try a defendant; the statute does not require such a jury the moment appellant files a demand for trial. Lusher v. State, 192 Ga. App. 606, 386 S.E.2d 364 (1989); Larouche v. State, 192 Ga. App. 610, 386 S.E.2d 367 (1989). Jurors impaneled in county superior court were qualified to try the defendant in the state court of the county and, thus, the defendant was entitled to discharge and acquittal when the defendant was not tried during the term in which the defendant’s demand for trial was made. Scott v. State, 206 Ga. App. 17, 424 S.E.2d 325 (1992). When jurors were summoned for a special civil trial session of the July 1993 term of court, and the defendant filed a demand for trial during that term, at a time when the jurors were impaneled and qualified, the fact that the state’s attorney did not wish to work the jurors impaneled did not warrant the trial court’s conclusion that the time for the defendant’s demand did not begin to run until the next (October) term of the court and that the demand would not trigger a bar to prosecution until the expiration of the January 651 Qualified Jury (Cont’d) 1994 term. McKnight v. State, 215 Ga. App. 899, 453 S.E.2d 38 (1994). For purposes of a state court prosecution, a term in which superior court jurors were impaneled did not apply to a speedy trial determination because the jurors were not qualified to serve as state court jurors since the summons sent to the jurors referred only to the superior court. George v. State, 229 Ga. App. 632, 494 S.E.2d 526, aff ’d, 269 Ga. 863, 505 S.E.2d 743 (1998). If there is a demand for a speedy trial in a state court case in a term for which no state court jurors are impaneled, a jury impaneled by a superior court may serve in state court if the conditions of O.C.G.A. § 15-12-130 are met. George v. State, 269 Ga. 863, 505 S.E.2d 743 (1998). If no jury is impaneled and qualified to try a person when the demand is filed, the time designated in O.C.G.A. § 17-7-170 does not begin to run until the term at which jurors are impaneled and qualified to try the person. Kersey v. State, 191 Ga. App. 847, 383 S.E.2d 348 (1989). Consideration of number of available jurors. — Court of appeals erred in holding that the term in which the defendant filed a speedy trial demand did not count for purposes of determining entitlement to discharge and acquittal. The court of appeals erred in finding there were only five jurors available as the remaining 32 who appeared were either serving on other trials or had been committed for other trials; O.C.G.A. § 17-7-170 did not require the court to examine how many jurors were serving on other trials or committed to other trials. Williamson v. State, 295 Ga. 185, 758 S.E.2d 790 (2014). Demand Purpose of demand. — Purpose of entry of demand is to notify the state of the defendant’s intention to proceed to a trial, or be discharged at a subsequent term. Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902). Conflict with local law. — As O.C.G.A. § 15-7-43(b), enacted in 1983, 17-7-170 incorporates the speedy trial provisions of O.C.G.A. § 17-7-170 by reference, those provisions supersede a 1981 local law provision entitling a defendant in a state court to discharge and acquittal if no trial is had at the term when the demand is made or within the next two succeeding regular terms thereafter. Majia v. State, 174 Ga. App. 432, 330 S.E.2d 171, aff ’d, 254 Ga. 660, 333 S.E.2d 834 (1985); Parks v. State, 239 Ga. App. 333, 521 S.E.2d 370 (1999). As between O.C.G.A. § 17-7-170 and the Act establishing the State Court of Gwinnett County, Ga. L. 1977, p. 3331, as amended by Ga. L. 1981, pp. 3033, 3034, O.C.G.A. § 17-7-170 controls and governs the practice in the State Court of Gwinnett County. Hensler v. State, 174 Ga. App. 609, 332 S.E.2d 45, aff ’d, 254 Ga. 660, 333 S.E.2d 834 (1985); Dean v. State, 177 Ga. App. 678, 340 S.E.2d 647 (1986). Demand applies only in courts which have terms and impanel juries. — Implicit in the wording of O.C.G.A. § 17-7-170 is that the demand is applicable only in courts which have terms and impanel juries. Ramsey v. State, 189 Ga. App. 91, 375 S.E.2d 63 (1988). Demand for trial would be effective to invoke the statutory sanction of mandatory acquittal only if filed in