Echols v. StateEchols v. State
- Reporters:
- , ,
- Before:
- Pope
Franklin D. Echols brings this appeal from his convictions of aggravated assault and recidivism. Held:
1. Defendant was indicted on three counts: (1) aggravated assault, (2) simple battery, and (3) recidivism. Counts 1 and 2 were in fact the same transaction yet fictitiously set forth as two separate crimes. See generally in this regard Mobley v. State, 101 Ga. App. 317, 326 (113 SE2d 654) (1960); Tooke v. State, 4 Ga. App. 495 (3) (61 SE 917) (1908). Defendant attempted to plead guilty to Counts 2 and 3 at his arraignment hearing held April 30,1982. The trial court deferred a decision until a later hearing on May 12, 1982, at which time he *308 refused to accept the plea. Defendant renewed his guilty plea immediately before trial and was again denied. As his first enumeration of error on appeal, defendant challenges the trial court’s refusal to accept his guilty plea.
Defendant recognizes the general rule that a trial court is not required to accept a criminal defendant’s plea of guilty. Accord,
Strickland v. State,
199 Ga. 792, 800 (35 SE2d 463) (1945);
Shearer v. State,
128 Ga. App. 809 (2) (198 SE2d 369) (1973);
Griffin v. State,
12 Ga. App. 615 (6) (77 SE 1080) (1913); North Carolina v. Alford, 400 U. S. 25, 38 n. 11 (91 SC 160, 27 LE2d 162) (1970); United States v. Jackson, 390 U. S. 570, 584 (88 SC 1209, 20 LE2d 138) (1968); Lynch v. Overholser, 369 U. S. 705, 719 (82 SC 1063, 8 LE2d 211) (1962); 21 AmJur2d, Criminal Law, § 486. He argues, however, that
The acceptance of a guilty plea must be accompanied by an affirmative showing that it is being made intelligently and voluntarily, because “[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U. S. 238, 242 (89 SC 1709, 23 LE2d 274) (1969); see also State v. Germany, 246 Ga. 455 (1) (271 SE2d 851) (1980). The rejection of a guilty plea entails no such showing. “The law favors a trial on the merits. Gauldin v. Crawford, 30 Ga. 674 (5) [(1860)]. It does not encourage confessions of guilt, either in or out of court. Affirmative action on the part of the prisoner is required before he will be held to have waived the right of trial, created for his benefit. If he refuses to plead, the court pleads not guilty for him, and he is put upon his trial.” Griffin v. State, supra at 622. He enters upon his trial cloaked in the presumption of his innocence, the burden being upon the state to prove guilt beyond a reasonable doubt.
It is obvious that defendant’s strategy in this case was to avoid prosecution and likely conviction under Count 1 of the indictment, a felony, by pleading guilty to Count 2, a misdemeanor, thus obtaining a lesser punishment for his misdeed. However, this strategy is of no avail, for “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted
*309
for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other----”
2. Defendant’s remaining enumeration asserts as error the trial court’s overruling his motion for mistrial based upon testimony of the victim purportedly placing defendant’s character in issue. However, our review of the transcript in this regard discloses that the objectionable testimony was in fact part of the res gestae of the crime and, as such, was properly admitted by the trial court. Thus, this enumeration of error is without merit. Mosley v. State, 150 Ga. App. 802 (2) (258 SE2d 608) (1979); Guthrie v. State, 147 Ga. App. 351 (6) (248 SE2d 714) (1978).
Judgment affirmed.
Quillian, P. J., and Sognier, J., concur.