*1 Judge Banke and Presid- Presiding I am authorized to state that Judge Carley this Judge McMurray joins this dissent. ing join of the majority dissent to Division 3 March Decided April
Rehearing denied Kniffen,
Daniel C. appellants. Strain, M. appellee.
John v. THE STATE.
73509. BURNETT Judge. Carley,
Appellant violating was in 1980 counts indicted for three Georgia initially Controlled Act. He was Substances afforded by appointed However, appellant’s appointed sentation counsel. coun- subsequently sel from representation. pre-trial withdrew At a hearing during superior court, appel- 1982 Term October appeared representation lant legal court informed the he repeated that did not In response have counsel. to trial court’s however, inquiries, appellant financially stated he was able that to employ an attorney appointment that he had no for the desire that, counsel. He further stated the call of his trial scheduled following January, represented by he would be retained counsel. Appellant was if he specifically advised could not secure counsel trial, reason, for his “for was contact either assistant [he to] [the attorney] district trial immediately or ... appoint- so the [the court] ment But if days made. waited until three or four [could] [he] . before . . . . that . warrant continu- [would] a[nother] Appellant ance.” stated that he understood. January however,
At the call of appellant his trial represented by appellant counsel. was determined that had not attorney day even been contact or trial. with until so to appel- That to appellant. declined Based non-indigent, lant’s status as a trial refused Appellant counsel. was also refused time within additional which appellant required Consequently, retain counsel. jury guilty at his three
himself trial. The returned verdicts on all Appellant from appeals judgments counts. of conviction jury’s from the of his sentences entered on the verdicts and denial for new motion trial. go
1. The trial would be ruling appellant court’s subject enumerations of several related without counsel is represented to be had the Appellant urges of error. him. right was never waived which con- a state cases both a federal and criminal have Defendants alternative, or, in represented by stitutional *2 However, indigent defendants only themselves. is a non-indigent For de- must counsel. the trial court whom right only counsel to fendant, appellant, such as constitutional “ his own selection when- him to be defended counsel ‘entitles reasonable attorney and uses willing employ to an ever he is able ” Shaw v. (Emphasis original.) diligence to obtain his services.’ 448) (1983). 109, (303 State, 111 251 Ga. SE2d may no to be waived. Since de- right The constitutional counsel representation by counsel and right simultaneous fendant has to necessarily right of the latter is a self-representation, his election right to rests waiver of the counsel waiver of the former. When self-representation, right of his alternative defendant’s election finding part of the trial court that “the record should reflect a chosen The validly proceed to record defendant has this choice made after the defendant was should also show that dangers aware of his to counsel and right made 194, v. Ga. (Emphasis supplied.) counsel.” Clarke 247 (275 49) (1981). voluntary 197 SE2d A election of the al- defendant’s not, right self-representation however, only circum- ternative may the right stances which the waiver of to counsel arise. Not- right his withstanding present a insistence defendant’s verbal counsel, may his past not to be tried without own actions nevertheless been Since right demonstrate that the waived. a de- right predicated upon diligence, to his own a fail- fendant’s counsel is right ure may on his to counsel constitute a waiver of the retain (223 (2) Ricketts, to v. generally counsel. See Bostick 236 306 Ga. 686) (281 (1976); State, 503) Ga. SE2d Ward 248 65 SE2d (1981); State, Fernandez v. 294 (5th 1973). (1984); Casey, Thus, United States v. F2d 151 Cir. presented appeared when with a defendant who has duty “the judge delay trial without retained a [has] proceedings long enough ascertain whether defendant [the has] diligence obtaining attorney’s] acted with reasonable services [an and whether absence attributable to reasons [the] [of is] beyond State, supra Shaw v. control.” [the defendant’s]
Turning to the judice, case sub the trial court determined some prior appellant indigent months that he trial that was not St appointed Compare app desire that him. (1) (290 439) (1982). ap 249 Ga. The trial prised appellant appointed he be unable his should request responsibility representation, him of his
to secure informed appointed to the scheduled trial counsel within a sufficient time repre- specifically date, failure either to secure warned grounds request appointment would not be sentation of counsel or to Notwithstanding appellant’s for another of his trial. continuance responsibilities regarding rights he his statement that his understood representation, appeared having requested trial without at his being pre- appointment of counsel and without retained counsel delayed proceedings long enough sent. The trial court to ascertain appellant securing diligence in whether had acted with reasonable representation and whether the absence of counsel was attributable to beyond appellant’s Compare supra. Shaw v. reasons The trial court was control.
