FOURTH DIVISION

DILLARD, P. J.,

RICKMAN and BROWN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

August 24, 2020

In the Court of Appeals of Georgia

A20A1296. MIZE v. THE STATE.

RICKMAN, Judge.

Following a jury trial, Eric Mize was convicted of rape, kidnapping with bodily

injury, aggravated sodomy, and aggravated assault. On appeal, Mize contendsthat the

trial court erred by denying his motion for new trial because he was prejudiced by the

over 10 year delay in the appellate process. For the following reasons, we vacate the

denial of Mize’s motion for new trial and remand the case for proceedings consistent

with this opinion. 

In May 2007, Mize was indicted for one count of rape, two counts of

kidnapping with bodily injury, one count of aggravated sodomy, one count of

aggravated battery, and one count of aggravated assault. In August 2009, Mize was

convicted of rape, kidnapping with bodily injury, aggravated sodomy, and aggravated
assault.

1 Less than a month after his convictions, Mize filed a timely motion for new

trial. 

In February 2019, the trial court issued an order stating that,

[o]n September 16, 2009 [Mize] filed a Motion for New Trial in the

captioned matter. To date that Motion has not been heard, either because

the parties were waiting for transcripts, counsel did not schedule a

hearing or [M]ize chose not to pursue any post-conviction action.

Whatever the reason for the delay, the Motion remains in a “pending”

status and needs to be resolved.

The order set both a scheduling conference and a date for a hearing on Mize’s

motion for new trial. In December 2019, following a hearing, the trial court denied

Mize’s motion for new trial. 

Mize contends that the trial court erred by denying his motion for new trial

because he was prejudiced by the over 10 year delay in the appellate process. 

Our Supreme Court

has addressed the proper resolution of claims asserting due process

violations based on inordinate appellate delay, and determined that the

1 Mize was also found guilty of another count of kidnapping with bodily injury

but that conviction merged with his conviction on the other count of kidnapping with

bodily injury for the purposes of sentencing. After the close of the evidence, the trial

court granted a directed verdict of acquittal for the one of count aggravated battery. 

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appropriate analysis is application of the four speedy trial factors set

forth in Barker v. Wingo, [407 U. S. 514 (92 SCt 2182, 33 LE2d 101)

(1972)] which are the length of the delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.

(Citation and punctuation omitted.) Jones v. State, 322 Ga. App. 310, 311 (744 SE2d

830) (2013). “These factors are each to be balanced in an exercise of the trial court’s

discretion, which we review for abuse.” (Citation and punctuation omitted.) Id. “In

the Barker v. Wingo context, the Supreme Court has noted that it is imperative,

therefore, that in such cases the trial court enter findings of fact and conclusions of

law consistent with Barker. Absent such findings, there is no exercise of discretion

for this Court to review.” (Citation and punctuation omitted.) Id. 

Here, the trial court’s order lists the Barker factors and finds that the length of

the delay was excessive, that the reason for delay was not clear, and that “there is no

evidence [Mize] did much if anything to assert his appellate rights during the ten year

delay.” As to the prejudice prong, the trial court stated that “[Mize] has provided no

evidence of prejudice resulting from the delay.” The trial court concluded that

“[c]onsidering all four factors together, it does not appear that [Mize’s] due process

rights were violated[.]” 

3
The trial court’s finding that Mize provided no evidence of prejudice resulting

from the delay is not supported by the record. Mize presented evidence before the

trial court that his trial counsel had been suspended, disbarred, and then died during

the delay in hearing his motion for new trial. The trial court did not address this

evidence at all, but noted when denying Mize’s ineffective assistance of counsel

claims that “[w]ithout the benefit of trial counsel’s testimony concerning his actions

during his representation of [Mize], it is very difficult for th[e] presumption [that

counsel’s representation was within the wide range of reasonable professional

assistance] to be overcome.” We cannot reconcile the trial court’s finding that Mize

presented no evidence to support his appellate delay claim with the trial court’s

implicit finding that he was somewhat harmed by the lack of testimony by his trial

counsel when analyzing his ineffective assistance of counsel claim. 

“[T]he record clearly shows that [Mize] did attempt to demonstrate prejudice,

and the trial court abused its discretion by basing its ruling in part on a finding that

he did not.” Jones, 322 Ga. App. at 312.

2 Accordingly, we vacate the trial court’s

2 We are making no comment on whether Mize actually suffered prejudice from

the appellate delay, we are only recognizing that the trial court’sfinding that he failed

to present specific evidence of prejudice was belied by the record. 

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order denying Mize’s motion for new trial and remand this case for the trial court to

reconsider the Barker factors. See id. 

Judgment vacated; case remanded. Dillard, P. J., and Brown, J., concur.

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