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Durham v. The State

The Court vacated defendant's convictions for rape and child molestation and remanded the case for the trial court to enter a written order including findings of fact and conclusions of law as to defendant's claimed speedy-trial violation.

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Phipps, Senior Appellate Court Judge.On appeal from his convictions for rape and child molestation, Gary Durham argues that the trial court erred in denying his plea in bar asserting a violation of his constitutional speedy-trial right and in failing to grant his motion for mistrial. Durham also argues that the evidence was insufficient. Because the record shows that the trial court never entered a written order including findings of fact and conclusions of law as to Durham’s claimed speedy-trial violation, we vacate Durham’s conviction and remand for entry of an order including proper findings in accordance with Higgenbottom v. State, 288 Ga. 429 (704 SE2d 786) (2011), and Barker v. Wingo, 407 U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972). Constitutional speedy trial claims brought under the Sixth Amendment and the Georgia Constitution are evaluated according to the fourpart test established in Barker, supra. The Barker test requires the court to consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right [to speedy trial], and (4) the prejudice to the defendant. The fourth factor requires the court to 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.

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