a court of record having both regular terms and the authority to impanel juries. Cliatt v. State, 194 Ga. App. 110, 389 S.E.2d 568 (1989). Demand must be made in the court when the case is pending. Hunley v. State, 105 Ga. 636, 31 S.E. 543 (1898). Defendant failed to file a demand for speedy trial in the superior court as required by O.C.G.A. § 17-7-170 when, although the defendant filed a demand in the probate court where the charges were filed, the defendant failed to file a new demand in the superior court after the charges were transferred pursuant to the defendant’s request for transfer. Conley v. State, 267 Ga. App. 185, 598 S.E.2d 897 (2004). Order entering demand for trial is not conclusive when entered. — Ex parte order which enters a demand for trial and which recites that such demand truly made at a time that a traverse jury 652 was impaneled and qualified to try the case is not conclusive upon the trial court when entered. State v. McDonald, 242 Ga. 487, 249 S.E.2d 212 (1978). Defendant cannot claim the benefits of this section if the defendant made no demand for trial. Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976). Defendant’s presence not required. — O.C.G.A. § 17-7-170 does not require the physical presence of a defendant in the trial court in order to pursue a demand for trial. The statute is satisfied if a defendant is available for trial, whether physically present in court or not. State v. Collins, 201 Ga. App. 500, 411 S.E.2d 546 (1991). Defendant’s presence required. — Fact that the defendant was unable to appear due to involuntary extradition to another state did not alleviate the requirement that the defendant be present and announce ready for trial. Bashlor v. State, 165 Ga. App. 329, 299 S.E.2d 418 (1983). Demand binding only in court in which it is filed. — Although the defendant’s demand was filed in a municipal court, and a copy of the demand was sent to the state court prosecutor, the demand was ineffective as to the state court because the demand was ‘‘binding only in the court in which the demand is filed.’’ Adams v. State, 189 Ga. App. 345, 375 S.E.2d 642 (1988). Demand follows the indictment to whatever court the case may be transferred. Castleberry v. State, 11 Ga. App. 757, 76 S.E. 74 (1912). It is immaterial that the court to which the indictment is transferred is without authority to try the accused. Brock v. Slaton, 18 Ga. App. 175, 89 S.E. 156 (1916). Transfer of case. — Demand for trial is deemed to be transferred along with the case when the case is transferred from one court to another, and, therefore, the defendant was entitled to an acquittal when the demand was not included in the materials forwarded to the other court and the case was not tried within two terms after the filing of the demand. Turner v. State, 188 Ga. App. 267, 372 S.E.2d 826 (1988). 17-7-170 Defendant’s demand for a speedy trial was binding in superior court after the defendant’s case was transferred to the superior court, even though the superior court did not receive the motion until after July 1, 1987, the effective date of the amendment to O.C.G.A. § 17-7-170 providing that a demand for a speedy trial is binding only in the court in which it is filed, when the defendant filed the demand prior to the effective date of the amendment. O’Neal v. State, 188 Ga. App. 270, 372 S.E.2d 833 (1988). Since a Uniform Traffic Citation accusation expired when the defendant’s case was transferred to the superior court for indictment and trial, and the defendant’s demand for speedy trial was made only as to the indictment, the demand did not transfer to the state court as a demand for trial on an accusation filed after the indictment had been dismissed. Ramsey v. State, 189 Ga. App. 91, 375 S.E.2d 63 (1988). Defendant who did not make a demand in a court which could not give the defendant a trial in accordance with O.C.G.A. § 17-7-170 is not precluded from making a demand for trial after being bound over to the jurisdiction of another court after a new accusation is filed and the defendant makes a demand at that term or the next regular term. Marks v. State, 192 Ga. App. 106, 384 S.E.2d 186, cert. denied, 192 Ga. App. 902, 384 S.E.2d 186 (1989). Defendant, charged with a traffic