*1 Yes, sir. MR. NOBLES: go Are you
THE COURT: being here? those witnesses
trial without Yes, sir.
MR. NOBLES: Mr. say you, No- What
THE COURT:
bles? go sir. I’d like NOBLES: Have Mr. Nobles Okay. at 1:30 at Court down
dressed out back a jury. we’ll call there, up are His clothes
MR. HART: there. up them him dressed Bring
out at 1:30. Concluded). Proceedings
(WHEREUPON LINEBERRY, Appellant, Oklahoma, Appellee.
The STATE of
No. F-82-317.
Court of Criminal
Aug. 8, 1983. 16, 1983.
Rehearing Sept. Denied Howerton, Muskogee,
Michael C. pellant. Gen., Alan B. Turpén, Atty.
Michael C. Gen., City, for Foster, Atty. Oklahоma Asst. appellee.
H45 has Why you OPINION withdrawn. do not have an now? BRETT, Judge: MR. LINEBERRY: I can’t one get this charged Lineberry, quick. with, for, of the crime tried and convicted are you employed? Well O.S.1971, of Larceny Grand violation 21 MR. LINEBERRY: Well I don’t know 1704, 1701 and in Case No. CRF-79-74 §§ after today. County, of Haskell District Court THE you COURT: Whо do work for? Upon recommendation State of Oklahoma. of to a jury, appellant sentenced MR. LINEBERRY: work for Good imprisonment. tеrm of From years’ three Year. sentence, this has judgment THE COURT: How much do you make? perfected an appeal to Court. MR. LINEBERRY: $5.00 hour. court im- Appellant asserts that trial THE you COURT: Mr. Lineberry, do un- properly forced him to derstand that we are not contin- going to a by refusing to continuanсe to en- grant again ue you because don’t have an able him to obtain counsel. Because we with you. you Do understand ocсurred, find this is that reversible error that? of only assignment error we address. MR. LINEBERRY: You’re going felony in a it? person charged a continue A state court has an and abso unconditional THE Do you COURT: No. understand See, lute Gideon v. lawyer. also there are certain rules of evi- 335, 792, 372 Wainwright, 83 S.Ct. 9 U.S. proсedure dence and that we will follow (1963), L.Ed.2d 799 and Rankin v. 83 you going do understand we’re (Okl.Cr.1966). N.M. How follow regardless you those whether ever, if may be done wаived you or not and will be voluntarily. See, Johnson v. those by bound rules? Zerbst, U.S. S.Ct. MR. LINEBERRY: Yes. (1938). L.Ed.2d 1461 Yet waiver will not be you anything THE COURT: Do have “lightly presumed,” and the trial further want tо tell us before we you “indulge must every presump reasonable proceed? tion against Johnson, waiver.” 304 U.S. at anything MR. LINEBERRY: Not other S.Ct. L.Ed. you than I tоld before. The controlling issue in the case is instant right. THE Just have a COURT: All whether appellant volun- intelligently and jurors call the going seat. We’re tarily waived his in. counsel before representing himself in the has previously While this Court held District Court of wherein County Haskell waived, to counsel Larсeny. was convicted of Grand show, must or there be an the record colloquy occurred between show, allegation evidence which that an Court and appellant to commence- intelligent offered but accused was ment of the trial: rejected offer. ly аnd understandingly THE COURT: We have set for mandatory This is less anything CRF-79-74, Case No. State v. Jed S. Li- 83 N.M. is not waiver. Rankin neberry says .... What the defendant? See, Carne LINEBERRY: don’t an аt- Cochran, ly v. guess torney ready. I’m L.Ed. 70 Okay, you have indicated allegation represent The Court’s you wanted to unsupported is yourself at оne time or another and wanted to himself twice, you’ve attorneys rep- here At four had an and he record. least another, cоmmence obviously planning at one time or resented regardless reflects the withdrawal whether yet the record the first Apparently оne. Un- third counsel. represented were court appointed, of this the facts and circumstances der fourth retained. find good this Court сannot conscience *3 and knowingly, intelligently the respecting completely The record is silent right his voluntarily waived sub- occurring betweеn the time the events we must reverse to counsel. Therefore were issued for the October poenaes a new remand this case for trial. 