]”), with id. at 849, 452 S.E.2d 492 at (Carley, J., concurring specially) (“[I]f a defendant in a capital case makes a demand for speedy trial and, subsequently, is granted a continuance which expires during the same term at which his demand was made, he can nevertheless insist that he be tried at either of the two regular terms of court following the term in which the demand was made. In such a situation, the grant of defendant's request for a continuance would not waive his right to seek discharge and acquittal if he were not tried at the two regular terms of court which were ‘convened and adjourned after the term’ during which he made his demand for speedy trial[.]”), and Davis v. State, 221 Ga.App. 168, 170(1), 471 S.E.2d 14 (1996) (noting the concerns addressed in Justice Carley's concurrence in Rice). FN25. SeeIn the Interest of Z.K., 285 Ga.App. 150, 150–51 & n. 2, 645 S.E.2d 637 (2007) (physical precedent only) (collecting citations in support of proposition that the waiver of a statutory right, rather than constitutional, must be knowing, intelligent, and voluntary), disapproved of on other grounds byIn the Interest of J.M.B., 296 Ga.App. 786, 789, 676 S.E.2d 9 (2009).
]"), with id. at (Carley, J., concurring specially) ("[I]f a defendant in a capital case makes a demand for speedy trial and, subsequently, is granted a continuance which expires during the same term at which his demand was made, he can nevertheless insist that he be tried at either of the two regular terms of court following the term in which the demand was made. In such a situation, the grant of defendant's request for a continuance would not waive his right to seek discharge and acquittal if he were not tried at the two regular terms of court which were `convened and adjourned after the term' during which he made his demand for speedy trial[.]"), and Davis v. State, 221 Ga. App. 168, 170 (1) ( 471 SE2d 14) (1996) (noting the concerns addressed in Justice Carley's concurrence in Rice).See In the Interest of Z. K., 285 Ga. App. 150, 150-51 n. 2 ( 645 SE2d 637) (2007) (physical precedent only) (collecting citations in support of proposition that the waiver of a statutory right, rather than constitutional, must be knowing, intelligent, and voluntary), disapproved of on other grounds by In the Interest of J. M. B., 296 Ga. App. 786, 789 ( 676 SE2d 9) (2009).
However, this statute has been interpreted, at least in obiter dicta, to mean that a capital case must be tried within two terms after the term in which the speedy trial demand is filed. See, e.g., Rice v. State, 264 Ga. 846, 847 ( 452 SE2d 492) (1995); Orvis, supra at 6 (1); Dotson, supra at 788-789 (1); Davis v. State, 221 Ga. App. 168, 169 (1) ( 471 SE2d 14) (1996); Bailey, supra at 391-392 (1). Such an interpretation of the statute leads to the conclusion that, if the speedy trial demand had been sufficient, this case was required to be tried within two terms following the term in which it was filed.
Although superseded by subsequent enactments, including the present statute as enacted in 1993 (Ga. L. 1993, pp. 805-806, § 1), this original act demonstrated the legislature's intent that commencing a term "on the third and fourth Mondays" in a particular month meant that it was still only one term, not two terms with one lasting only a week. The court could begin its term on either of those two Mondays. See Davis v. State, 221 Ga. App. 168, 169 fn. 1 ( 471 S.E.2d 14) (1996) ("The terms of court in Newton County Superior Court commence on the second and third Mondays in January, April, July, and October pursuant to OCGA § 15-6-3(2) (A). In practice, however, the terms appear to actually begin on the third Monday of these months.")
Although armed robbery is not a capital offense punishable by death, O.C.G.A. § 17-7-171 and not O.C.G.A. § 17-7-170 is the statute that applies to that offense. Simmons v. State, 149 Ga. App. 830, 831 (1) ( 256 S.E.2d 79) (1979); see Davis v. State, 221 Ga. App. 168, 169 (1) ( 471 S.E.2d 14) (1996). Under O.C.G.A. § 17-7-171, to effectuate a speedy trial demand, a defendant must fully comply with a three-pronged procedure.
The State presented evidence that Kirkland personally and directly participated in the criminal acts charged. Davis v. State, 221 Ga. App. 168, 170 (2) ( 471 S.E.2d 14) (1996). Kirkland challenges the decision to excuse a particular juror for cause on the basis of work responsibilities where other jurors were not excused for the same reason.
OCGA § 16-8-41 (a). Because the evidence demonstrated completion of the greater offense, no charge on the theft by taking was required. Davis v. State, 221 Ga. App. 168, 170 (3) ( 471 S.E.2d 14) (1996). Accordingly, counsel's failure to request the charge did not constitute a deficiency.
Little v. State, 188 Ga. App. 410 (1) ( 373 S.E.2d 260) (1988) (OCGA § 17-7-170's speedy trial protections do not attach until the indictment is returned). Freeman filed his second demand on March 10, 1995, after the time allotted under OCGA § 17-7-171 (a). See Davis v. State, 221 Ga. App. 168, 169 (1) ( 471 S.E.2d 14) (1996) (OCGA § 17-7-171 applies to armed robbery). There is no record that he obtained special permission to untimely file his second demand as contemplated by OCGA § 17-7-171 (a).