violation, filed a demand for trial in the recorder’s court but not in the state court after the case was transferred, but that demand for trial was ineffective to invoke the sanction of discharge and acquittal under O.C.G.A. § 17-7-170, and the trial court properly denied the defendant’s motion for discharge and acquittal. Cliatt v. State, 194 Ga. App. 110, 389 S.E.2d 568 (1989), cert. denied, 194 Ga. App. 911, 389 S.E.2d 568 (1990). Trial court did not err in denying the defendant’s plea in bar as the defendant’s demand for a speedy trial applied only to the prosecution against the defendant on misdemeanor traffic charges in the probate court when the defendant made the demand; since the defendant expressly waived the right to a speedy trial when 653 Demand (Cont’d) the defendant requested that the defendant’s case be transferred to the superior court, the defendant’s speedy trial rights were not violated. Bishop v. State, 261 Ga. App. 445, 582 S.E.2d 571 (2003). Demand not inferred. — Demand for speedy trial as to an accusation under O.C.G.A. § 17-7-170 will not be inferred unless a demand is specifically made. Ramsey v. State, 189 Ga. App. 91, 375 S.E.2d 63 (1988). Ambiguous demand insufficient. — Demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of O.C.G.A. § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for a speedy trial. Kevinezz v. State, 207 Ga. App. 456, 428 S.E.2d 366 (1993). When no indictment is necessary. — Statutory language referring to ‘‘a true bill of indictment or an accusation’’ applies to an accusation only in those cases in which no indictment is necessary, either because of the nature of the offense or a defendant’s written waiver of indictment. Groom v. State, 212 Ga. App. 133, 441 S.E.2d 259 (1994). Time demand is entered as affecting rights. — If the demand was entered and allowed, the accused was entitled to all the rights of this section, regardless of the term at which the demand was entered. Dublin v. State, 126 Ga. 580, 55 S.E. 487 (1906). Filing demand after indictment not prerequisite for asserting violation of constitutional speedy trial right. — Trial court erred in denying the defendant’s motion to dismiss an indictment on the ground that the state violated the defendant’s right to a speedy trial under the Sixth Amendment because the trial court failed to consider the facts showing that the defendant was out on bond and without counsel during the 42-month period between the defendant’s arrest and indictment; the defendant was not entitled to file a statutory demand for a speedy trial pursuant to O.C.G.A. § 17-7-170 during the 42 months following the arrest but prior to the indictment, 17-7-170 and the filing of a demand after the indictment was not a prerequisite for asserting a violation of the constitutional right to a speedy trial. Goffaux v. State, 313 Ga. App. 428, 721 S.E.2d 635 (2011). In order to trigger this section, the defendant must make a demand at a time that a traverse jury is impaneled and qualified to try the defendant. State v. McDonald, 242 Ga. 487, 249 S.E.2d 212 (1978). Demand for trial must be made at a regular term of court at which there was a jury impaneled and qualified to try the defendant, and while no order of the court may be necessary if it was filed during the term at which the defendant was indicted, this section expressly requires permission of the court if the demand was made at a regular term subsequent to the term of indictment and the first term thereafter. Hatfield v. State, 139 Ga. App. 535, 228 S.E.2d 720 (1976). In order to invoke the provisions of this section, the defendant must move for an immediate trial, the trial court must accept the demand, and note the demand on the minutes of the court. The movant must also be in attendance or available at the court in which the movant demands trial. There is no inherent authority in a court of this state to compel a defendant’s in-court attendance when such defendant is incarcerated outside this state pursuant to a sentence imposed by a different sovereign. Hunt v. State, 147 Ga. App. 787, 250 S.E.2d 517 (1978). Demand for jury trial on last day of term. — Because a criminal defendant made a demand for a jury trial on January 31, the last day of the November