"[W]hile the state has a duty to bring [the defendant] to speedy trial, the defendant has a responsibility to assert that right." State v. Lively, 155 Ga. App. 402, 405 ( 270 SE2d 812) (1980). Even though a defendant is not procedurally barred from raising a constitutional speedy trial claim at any time up to the point of trial, a defendant's failure to assert his claim in a timely manner can be weighed heavily against him as part of the Barker analysis. Bass v. State, 275 Ga.App. 259 ( 620 SE2d 184) (2005).

(3) Assertion of the Right to Speedy Trial Relying on State v. Lively, 155 Ga. App. 402 ( 270 SE2d 812) (1980), the State contends that Porter never properly asserted his right to a speedy trial, because a motion to dismiss an indictment for violation of speedy trial rights, absent a demand for trial, should not be considered an assertion of the right in the Barker analysis. Lively held that "[t]he motion to dismiss or quash the indictment for denial of speedy trial, which did not request an immediate trial, is not a demand for trial and is not an assertion of the right to speedy trial." Id. at 406 (citations to Barker and emphasis omitted).

Since there was no evidence that either the State or the passage of time was responsible for the loss of the tape, defendant did not carry her burden of showing the prejudice necessary to support a dismissal of the murder indictment lodged against her, and the grant of her plea in bar should be reversed. State v. Story, 209 Ga. App. 404 ( 433 S.E.2d 599) (1993); State v. Lively, 155 Ga. App. 402 (1) ( 270 S.E.2d 812) (1980); State v. Weeks, 136 Ga. App. 637 ( 222 S.E.2d 117) (1975), where the appellate courts applied the Barker v. Wingo factors and reversed the trial courts' grants of the pleas in bar. The majority's affirmance of the trial court's action sends yet another message to criminal defendants — lose material important to your defense and you can claim prejudice if you are not tried within a year of your arrest or indictment.

This does not end our analysis, however, because even a sufficient demand must have been made in due course. 155 Ga. App. 402 ( 270 SE2d 812) (1980). (Citations omitted; emphasis in original.)

Even when he moved for dismissal of the indictment by asserting denial of speedy trial and prejudice, Giddens did not ask for a trial. State v. Lively, 155 Ga. App. 402, 406 ( 270 SE2d 812) (1980). On these facts, we find no basis for the trial court's conclusion that Giddens showed prejudice to his defense sufficient to weigh this Barker factor in his favor.

"[W]hile the state has a duty to bring [the defendant] to speedy trial, the defendant has a responsibility to assert that right." State v. Lively, 155 Ga. App. 402, 405 ( 270 SE2d 812) (1980); see also Collingsworth v. State, 224 Ga. App. 363, 366 (1) ( 480 SE2d 370) (1997) (balancing test is highly subjective because the defendant has a responsibility to assert a speedy trial claim and may have a potential interest in delaying any trial). 4. "The prejudice created by the delay is the fourth and final factor in our analysis, in which we consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired."

" (Emphasis omitted.) State v. Lively, 155 Ga. App. 402, 405 ( 270 S.E.2d 812) (1980). The trial court did not abuse its discretion in adhering to such weight of the equities in the matter at hand.

" Haisman at 898. This balancing test is a highly subjective, flexible approach because the defendant has a responsibility to assert a speedy trial claim and unlike the case with other constitutional rights, he may have a potential interest in delaying any trial. State v. Lively, 155 Ga. App. 402, 404 ( 270 S.E.2d 812). Denial of speedy trial may work to a defendant's advantage, so (absent a statute such as OCGA § 17-7-170) there is no per se prejudice to a defendant from delay of trial. Harris v. Hopper, 236 Ga. 389 ( 224 S.E.2d 1). "[W]hile the defendant has a right to speedy trial, society has a corresponding equivalent right to bring him to trial; and while the state has a duty to bring him to speedy trial, the defendant has a responsibility to assert that right.

The right to speedy trial is unique among constitutional rights because its deprivation can work to the advantage of the accused; failure to provide a speedy trial does not per se prejudice his ability to defend himself. State v. Lively, 155 Ga. App. 402, 403 ( 270 S.E.2d 812). The basis of the subjective balancing approach of Barker is that the defendant has some responsibility to assert a speedy trial claim even though it is the State's duty to bring him to trial, and the defendant has a potential interest in either having a speedy trial or delaying any trial. Lively, supra at 404. There is no allegation of ineffective assistance of counsel here, so we can assume that appellant's failure to demand a trial was beneficial to him.

The basis for the development of the highly subjective, flexible approach in Barker, is that the defendant is held to have some responsibility to assert a speedy trial claim . . . even though it is the state's duty to bring him to trial . . . ; and that unlike other constitutional rights, both society and the individual criminal defendant have a potential interest in either having a speedy trial or delaying any trial." State v. Lively, 155 Ga. App. 402, 404 ( 270 S.E.2d 812) (1980). In evaluating the first factor here, the length of the delay, we must first evaluate the effect of the trial court's granting of the State's motion to arrest judgment on July 27, with respect to the June 11, 1992 "final dispositions" of the cases.