MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Gosline appeals from the trial court's denial of his plea
in bar, which was based on speedy-trial grounds. Because he
was incarcerated in Michigan when he filed his statutory
demand for speedy trial and during the next term of court, we
November 2015, Gosline was charged with aggravated battery
and aggravated assault. In February 2016, he filed a
statutory demand for speedy trial. Then, in May 2016, Gosline
filed a motion for discharge and acquittal pursuant to OCGA
§ 17-7-170, based on the state's failure to try him
within two terms of court of his demand for speedy trial. The
trial court held a hearing on the motion, during which the
parties agreed that Gosline was arrested in Michigan five
days after the incident that led to the charges in this case.
He remained incarcerated in Michigan until after the trial
court's next term of court ended. Because of his
incarceration in Michigan, the trial court denied
Gosline's motion for discharge. In its order, the court
noted that it has no authority to compel the attendance of a
defendant who is in the custody of a different
sovereign. Gosline then filed this appeal.
acknowledges that he was incarcerated in Michigan when he
filed his statutory demand for speedy trial and during the
next term of court. He insists, however, that he is entitled
to discharge because he would have waived his right to be
present at trial if the court had set his trial on its trial
calendar. We disagree.
to OCGA § 17-7-170 (b), if a defendant who files a
statutory demand for speedy trial "is not tried when the
demand for speedy trial is made or at the next succeeding
regular court term thereafter, provided that at both court
terms there were juries impaneled and qualified to try the
defendant, the defendant shall be absolutely discharged and
acquitted of the offense charged in the indictment or
the statute, two circumstances must coexist before discharge
occurs: two terms of juries impaneled and qualified to try
defendant, and the availability of defendant."
McIver v. State, 205 Ga.App. 648, 649 (423 S.E.2d
27) (1992). Where the accused is in the custody of a
different sovereign and the Interstate Agreement on Detainers
Act does not apply, the accused is not available for trial
"because [t]here is no inherent authority in a court of
this state to compel an accused's presence or in-court
attendance where such defendant is incarcerated by or in the
control of a different sovereign." Baldwin v.
State, 270 Ga.App. 201, 202 (605 S.E.2d 889) (2004)
(citations and punctuation omitted).
as in McIver, Gosline was in the custody of a
different sovereign during the time relevant to his
speedy-trial demand. Gosline acknowledges this fact. He
argues, however, that McIver is
"erroneous" and "too broad" because it
does not consider the possibility of a defendant waiving his
right to be present at trial. To the extent Gosline contends
that McIver should be overruled, we decline to do
so. McIver is consistent with our precedent holding
that a defendant who invokes the speedy-trial guarantee must
be available for trial, and that a defendant who is in the
custody of a different sovereign is "not available for
trial since there is no inherent authority in a court of this
[s]tate to compel his presence under those
circumstances." State v. Collins, 201 Ga.App.
500, 501 (411 S.E.2d 546) (1991) (discussing Luke v.
State, 180 Ga.App. 378, 379 (349 S.E.2d 391) (1986)
(overruled by Collins, 201 Ga.App. 500), and
Hunt v. State, 147 Ga.App. 787, 788 (250 S.E.2d 517)
(1978)). Compare Reid v. State, 116 Ga.App. 640,
647-648 (2) (158 S.E.2d 461) (1967) (defendant who was in the
custody of the Georgia State Board of Corrections on a
previous conviction was entitled to a discharge of his
pending charges when he was not brought to trial within two
terms of his demand for speedy trial). Further, nothing in
the record - except for Gosline's motion for discharge
and acquittal, which was filed after the relevant time period
- reflects a desire to waive his right to be present at
trial. Gosline acknowledges this fact as well, but maintains
that the trial court's failure to place him on the
calendar precluded him from voicing that waiver. He does not,
however, cite any authority in support of his implicit
contention that a waiver could be effected only during a
calendar call or only after the trial was placed on the
calendar, and we decline to impose such a rule.
also contends that McIver is inconsistent with the
principle that, once a defendant files a proper demand for
speedy trial, he is not required to take any further action
to be automatically entitled to a discharge if the two-term
deadline passes without trial. See, e.g., State v.
Marshall, 337 Ga.App. 336, 337-338 (1) (787 S.E.2d 290)
(2016). Even the cases reciting this principle, however, have
recognized that a defendant must be available for trial to
invoke the two-term deadline. For example, in Flagg v.
State, 11 Ga.App. 37 (74 S.E.2d 562) (1912), the
defendant filed a demand for speedy trial on his felony
indictment. We concluded that he was available for trial, and
was therefore entitled to a discharge based on the passage of
two terms, even though he was serving a chain-gang sentence
for a previous conviction. Central to our conclusion was the
fact that both the pending felony indictment and the previous
conviction were before the same trial court, so the state had
the defendant in its custody and could produce him for trial.
Id. at 41.
the circumstances, we conclude that Gosline's
incarceration in Michigan extended the time for his speedy
trial demand. See McIver, 205 Ga.App. at 648-649.
Because Gosline was not available for trial, the state's
failure to try him within two terms of his statutory demand
for speedy trial does not render him entitled to a discharge.
Per Curiam. All Judges concur.