Fischer v. State
Fischer v. State
Opinion of the Court
On October 11, 2002, Richard Fischer was arrested for driving under the influence and possessing less than one ounce of marijuana. On August 31, 2006, Fischer moved to dismiss the charges against him, asserting that the State’s failure to timely try him violated his constitutional right to a speedy trial. The trial court denied the motion to dismiss. For reasons that follow, we vacate the trial court’s order and remand.
The record reveals that Fischer was arrested on October 11, 2002, and he was immediately released on bond. However, the State did not file an accusation until March 26, 2004. Shortly thereafter, in July 2004, the State transferred the case against Fischer to its “dead docket.” According to the order signed by the trial court, the transfer was neededbecause “[t]he investigator in this case, Leon Millholland, is on active duty in Iraq.” In June 2006, the case was returned to the active docket because it “appear[ed] that the investigator [was] back from Iraq.”
Upon discovering that the case had been placed on an active trial calendar, Fischer filed a plea in bar, seeking dismissal of the case based upon a violation of his constitutional right to a speedy trial. A hearing was held during which the attorney for the State reiterated that the case had been dead-docketed as a result of the investigating officer’s deployment to Iraq and that the officer had since returned. Fischer’s attorney, on the other hand, argued that the investigator’s
1. As a threshold matter, we must address whether the absence of any testimony at the hearing undermines the trial court’s factual findings. In Bibbins v. State,
2. Next, we address Fischer’s claim that the trial court erred in denying his motion to dismiss. In analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated, the trial court must balance the following factors: “(1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant.”
(a) Length of the delay. “The relevant time period in a [constitutional] speedy trial claim begins with the earlier of the date of indictment and the date of arrest.”
(b) Reason for delay. The trial court essentially found the delay justified as it was countenanced by the lead investigator’s service in Iraq. However, as discussed in Division 1, we question whether there is sufficient competent evidence in the record to justify this finding. Arguably, the trial court could have taken judicial notice of its previous orders.
(c) Assertion of the right. Although the State has a duty to bring a defendant to trial in an expeditious manner, a defendant has an obligation to assert his constitutional right to a speedy trial.
(d) Prejudice. In evaluating whether a defendant has been prejudiced by a delay, we consider three interests that the right to a speedy trial is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the defendant; and (3) limiting the possibility of impairment to the defense.
On appeal, Fischer suggests he was prejudiced by the absence of witnesses who were passengers in his car when he was stopped by police. However, Fischer provided no evidence to support this assertion.
Order vacated and case remanded.
280 Ga. 283, 283-285 (627 SE2d 29) (2006).
We note, however, that in Bibbins there appeared to be no dispute as to the facts and the parties stipulated to the facts in their briefs to this Court. See id. at 284.
See id.
(Punctuation omitted.) Christian v. State, 281 Ga. 474, 475-476 (2) (640 SE2d 21) (2007).
See id.
See Bryant v. State, 265 Ga. App. 234, 235 (593 SE2d 705) (2004).
(Citation omitted; emphasis in original.) Williams v. State, 277 Ga. 598, 599 (1) (a) (592 SE2d 848) (2004).
(Punctuation omitted.) Parker v. State, 283 Ga. App. 714, 716 (2) (a) (642 SE2d 111) (2007).
See Hardeman v. State, 280 Ga. App. 168, 169 (1) (633 SE2d 595) (2006).
But see In the Interest of J. A. L., 284 Ga. App. 220 (1) (644 SE2d 162) (2007) (“In order to take judicial notice of any fact, the trial court ‘must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.’ ”).
See Parker, supra at 716 (2) (b).
See id. at 717 (2) (c).
See id.
See Nusser v. State, 275 Ga. App. 896, 899 (622 SE2d 105) (2005).
See id.
See Frazier v. State, 277 Ga. App. 881, 883 (d) (627 SE2d 894) (2006).
See Bibbins, supra.
See Frazier, supra.
See Williams, supra at 601 (2).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.