clearly authorized to find that the lack of entirely diligence sentation was retaining attributable lack of generally Walker v. counsel. See Appellant contends, however, that there could be no viable day because, waiver of his receive a to counsel on the he did not regarding from the trial court ceeding pro showing above, se. As noted that such a *3 requirement purported is made the tion of his supra. a in those cases wherein the waiver of right voluntary to counsel arises from the defendant’s own invoca-
countervailing right self-representation. Zant, Clarke v. giving warning danger proceeding pro The of a of the of se obviously would be relevant to the waiver issue under those circum- ultimately upon stances, since the issue will turn whether the defend- relinquishment by right ant’s of one constitutional the election of an- product part. other is the of an informed and valid choice on his warning given Whether or not the has been would have no such rele- non-indigent in vance circumstances where a defendant has invoked right proceed his cases, to trial In without counsel. such the upon ultimate determination of waiver does turn the existence of present by proceed pro a informed choice the defendant to se. Waiver solely under those circumstances is a function of the de- prior diligence representation. securing fendant’s own Appellant certainly exercise in of warning danger proceeding needed no of the of pro By very right appel- his invocation of the to counsel at clearly danger self-repre- lant sentation. available to understood and wished to avoid the of determining
However, whether that choice was still appellant, the focus was on whether his failure to heed warning past accomplished the trial court’s right was itself an of waiver his indigent, [he] to counsel. “If [his] was not failure retain coun- supra State, sel v. constituted waiver.” Ward at 65. consequences totally unacceptable require- The would be if the supra, warning Zant, v. ment of Clarke was extended a and a in cases non-indi- pro required wherein se was danger of invokes representation appears for trial gent defendant warning the would crucial Assuming that his to counsel. right non-indigent defendant would therefore a the of waiver and that issue warning, he could receiving such a a choice after to make entitled by indefinitely. to retain counsel and By failing postpone his trial after his case had been called right to counsel invoking then the danger warning the requisite the had received manipulate the se, non-indigent defendant could pro the ceeding Assuming, his right. to waive by simply “refusing” will courts at hand, would be entitled to non-indigent defendant the other he could still be act such a that upon receive but not to upon diligence, se his lack of to stand trial based certainly He de- superfluous irrelevant. would warning would be dili- a his lack of no benefit from mere admonishment that rive position of admittedly dangerous gence placed now defending himself. is, however, authority assertion apparent
There circumstances, a under he was entitled receive State, Brown v. Ga. proceeding pro se. See However, any v. reliance Clarke State, supra, mis- supra, authority in Brown v. is holding as for the Zant, supra v. placed. is from in Clarke language clear applies only right the context of a waiver of the holding that its self-representation. countervailing right election State, (1984). v. More- See Cochran also over, above, why the ra- compelling there reasons discussed are Zant, supra, extended to those cases tionale of Clarke should be wherein the waiver of the to counsel arises other issue addition, self-representation. In than virtue of election of Supreme post- holding Brown is inconsistent with our Court’s own pronouncements Clarke v. Zant de- diligence retaining fendant’s own issue ultimately waiver of his counsel must be resolved. Ward supra; supra. Accordingly, Shaw v. Brown v. *4 supra, purports is overruled to the a re- extent establish quirement who has. invoked his defendant right by failing counsel but to exercise who otherwise waived that the requisite diligence dangers must be of self- given representation pro before he can to undertake a se de- fense. was, therefore, appellant’s not error in this case hold deny until been waived and to a continuance
counsel could be retained. Nor was it to fail to error represent appellant. Scott v. 151 Ga. See (262 198) (1979). SE2d record,
2. After a careful review of the entire
we find that a ra-
reasonably
the evidence ad-
tional trior of fact could
have found from
proof
charged
of the three crimes
guilt
duced at
of
(99
Virginia,
Jackson v.
P. concur. P. and Beas- JJ., ley, concur part part. in dissent in in Judge, concurring dissenting part.
Beasley, I judgment agree concur but cannot with all that is con- tained (289
I would not Brown overrule opinion Brown is in- distinguishable. nothing There was dicate that dangers defendant was warned at time of the ceeding without trial or there knew of them. Thus assurance qualify publicly-paid when he was told he did not his decision whether to hire counsel or himself should be guided by dangers
Here abundantly it is clear from the record that knew defendant the danger representing kept insisting himself and at the outset employed trial that the court still allow him seek counsel even though already given the court had him months and months for to do Any error, then, so. him advising at the time he was found not indigent, when his hiring choice became one of or himself, senting would be harmless. This is because he demonstrated himself, his knowledge of representing which role was affirmatively default, by chosen but was cast his own completely early occasioned when he ignored the court’s admonition question to settle representation promptly. course,
Of I agree majority with the that the need not be given already trial if it has given been or is understood. It would be merely perfunctory. (1981), I Clarke v.
As
read
low 172) (1984) regard. in this State, 172 Ga. Glaze v. Judge Presiding Judge Deen and to state that I am authorized Pope join in this Rehearing.
On for Motion hearing pre-trial transcript urges Appellant of the that the superior during court 1982 Term of October conducted appeal because of the record on as not be considered should reporter’s of the to correctness as certificate of the court the absence hearing. transcript of that preclude reporter’s does not certificate The absence appeal. transcript was amenda- “The defect on
consideration ble. transcript. in the Appellant incorrectness error or makes no assertion filing might objected party of the uncer- to the have Either hearing necessary, transcript for a and, have moved if could tified get peared. they ap- transcript if errors corrected filed or have a certified objec- by having so, he waived the But, to do [Cits.] failed 163) (2) (149 Harper 557, Green, tion.” (1966). rehearing denied. Motion for 18, 1987 Decided March April
Rehearing denied appellant. Jr., Jordan, Mathis, for A. D. James Charles Attorney, III, Wallace Sanders, Howard W. Dennis C. District appellee. Attorneys, Margaret McCann, E. Assistant District v. VURGESS. 73552. STATE OF GEORGIA (356 SE2d Judge. Beasley, pursuant January warrant, detective of to a search On apartment Department County searched an Police Chatham February drugs goods, 20, the $7,442 in cash. On seized stolen state 49. The money pursuant petitioned § OCGA 16-13- to condemn appellee Vurgess. money belong Af- Frank claimed July appellee judgment ter a bench the court entered petition. and dismissed money days appellee’s from the obtained Four later appeal on custodian, its notice of The state filed based on the order. appeal August Appellee dismiss the moved this court to