Barker factors in Georgia

2022See Williams v. State, 279 Ga. 106, 109 (1) (d) ( 610 SE2d 32 ) (2005) (“The length of the delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis[.]”) (citation and punctuation omitted). “[O]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” Porter, 288 Ga. at 531 (2) (c) (4).

2022See Williams v. State, 279 Ga. 106, 109 (1) (d) ( 610 SE2d 32 ) (2005) (“The length of the delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis[.]”) (citation and punctuation omitted). “[O]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” Porter, 288 Ga. at 531 (2) (c) (4).

2024The 25 trial court found that McCullum had been incarcerated out of state for eight of the ten-plus years that comprised the delay, thus miti- gating the weight the delay’s length had against the State, and ruled that “[w]eighing the length of the delay under the unique facts and circumstances of this case, the delay should be weighed against the State but not heavily.” We agree that the delay was uncommonly long, yet under the circumstances of this case, we see no abuse of the trial court’s discretion in weighing that factor against the State but not heavily given that a presumptively prejudi

2024The 25 trial court found that McCullum had been incarcerated out of state for eight of the ten-plus years that comprised the delay, thus miti- gating the weight the delay’s length had against the State, and ruled that “[w]eighing the length of the delay under the unique facts and circumstances of this case, the delay should be weighed against the State but not heavily.” We agree that the delay was uncommonly long, yet under the circumstances of this case, we see no abuse of the trial court’s discretion in weighing that factor against the State but not heavily given that a presumptively prejudi

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2012Pretrial delay forms a part of the actual prejudice prong of the Barker analysis, “ ‘with the presumption that pretrial delay has prejudiced the accused intensifying over time.’ ” (Citations and punctuation omitted.) Fallen v. State, 289 Ga. 247, 248 ( 710 SE2d 559 ) (2011), quoting Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994).

2012Pretrial delay forms a part of the actual prejudice prong of the Barker analysis, “ ‘with the presumption that pretrial delay has prejudiced the accused intensifying over time.’ ” (Citations and punctuation omitted.) Fallen v. State, 289 Ga. 247, 248 ( 710 SE2d 559 ) (2011), quoting Boseman v. State, 263 Ga. 730, 732 (1) (a) ( 438 SE2d 626 ) (1994).

2012Nevertheless, “where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” Williams v. State, 277 Ga. 598, 601 (1) (e) ( 592 SE2d 848 ) (2004). (a) As in the earlier appeal, the State concedes and the trial court properly found that the 48-month delay from Hartsfield’s arrest to his indictment plus the subsequent 15-month delay prior to Hartsfield’s initial motion to dismiss was presumptively prejudicial. (b) Given that the threshold inquiry has been met, the tri

2012Nevertheless, “where . . . the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” Williams v. State, 277 Ga. 598, 601 (1) (e) ( 592 SE2d 848 ) (2004). (a) As in the earlier appeal, the State concedes and the trial court properly found that the 48-month delay from Hartsfield’s arrest to his indictment plus the subsequent 15-month delay prior to Hartsfield’s initial motion to dismiss was presumptively prejudicial. (b) Given that the threshold inquiry has been met, the tri

2019If the presumptive-prejudice threshold is crossed, the trial court must consider the following four Barker factors: "(1) the length of the delay; (2) the reasons for it; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant." Johnson v. State , 300 Ga. 252 , 257, 794 S.E.2d 60 (2016) (citing Barker v. Wingo , 407 U.S. 514 , 530, 92 S.Ct. 2182 , 33 L.E.2d 101 (1972), and Doggett v. United States , 505 U.S. 647 , 651, 112 S.Ct. 2686 , 120 LE2d 520 (1992) ).

2019If the presumptive-prejudice threshold is crossed, the trial court must consider the following four Barker factors: "(1) the length of the delay; (2) the reasons for it; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant." Johnson v. State , 300 Ga. 252 , 257, 794 S.E.2d 60 (2016) (citing Barker v. Wingo , 407 U.S. 514 , 530, 92 S.Ct. 2182 , 33 L.E.2d 101 (1972), and Doggett v. United States , 505 U.S. 647 , 651, 112 S.Ct. 2686 , 120 LE2d 520 (1992) ).

