Lead Opinion
Appellant was charged with 22 counts of theft of property and 22 counts of first degree forgery by information filed on October 3, 1980. She was convicted in a jury trial on September 28, 1981, and sentenced to 26 years in the Department of Correction.
Appellant argues two points for reversal, neither of which has merit and, therefore, we affirm the judgment. Appellant first contends that the trial court erred in permitting her to represent herself at trial. The only support for her argument is a notation dictated by the trial judge several days after the trial, stating appellant had appeared without counsel on the morning of trial and asked to proceed pro se. But the record itself demonstrates the appellant did not represent herself and was not without the benefit of counsel. The proceedings with respect to appointment of defense counsel were erratic from the outset. Initially, Mr. Robert Lamb was appointed and he secured appellant’s immediate release from custody on her own recognizance, conditioned on weekly deposits by the appellant
On September 28, 1981, the case was called for a jury trial and appellant appeared without having retained counsel. At that point the trial judge appointed Messrs. Steven G. Howard and Stanley Montgomery to assist appellant. While they were ostensibly appointed merely to assist in trial, it is clear that Mr. Howard, who seems to have been appellant’s lawyer in a similar case, immediately assumed a fully active role as trial attorney, conducting the entire interrogation, cross-examination, making objections to evidence and exhibits, presenting a defense with numerous exhibits and four defense witnesses, including lengthy testimony from the defendant and making a forceful closing argument, all of which was done with evident familiarity.
Appellant’s defense was that she was an employee of the City of Diaz paid with CETA funds; that at times her CETA checks would not arrive and with the approval of the city clerk, Mrs. Jean Sullins, appellant would sign Mrs. Sullins’ name to checks from the city for the amount of her salary, refunding the amount to the city when her CETA checks arrived; that she was at times instructed to sign Jean Sullins’ name to checks, cash them and give the money to Mrs. Sullins, which she did. This explanation was directly disputed by Mrs. Sullins and our concern here is not with credibility but with the adequacy of appellant’s defense. The record satisfies us that she had sufficient opportunity to present her case, and we note an absence of any argument that she was deprived of an adequate defense. In sum, she argues that though she asked to be allowed to represent herself, the court erred in permitting her to do so, as the record fails to reflect a voluntary and intelligent waiver. It is true there is nothing in the record showing the trial court made any inquiry into appellant’s attempted waiver of counsel, and if she had been permitted to act as her own counsel we would be hard-pressed to deny the argument, as the State has the burden of showing a voluntary and intelligent waiver of counsel. Jackson v. State,
The jury found appellant guilty on all three verdict forms submitted to it and fixed her punishment at two years on felony theft, three years on first degree forgery, and one year on misdemeanor theft, a total of six years. Thus, on the stipulation she was sentenced to one year on each of the remaining 21 forgery counts, for a total of 26 years, leaving one forgery charge unaccounted for.
We find no merit to appellant’s argument that she was prejudiced by this stipulation, to which she and counsel agreed. The obvious fact is she benefited by it. By the stipulation the State agreed to a sentence of only one year on each remaining 21 forgery charges, which carried a minimum sentence of three years on each charge, thus benefiting appellant from that standpoint. Too, the stipulation must have included a dismissal of the 20 remaining charges of theft of property, giving her an additional advantage. Furthermore, if the jury convicted her only on misdemeanor theft it appears that under the stipulation she would have been sentenced only on the four misdemeanor charges, with all remaining forgery and felony theft charges dismissed. Clearly, the stipulation offered a more attractive option to appellant than that of submitting all 44 counts to the jury with instructions as to the minimum sentences of two and three years each and, hence, we find no prejudice in the stipulation.
Affirmed.
Dissenting Opinion
dissenting. On the first point argued I dissent because the record does not reflect that appellant knowingly waived her right to counsel as is required to be shown by the State. See Carnley v. Cochran,
On the second point argued I dissent because the record does not reflect that appellant knowingly and intelligently entered a plea of guilty to 21 forgery counts for which she was sentenced to one year each to be served consecutively. See Boykin v. Alabama,