Tolbert v. Toole, 296 Ga. 357

Background

David Tolbert was indicted (2007) for armed robbery and related felonies; jury convicted him after three trials (Nov. 2009) and he was sentenced to life. The Court of Appeals affirmed; certiorari denied.
Before trial Tolbert (then represented) filed a pro se motion to remove counsel and a pro se statutory speedy-trial motion; the trial court orally denied the pro se motion on July 17, 2008 and indicated counsel would be relieved, but no signed order appears in the record.
On July 31 the public defender’s office filed a Notice of Withdrawal (no signed order permitting withdrawal in the record). On Aug. 1 Tolbert filed a pro se notice of appeal from the oral denial; that same day a private attorney signed an entry of appearance (filed Aug. 4).
Tolbert later filed a pro se habeas petition asserting the Aug. 1, 2008 pro se notice of appeal had never been resolved and therefore deprived the trial court of jurisdiction to try him, rendering his convictions void; the habeas court denied relief as procedurally defaulted.
The Supreme Court of Georgia granted review to decide (1) whether the habeas court erred in finding procedural default, and (2) whether the record shows Tolbert’s pro se notice was effective to divest the trial court of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether habeas court properly dismissed Tolbert’s jurisdictional claim as procedurally defaulted	Tolbert argued the claim was jurisdictional and not waivable; habeas court should not have applied procedural default	Warden argued Tolbert failed to raise the issue below or on direct appeal, so it is defaulted	Court: Habeas court erred in relying on procedural default because a valid pretrial appeal raises nonwaivable jurisdictional defect, but error was harmless because claim fails on the record
Whether Tolbert’s Aug. 1, 2008 pro se notice of appeal was effective to divest the trial court of jurisdiction (i.e., acted as supersedeas)	Tolbert contended he was pro se when he filed the notice and it deprived the trial court of jurisdiction, making subsequent trials and convictions void	Warden pointed to absence of a signed withdrawal order and contemporaneous counsel appearances indicating Tolbert remained represented; pro se filing thus ineffective	Court: The record does not show Tolbert was unrepresented on Aug. 1; therefore the pro se notice was invalid and did not divest jurisdiction; habeas relief denied
Who bears burden to show trial-court error and adequacy of record	Tolbert bears burden to show error from the record and to establish he was unrepresented when filing the notice	Warden contends Tolbert failed to carry burden; existing filings and later counsel appearances support representation	Court: Affirms burden on Tolbert; record fails to prove he was pro se, so appellant did not meet burden and relief is denied

Key Cases Cited

Wetherington v. State, 295 Ga. 172 (discussion that a valid notice of appeal acts as a supersedeas)
Chambers v. State, 262 Ga. 200 (appeal of pretrial ruling deprived trial court of jurisdiction and rendered subsequent convictions void)
Hill v. State, 281 Ga. 795 (oral order is not appealable until reduced to a written, signed, filed order)
Hughes v. Sikes, 273 Ga. 804 (appellate court, not trial court, determines sufficiency of notice to invoke appellate jurisdiction)
Scroggins v. State, 288 Ga. 346 (same principle on appeal sufficiency)
Strickland v. State, 258 Ga. 764 (circumstances where trial court retains jurisdiction despite appeal when motion is dilatory/frivolous)
Cotton v. State, 279 Ga. 358 (a defendant cannot be simultaneously represented and proceed pro se; pro se filings while represented are ineffective)
Williams v. Moody, 287 Ga. 665 (same rule on ineffectiveness of pro se filings by represented defendant)
State v. White, 282 Ga. 859 (an order is ineffective until it is signed and filed)
Adamson v. Sanders, 279 Ga. 187 (party challenging ruling must affirmatively show error from the record)