2016Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) ( 620 SE2d 184 ) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) ( 555 SE2d 710 ) (2001). (b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long. “[A] trial court’s order must provide sufficient findings of fact

2016Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) ( 620 SE2d 184 ) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) ( 555 SE2d 710 ) (2001). (b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long. “[A] trial court’s order must provide sufficient findings of fact

2018In Chatman v. Mancill , 280 Ga. 253 , 256-260 (2) (a)-(e), 626 S.E.2d 102 (2006), we determined that constitutional speedy appeal claims in criminal cases in which a death sentence was not imposed should be evaluated by application of the following "modified Barker factors": length of the delay, reason for the delay, defendant's assertion of his right, and prejudice, i.e., whether the delay prejudiced the defendant's ability to assert his arguments on appeal and, if so, whether the delay prejudiced the defendant's defenses in the event of a retrial or resentencing.

2018In Chatman v. Mancill , 280 Ga. 253 , 256-260 (2) (a)-(e), 626 S.E.2d 102 (2006), we determined that constitutional speedy appeal claims in criminal cases in which a death sentence was not imposed should be evaluated by application of the following "modified Barker factors": length of the delay, reason for the delay, defendant's assertion of his right, and prejudice, i.e., whether the delay prejudiced the defendant's ability to assert his arguments on appeal and, if so, whether the delay prejudiced the defendant's defenses in the event of a retrial or resentencing.

2015However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.” Ditman, 301 Ga. App. at 190 (2) (a) (citation omitted); Fallen v. State, 289 Ga. 247, 248 (1) ( 710 SE2d 559 ) (2011) (“The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.”) (citation and punctuation omitted).

2015However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.” Ditman, 301 Ga. App. at 190 (2) (a) (citation omitted); Fallen v. State, 289 Ga. 247, 248 (1) ( 710 SE2d 559 ) (2011) (“The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.”) (citation and punctuation omitted).

2022See Buckner, 292 Ga. at 393 (3) (a court must weigh all of the relevant factors, “along with any other relevant circumstances, in a difficult and sensitive balancing process”) (citation and punctuation omitted); Porter, 288 Ga. at 534 (2) (e) (holding that the trial court could not properly balance the Barker factors because it made no factual findings as to one factor and failed to address the reasons for eight years of delay, and remanding for the trial court to “exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate w

2022See Buckner, 292 Ga. at 393 (3) (a court must weigh all of the relevant factors, “along with any other relevant circumstances, in a difficult and sensitive balancing process”) (citation and punctuation omitted); Porter, 288 Ga. at 534 (2) (e) (holding that the trial court could not properly balance the Barker factors because it made no factual findings as to one factor and failed to address the reasons for eight years of delay, and remanding for the trial court to “exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate w

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2021Thus, under these circumstances, the proper calculation for delay is the time between the 37 505 U.S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992). 38 Ruffin v. State, 284 Ga. 52, 55 (2) ( 663 SE2d 189 ) (2008). 39 Id. (punctuation & footnote omitted); see Layman v. State, 284 Ga. 83, 85 ( 663 SE2d 169 ) (2008) (“The court must first consider the length of delay when conducting a Barker analysis.

2017“The Barker factors include the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. (citation and punctuation omitted).

2017“The Barker factors include the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. (citation and punctuation omitted).

2017Even assuming that the first three Barker factors — length of the delay, the reason for the delay, and the defendant’s assertion of his right — weigh in favor of Veal, his due process claim nevertheless fails because Veal failed to show that he was prejudiced by the delay See Loadholt v. State, 286 Ga. 402, 406 (4) ( 687 SE2d 824 ) (2010). “[I]n determining whether an appellate delay violates due process, prejudice, unlike in the speedy trial context, is not presumed but must be shown.” Glover, 291 Ga. at 155 (3).

