Leggett v. State

184 Ga. App. 398 (1987)

361 S.E.2d 546

LEGGETT v. THE STATE.

74968.

Court of Appeals of Georgia.

Decided September 30, 1987.

Robert C. Harper, for appellant.

Lloyd E. Thompson, Jr., Solicitor, for appellee.

POPE, Judge.

On October 23, 1986 defendant Leggett was arraigned for the offense of driving under the influence of alcohol. Defendant appeared at the hearing without an attorney, entered a plea of not guilty and waived his right to a jury trial. The trial date was set for March 5, 1987. Two days before trial defendant retained counsel who filed, on behalf of defendant, a written demand for jury trial on March 4, the day before the trial was to commence. When defendant's case was called for trial his attorney announced defendant was ready for a jury trial but objected to a non-jury trial. The trial judge ruled the demand for jury trial, in revocation of defendant's earlier waiver of that right, was untimely made. Defendant was convicted after a bench trial.

1. Waiver of trial by jury may be revoked "provided [defendant] acts timely and in such season as not substantially to delay or impede the cause of justice (Cain v. State, 102 Ga. 610, 612 (29 SE 426) [(1897)]), and especially where the State makes no point as to delay or prejudice. The record does not disclose any effort on the part of the accused to delay the trial, nor was it opposed by the State, and there is no indication that it would have substantially delayed the cause of justice." (Citations, punctuation and indention omitted.) Fleming v. State, 139 Ga. App. 849, 850 (229 SE2d 800) (1976). The fact that the trial calendar had already been published when defendant revoked his waiver of trial by jury does not provide a ground for denying the demand for jury trial. Carleton v. State, 176 Ga. App. 399 (336 SE2d 333) (1985). Therefore, the conviction must be reversed and the case remanded for trial by jury.

2. Because the conviction is overturned and the case remanded, we need not address defendant's second enumeration of error.

Judgment reversed and case remanded. Birdsong, C. J., and Deen, P. J., concur.