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Cawley v. State

Court of Appeals of Georgia

November 21, 2014

CAWLEY
v.
THE STATE

Page 582

[Copyrighted Material Omitted]

Page 583

Speedy trial. Glynn State Court. Before Judge Altman.

Judgment vacated and case remanded with direction.

Robert L. Crowe, for appellant.

Maria S. Lugue, Solicitor-General, for appellee.

MCFADDEN, Judge. Barnes, P. J., Doyle, P. J., Boggs, Ray, and Branch, JJ., concur. Andrews, P. J., dissents.

OPINION

Page 584

McFadden, Judge.

This is the second appearance of this case in this court on interlocutory appeal. In Cawley v. State, 324 Ga.App. 358 (750 S.E.2d 428) (2013), we vacated the trial court's order denying Cawley's motion to dismiss based on a violation of his constitutional right to a speedy trial and remanded the case to the trial court with direction that the trial court enter an order containing findings of fact and conclusions of law in accordance with Barker v. Wingo, 407 U.S. 514 (92 S.Ct. 2182, 33 L.Ed.2d 101) (1972). On remand, the trial court entered a more detailed order that once again denied Cawley's motion. We granted Cawley's application for interlocutory appeal, and Cawley appeals, arguing that the trial court abused his discretion in denying his motion. As detailed below, we find that the trial court erroneously attributed a majority of the pretrial delay in this case to Cawley instead of weighing that factor lightly against the state. Because we cannot say that the trial court would have had no discretion to reach a different result had he correctly attributed and weighed that factor, we must again vacate the trial court's order and remand the case for further proceedings.

The record reflects that Cawley was arrested for driving under the influence (" DUI" ) and speeding on February 19, 2009. The state filed an accusation against Cawley in the trial court on March 23, 2009. Cawley was arraigned on April 22, 2009, entered a plea of not guilty, and requested a jury trial. At the hearing on his motion to dismiss, Cawley called an employee from the trial court clerk's office as a witness. The employee testified that she was responsible for keeping records pertaining to cases filed in the trial court and was able to identify a document Cawley's counsel showed her as a summary of the events in Cawley's case, and the summary, which was generated by the Odyssey case management system, was introduced into evidence. The printout reflected that the trial court granted the [330 Ga.App. 23] state a continuance on June 20, 2011 because the arresting officer was on leave. Cawley's counsel represented that the case was next set for trial on September 12, 2011. The summary of events reflects that the trial court ordered a bond forfeiture and bench warrant on that date based on Cawley's failure to appear. A rule nisi was issued for September 13, 2011 with respect to the bond forfeiture. The state introduced into evidence another printout from the Odyssey system, and the clerk's office employee testified that the printout included a note from

Page 585

September 13, 2011 stating: " coming to plea on 09/21/2011 per [the trial judge]."

Cawley's attorney stated that " for some reason" Cawley did not get notice of the September 12, 2011 trial date but that Cawley was notified to appear on September 21, 2011 and did so. An entry in the case management system from September 21, 2011 indicated that the trial judge " said for this case to be placed back on a Trial Calendar; 01/2013." The trial judge who was assigned to the case was scheduled to retire at the end of 2012.

With respect to the entry on September 13, 2011 stating that Cawley was coming to plea on September 21, 2011, Cawley's counsel stated that " Mr. Cawley has never told me that he wanted to enter a plea to the offense of DUI." He then tendered to the trial court a final decision, dated May 5, 2009, in an administrative appeal from the Department of Public Safety's notice to suspend Cawley's driver's license pursuant to OCGA ยง 40-5-67.1. The decision reflected that the arresting officer agreed to withdraw the report initiating the administrative license suspension based on an agreement with Cawley that Cawley would enter a plea of guilty to reckless driving. Cawley's counsel conceded, however, that the trial court was not bound by that agreement and stated: " [t]hat is one reason no plea was entered that day." The solicitor-general stated at the motion to dismiss hearing that two subpoenas were sent to Cawley for the ...


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