2017Even assuming that the first three Barker factors — length of the delay, the reason for the delay, and the defendant’s assertion of his right — weigh in favor of Veal, his due process claim nevertheless fails because Veal failed to show that he was prejudiced by the delay See Loadholt v. State, 286 Ga. 402, 406 (4) ( 687 SE2d 824 ) (2010). “[I]n determining whether an appellate delay violates due process, prejudice, unlike in the speedy trial context, is not presumed but must be shown.” Glover, 291 Ga. at 155 (3).

2005See Nelloms, 274 Ga. at 180-181 (although first two Barker factors weighed in favor of defendant, trial court was entitled to deny defendant’s constitutional speedy trial claim when defendant delayed in asserting his right and could show no prejudice resulting from the delay); Johnson, 268 Ga. at 417-418 (2) (same).

2001Johnson v. State, 268 Ga. 416, 417 (2) ( 490 SE2d 91 ) (1997). *759 In this case, the 25-month delay from arrest to trial triggers a threshold finding of presumptive prejudice, requiring an analysis of the remaining Barker factors.

2022See Williams v. State, 279 Ga. 106, 109 (1) (d) ( 610 SE2d 32 ) (2005) (“The length of the delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis[.]”) (citation and punctuation omitted). “[O]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” Porter, 288 Ga. at 531 (2) (c) (4).

2022See Williams v. State, 279 Ga. 106, 109 (1) (d) ( 610 SE2d 32 ) (2005) (“The length of the delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis[.]”) (citation and punctuation omitted). “[O]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” Porter, 288 Ga. at 531 (2) (c) (4).

2022See Labbee, 362 Ga. App. at 562-563 (1)-(2) (a), 565 (2) (b) (iv). 10 necessary analysis.6 See Johnson, 291 Ga. at 868 (3) (concluding that the trial court had erred in its consideration of the Barker-Doggett factors and remanding “for the trial court to correctly apply the pertinent legal principles” and reconsider the defendant’s speedy trial claim); Porter, 288 Ga. at 534 (2) (e) (holding that “the trial court could not properly balance the Barker factors” due to errors and omissions in its speedy trial analysis, which required a remand for the court “to exercise its discretion again using

2022See Labbee, 362 Ga. App. at 562-563 (1)-(2) (a), 565 (2) (b) (iv). 10 necessary analysis.6 See Johnson, 291 Ga. at 868 (3) (concluding that the trial court had erred in its consideration of the Barker-Doggett factors and remanding “for the trial court to correctly apply the pertinent legal principles” and reconsider the defendant’s speedy trial claim); Porter, 288 Ga. at 534 (2) (e) (holding that “the trial court could not properly balance the Barker factors” due to errors and omissions in its speedy trial analysis, which required a remand for the court “to exercise its discretion again using

2019Accordingly, with the Barker factors in mind, we review the trial court’s ruling for abuse of discretion.40 In its order denying the motion for discharge and acquittal, the trial court ruled that the trial delays were largely attributable to Stinson, who had 38 See Cobble v. State, 268 Ga. App. 792, 794 (2) ( 603 SE2d 86 ) (2004) (“[A]rguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error.”) (punctuation and footnote omitted). 39 Barker, 407 U. S. at 530-533 (IV); see also Doggett v. United States, 505 U. S. 647, 651 (II) ( 112 SCt 268

2019Accordingly, with the Barker factors in mind, we review the trial court’s ruling for abuse of discretion.40 In its order denying the motion for discharge and acquittal, the trial court ruled that the trial delays were largely attributable to Stinson, who had 38 See Cobble v. State, 268 Ga. App. 792, 794 (2) ( 603 SE2d 86 ) (2004) (“[A]rguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error.”) (punctuation and footnote omitted). 39 Barker, 407 U. S. at 530-533 (IV); see also Doggett v. United States, 505 U. S. 647, 651 (II) ( 112 SCt 268

2012The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensifying) over time.” (Citations and punctuation omitted.) Wilkie v. State, 290 Ga. 450, 451 ( 721 SE2d 830 ) (2012).