1980 scheduled trial date and October re- Nothing trial date. the actual at observe that passing, In we when, retained flects or whether the why thus, counsel, and private one time retained case, why the attorney from withdrew evi- present on remand he must sufficient year, for a full delayed the trial was he once showing to the trial court dence years two causing the trial to be conducted guidelines necessary the again falls within the crime the commission of alleged after de- court-appointed for entitlement to charged. fender. to written The file a need for reasons, cause is foregoing For the with an motion to withdraw and order a new and REMANDED for REVERSED is clear. drawal аs the judge. trial before a different State, (Okl.Cr. In Louder v. the trial 1977), approved Court CORNISH, J., concurs. specially motion for overruling court’s of dеfendant’s attor court-appointed P.J., continuance and the dissents. motion the court- ney’s to withdraw. Both CORNISH, concurring: Judge, specially rе appointed attorney not reflect agree that the record does represent the trial days
tained to se. To proсeed pro that elected trial. ed choice, “the trial court should establish such attorney, The in Johnson court-appointed knowing- that a defendant clearly ascertain State, (Okl.Cr.1976) ap v. P.2d to elects voluntarily intelligently ly, the when two clients proached court his v. pro proceed se.” Stiner letter attor dismissing wrote a him as their addition, “[t]his In a the ney. hearing with defendants encourages trial courts strongly аl attorney, explained the appoint standby counsel jurisdiction to had a coun though defendants to rep- to elects in casеs where the defendant sel, to court- they no select their v. himself.” Johnson resent appointed attorney. great (Okl.Cr.1976) (emphasis pains to make sure that the defendants coun- Accordingly, trial without original.) than choosing proceed pro were to se rather justified pro- to was not election sel represented by to continue to be the attor pro se. ceed court. ney appointed by Only after intelligently defendants point important makes the The dissent waived their to and denied permitted should not that the defendant offer to judiсial process to frustrate questions might to them on advise he is not on the of trial that permission for the judge grant arise did to re- time and neеds additional to attorney withdraw. Be- subpoena witnesses. tain question, yond In the there is no record case at bar coun- [wjhere a аble to retain chose to showing by the court that sel has been advised himself. stated that he did Appellant by a reasona- must retain cоunsel certain “guessed” time, showing and where there is no the trial. The ble proceed to has not why subpoena .he retained counsеl within defense witnesses time, treat his failure date of trial. provide his own defense waiv- as a er of his such require counsel and procеed trial without an
attorney. Gates,
United v. States 557 F.2d
(5th Cir.1977), den., cert. L.Ed.2d 763. See also United Fowler,
States v.
(5th
1979); and United v. Terry, States F.2d GUTHRIE, C.O. 727 (5th Cir.1971). However, I find *4 to be persuasive regard: in this Oklahoma, The STATE Appеllee. While this Court will never counte- No. strategy
nance the of a clever F-82-525. to force a trial to require him to Criminal proceеd pro se furnishing as a means of on appeal, him error if that case be the Aug.
the burden is on state adequate to establish it. Lande,
State 180 Mont. evidence
bearing appellant’s on issue is state-
ment employed at $5.00
hour; to get unable an attor-
ney quick”; “this judge’s
pellant’s reference to conversations not of appeal.
record on appel- cannot find that conduct, record,
lant’s reflected con-
stitutes a waiver of his to counsel.
Therefore, I specially concur. Presiding dissents: resрectfully dissent. af- would
firm the conviction. The counsel,
employed, been represented by counsel, not entitled to appointed
nor to additional postponement for his fail-
ure to timely secure counsel of his choice.
As was cited in Lamascus v. (Okl.Cr.1978):
If defendant’s contentions should Court,
adopted it would be a
simple matter for any any
case judicial frustrate the
process by on of the trial
that he is not for trial and needs
additional time to prep- retain counsel for defense,
aration of his having
presented a valid to the reason trial court legal his failure to retain