term of court, when there were no juries available for service, the trial court did not err in denying the defendant’s plea in bar filed in the May term. Kirk v. State, 194 Ga. App. 801, 392 S.E.2d 249 (1990). Demand for trial need not be presented to the trial judge and approved by the judge. Jeffries v. State, 140 Ga. App. 477, 231 S.E.2d 369 (1976). Approval of the trial judge was not required under this section when the demand is made at the term at which the indictment is returned or the next succeeding regular term thereafter. Nor was 654 it necessary to present the demand to the judge rather than to the clerk of court in order to apprise the court of the demand’s existence. Dickerson v. State, 108 Ga. App. 548, 134 S.E.2d 51 (1963). Decision holding that demand for trial must be made to the judge and not to the clerk. — See Turner v. State, 136 Ga. App. 42, 220 S.E.2d 57 (1975). Demand for trial need not be presented to the judge rather than to the clerk of court. Dickerson v. State, 108 Ga. App. 548, 134 S.E.2d 51 (1963). Right to demand trial during term in which indictment found. — Every person against whom a bill of indictment is found shall be tried at the term of court at which the indictment is found, unless the absence of a material witness or the principles of justice require a postponement of the trial, in which event the court shall allow a postponement until the next term. In keeping with this policy, this section provided that an accused person may demand such trial. Harris v. State, 84 Ga. App. 1, 65 S.E.2d 267 (1951). Defendant does not have to wait a term before making a demand for trial but may make the demand at the term at which the indictment was returned. Harris v. State, 84 Ga. App. 1, 65 S.E.2d 267 (1951). Demand must be for trial at next term. — Demand for trial will not be sufficient to invoke the extreme sanction of O.C.G.A. § 17-7-170 unless the demand is presented for what it is — a demand to be tried within the next succeeding term of court. Smith v. State, 166 Ga. App. 352, 304 S.E.2d 476 (1983). If a defendant fails to make a demand for trial at the term at which the indictment was returned, or at the next term and did not obtain the permission of the court to make an out-of-time demand, the defendant’s claims under O.C.G.A. § 17-7-170 are without merit. Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985); Ramsey v. State, 183 Ga. App. 48, 357 S.E.2d 869, cert. denied, 183 Ga. App. 906, 357 S.E.2d 869 (1987). Demand by defendant who is not within state nor subpoena power of the state’s courts. — If the defendant applies for a speedy trial under former 17-7-170 Code 1933, § 27-1901 (see O.C.G.A. § 17-7-170) but cannot procedurally seek a speedy trial under that section because the defendant is not physically present or within the subpoena power of the Georgia courts, the defendant’s right to a speedy trial must be determined under the Interstate Agreement of Detainers, Art. 2, Ch. 6, T. 42, if that statute was utilized to secure the defendant’s trial. Johnson v. State, 154 Ga. App. 512, 268 S.E.2d 782 (1980). Demand for jury trial was a demand for trial sufficient to invoke this section. Wallis v. State, 154 Ga. App. 764, 270 S.E.2d 45 (1980). Motion for opportunity to select fair jury is not a demand for trial. — Motion to require that the defendant have an opportunity to select a fairly constituted traverse jury was not a demand for trial operating to invoke this section. Bennett v. State, 153 Ga. App. 21, 264 S.E.2d 516 (1980). Notice sent to the Board of Offender Rehabilitation requesting a final disposition of an escape charge does not have the same effect as a demand for trial. Halm v. State, 125 Ga. App. 618, 188 S.E.2d 434 (1972). Demand may be made by one of two persons jointly indicted after one has secured a severance. Winkle v. State, 20 Ga. 666 (1856). Standing over of demand to next term upon securing of new trial by convicted defendant. — When a convicted defendant who filed a demand for speedy trial successfully takes action to negate the determination of guilt and secures a new trial, the demand will stand over to be complied with at the next term. Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981). Demand for trial may be waived by counsel. Hogan v. State, 193 Ga. App. 543, 388 S.E.2d 532 (1989). Defendant did not waive a demand for trial by a letter from defense counsel to the solicitor advising the defendant that it ‘‘would not be necessary to hear the motions’’ in the defendant’s case since a demand for trial is not a motion and therefore was not the subject of the letter. Larouche v. State, 192 Ga. App. 610, 386 S.E.2d 367 (1989). 655 17-7-170 Demand (Cont’d) Demand not waived by pretrial motions. — Defendants’ filing of pretrial motions did not constitute a consent or other affirmative act amounting to waiver of a demand for trial in the next succeeding term of court. Peek v. State, 189 Ga. App. 584, 377 S.E.2d 8 (1988), aff ’d sub nom. Parks v. Norred & Assocs., 206 Ga. App. 494, 426 S.E.2d 12 (1992). Order not entered pursuant to demand. — In order to invoke the provisions of O.C.G.A. § 17-7-170, a defendant must make a demand for trial. The court’s order, requiring that the sheriff or the sheiff ’s deputy ‘‘pick up . . . defendant and bring him before [the] Court for the disposition of his case as soon as possible,’’ neither indicated that it was entered pursuant to a demand for trial made by the defendant, nor was the order sufficient to invoke the extreme sanction of that Code section. Coggins v. State, 188 Ga. App. 455, 373 S.E.2d 269 (1988). If there is no jury impaneled and qualified at the time the demand is made, the demand is not good for that term. State v. McDonald, 146 Ga. App. 83, 245 S.E.2d 446, rev’d on other grounds, 242 Ga. 487, 249 S.E.2d 212 (1978). Since the defendant filed a demand for a speedy trial during a term in which no jurors were impaneled, the term did not count in computing the two-term requirement under O.C.G.A. § 17-7-170(a). Spencer v. State, 259 Ga. App. 664, 577 S.E.2d 817 (2003). Because jurors were dismissed and not subject to recall, the jurors were not empanelled for service when the defendant made the defendant’s demand for speedy trial; thus, the term in which the demand was filed did not count for computation of the two-term requirement. Johnson v. State, 264 Ga. App. 195, 590 S.E.2d 145 (2003). Pro se demand invalid if defendant has counsel. — Because, at the time the defendants filed the defendants’ pro se demand for discharge pursuant to O.C.G.A. § 17-7-170, the defendants were represented by counsel, the trial court was clearly authorized to find that this pro se demand was of no legal effect. Goodwin v. State, 202 Ga. App. 655, 415 S.E.2d 472 (1992); Maddox v. State, 218 Ga. App. 320, 461 S.E.2d 286 (1995). Since the defendant was represented by counsel when the defendant filed a pro se demand for speedy trial, that demand was of no legal effect whatsoever. Daniels v. State, 235 Ga. App. 296, 509 S.E.2d 368 (1998). Defendant’s demand for speedy trial was filed pro se while the defendant was represented by counsel, and because such demand was filed before the indictment was returned against the defendant, the defendant’s demand had no legal effect. Brown v. State, 264 Ga. App. 9, 589 S.E.2d 830 (2003), cert. denied, 543 U.S. 831, 125 S. Ct. 172, 160 L. Ed. 2d 48 (2004). Accused may sit mute at the second term. — Only duty imposed on the defendant being that the defendant be not voluntarily absent from the court, and that the defendant shall have done no other act which in law would amount to a waiver of the defendant’s demand. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912). Demand including request for trial by jury. — Because the defendant filed a single demand which was specifically captioned and written as a ‘‘Demand For Speedy Trial By Jury Under OCGA § 17-7-170’’, the defendant’s subsequent ‘‘Withdrawal of Jury Demand’’, without more, served to withdraw the defendant’s single, previously filed demand in the demand’s entirety. Price v. State, 245 Ga. App. 128, 535 S.E.2d 766 (2000). Waiver Silence at second term and failure to bring demand to court’s attention not waiver. — Accused may waive the right under this section, but mere silence at the second term and failure to bring the demand to the court’s attention will not amount to a waiver. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912). Allowing jury to be discharged is not waiver. Dacey v. State, 15 Ga. 286 (1854). Absence when the case is called constitutes waiver. Moreland v. State, 51 Ga. 192 (1874); Odom v. State, 25 Ga. App. 746, 105 S.E. 54 (1920). 656 Voluntary absence from court constituted a waiver by the accused of rights under this section. Flagg v. State, 11 Ga. App. 37, 74 S.E. 562 (1912). Voluntary absence from the court amounts to a waiver of the demand for trial and the defendant is not entitled to discharge and acquittal. Daniels v. State, 199 Ga. App. 400, 405 S.E.2d 88, cert. denied, 199 Ga. App. 905, 405 S.E.2d 88 (1991); State v. Collins, 201 Ga. App. 500, 411 S.E.2d 546 (1991). Absence from calendar call not waiver. — Absence of the defendant and, by extension, the defendant’s counsel from a calendar call is not, per se, sufficient grounds to find waiver of the trial demand. McKnight v. State, 215 Ga. App. 899, 453 S.E.2d 38 (1994). No waiver of the defendant’s demand for a speedy trial occurred as a result of defense counsel’s absence from the courtroom when the case was called for trial because under the facts in the case defense counsel justifiably believed counsel was ‘‘on call.’’ State v. McKnight, 265 Ga. 701, 462 S.E.2d 142 (1995). Waiver. — If defense counsel failed to appear at a calendar call, failed to file a conflict letter, and failed to contact the court when a conflicting trial ended (in accordance with Ga. Unif. Super. Ct. R. 17.1(C)), counsel’s actions amounted to a waiver of the defendant’s O.C.G.A. § 17-7-170 speedy trial demand. Oni v. State, 268 Ga. App. 840, 602 S.E.2d 859 (2004). Speedy trial demand in a non-capital case did not impose a requirement to announce a readiness for trial; rather, a request for a continuance outside the term of the demand waived the speedy trial demand. Dingler v. State, 281 Ga. App. 721, 637 S.E.2d 120 (2006). When the court previously found that a defendant waived the defendant’s statutory speedy trial claim, the defendant could not relitigate the issue in a subsequent appeal despite a delay following remittitur. Oni v. State, 285 Ga. App. 342, 646 S.E.2d 312 (2007). Waiver by guilty plea. — Despite attempts by the defendant to reserve the right prior to a plea, the defendant waived the right to assert on appeal that the state 17-7-170 failed to comply with the speedy trial requirement of O.C.G.A. § 17-7-170(b) by a guilty plea. Hewell v. State, 277 Ga. App. 265, 626 S.E.2d 237 (2006). Failure to make demand as waiver of speedy trial. — While the burden was on the defendant to protect the defendant’s statutory rights to a speedy trial by making a timely demand for trial under this section, the defendant’s failure to do so did not, of itself, work a waiver of rights under U.S. Const., amend. 6. Sanders v. State, 132 Ga. App. 580, 208 S.E.2d 597 (1974). While there is a burden on a defendant to protect the defendant’s right to a speedy trial, failure to make a demand does not amount to a waiver of rights under U.S. Const., amend. 6. Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979). Defendant’s right to a speedy trial was not violated because the defendant did not file a statutory demand for speedy trial under O.C.G.A. § 17-7-170 and the delay was partially attributable to the defendant. Manning v. State, 250 Ga. App. 187, 550 S.E.2d 762 (2001). Trial court erred in dismissing the defendant’s demand for a speedy trial on the state’s motion to dismiss; although the defendant was required to obtain special permission of the court to file such a demand for trial because the defendant had not entered such a demand during the court term in which the indictment was filed or at the next succeeding regular term of court, the record showed that the trial court essentially granted permission by instructing the defendant at a bond revocation hearing to file such a demand. Prather v. State, 261 Ga. App. 506, 583 S.E.2d 191 (2003). Defendant’s motion for continuance did not constitute waiver. — Defendant’s action in moving for a continuance until scientific test results were forthcoming, when the state failed to produce scientific test results the state had informed the trial court would be ready on the day of trial, did not constitute a waiver of the defendant’s rights under O.C.G.A. § 17-7-170. Weidlund v.