2012The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensifying) over time.” (Citations and punctuation omitted.) Wilkie v. State, 290 Ga. 450, 451 ( 721 SE2d 830 ) (2012).

2016Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) ( 620 SE2d 184 ) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) ( 555 SE2d 710 ) (2001). (b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long. “[A] trial court’s order must provide sufficient findings of fact

2016Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) ( 620 SE2d 184 ) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) ( 555 SE2d 710 ) (2001). (b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long. “[A] trial court’s order must provide sufficient findings of fact

2014Under the Barker analysis, the kinds of prejudice that a defendant may suffer from an unreasonable delay are “[i] oppressive pretrial incarceration, [ii] anxiety and concern of the accused, and [iii] the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.” Singleton, 317 Ga. App. at 643 (2) (d) (citing Pickett, 288 Ga. at 677 (2) (c) (4)).

2014Under the Barker analysis, the kinds of prejudice that a defendant may suffer from an unreasonable delay are “[i] oppressive pretrial incarceration, [ii] anxiety and concern of the accused, and [iii] the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.” Singleton, 317 Ga. App. at 643 (2) (d) (citing Pickett, 288 Ga. at 677 (2) (c) (4)).

2015However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.” Ditman, 301 Ga. App. at 190 (2) (a) (citation omitted); Fallen v. State, 289 Ga. 247, 248 (1) ( 710 SE2d 559 ) (2011) (“The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.”) (citation and punctuation omitted).

2015However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.” Ditman, 301 Ga. App. at 190 (2) (a) (citation omitted); Fallen v. State, 289 Ga. 247, 248 (1) ( 710 SE2d 559 ) (2011) (“The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time.”) (citation and punctuation omitted).

2012See Harris v. State, 284 Ga. 455 ( 667 SE2d 361 ) (2008) (where no showing of oppressive pre-trial incarceration or undue anxiety and no claim of actual prejudice to defense, presumed prejudice attending more than five-year delay insufficient to overcome defendant’s failure to assert speedy trial right in a timely fashion).

2010See also Harris, 284 Ga. at 456-457 (no prejudice where defendant waited five years to assert the right to a speedy trial). (d) The last of the four Barker factors is prejudice.

2025And “[i]t is not the role of an appellate court to weigh the Barker factors in the first instance.” Redding, 313 Ga. at 735 (2).5 (d) In assessing the assertion-of-the-right factor, the trial court must consider “whether the defendant asserted the right to a speedy trial in due course.” Redding, 318 Ga. at 229 (2) (c) (citation and punctuation omitted).

2025And “[i]t is not the role of an appellate court to weigh the Barker factors in the first instance.” Redding, 313 Ga. at 735 (2).5 (d) In assessing the assertion-of-the-right factor, the trial court must consider “whether the defendant asserted the right to a speedy trial in due course.” Redding, 318 Ga. at 229 (2) (c) (citation and punctuation omitted).

2022Thus, “after making a threshold determination that the delay was long enough to create presumptive prejudice, the trial court must consider the delay a second time as part of the prejudice factor of the four-factor Barker analysis.” Goffaux, 313 Ga. App. at 429 .

2022Thus, “after making a threshold determination that the delay was long enough to create presumptive prejudice, the trial court must consider the delay a second time as part of the prejudice factor of the four-factor Barker analysis.” Goffaux, 313 Ga. App. at 429 .

2016Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) ( 620 SE2d 184 ) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) ( 555 SE2d 710 ) (2001). (b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long. “[A] trial court’s order must provide sufficient findings of fact

2016Although the trial court made no finding of presumptive prejudice, the 45-month delay in this case was sufficient to raise a presumption of prejudice such that the trial court was required to engage in the second part of the Barker-Doggett test, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) ( 620 SE2d 184 ) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) ( 555 SE2d 710 ) (2001). (b) The Balancing Test: (i) Whether the Delay Was Uncommonly Long. “[A] trial court’s order must provide sufficient findings of fact