*1 immunity only to the extent it is provides sovereign it waives its (b). Georgia. in OCGA 50-21-23 Be- sued the courts of the State identical, conceptually application provisions cause the two are and, public policy Georgia’s Tort Claims Act would not violate Iowa’s such, legislatively effect to the de- recognize give we should and policy comity. Accordingly, as a matter of because ex- clared of Iowa public policy of tending immunity will not offend the state, recogniz- we find the trial court abused its discretion not comity. ing appellant’s sovereign immunity as a matter of We there- appellant’s motion to dismiss. fore reverse the trial court’s denial In holding 3. view of our Division we need not address pellant’s remaining argument concerning the full faith and credit clause. J., Smith, J.,
Judgment reversed. P. and concur. Decided December Reconsideration dismissed December
Harman, Owen, Sweeney, Saunders & Timothy Sweeney, J. for appellant. Gaslowitz,
Adam Port, R. Robert C. appellees. for
A93A1589. SMITH v. THE STATE.
Andrews, Judge. simple battery, misdemeanor, convicted of questions a whether the trial in failing court erred counsel to him, inquire indigency, as to his adequately advise him of the perils se, of proceeding and to make a determination as to his competency to stand trial. charged by
Smith was accusation with one count of criminal tres- pass and one simple battery pled count of not guilty. The court subsequently noting entered an order that Smith had indicated at ar- raignment private that he would hire counsel. The accusation was by adding trial, later amended one trespass. count of criminal Prior to Smith stating wrote a letter to the court that this incident had caused him physical impairment partly and mental cause of his becoming unemployed; although this had resulted his indi- gence, request representation by for public defender had been grounds denied on qualify monetarily; that he did not but that he had been employ unable to counsel. He attached in sup- documentation port of his argument indigent, that he was and he asked the court for
advice. times, being rescheduled several the case came on for trial
After him jury. jury guilty Smith defended himself. The found before trespass guilty simple battery. imposed The court of criminal probated upon, fine of and a 12-month sentence conditioned $360 among things, payment performance other of the fine and of commu- *2 nity service. failing
1. Smith contends that
the court erred in
to make a deter
upon the
of
indigent
mination
record
whether
was
and therefore
him,
appointment
entitled to the
of counsel
in the ab
knowing
intelligent
right;
sence of
waiver of that
he states that he
counsel,
right
complains
did not waive his
and he
of the court’s
him
dangers
proceeding
failure to advise
of the
without counsel.
State,
Fernandez v.
(319
503) (1984).
App.
See
171 Ga.
290
SE2d
A
prosecution
in a misdemeanor
criminal
is entitled to
where the defendant
is sentenced to actual
State,
imprisonment. Brawner v.
(296
551)
Georgia’s provides right Constitution both the to defend one’s person cause by attorney” “either or person and that a charged with an against offense the state “shall have the privilege and benefit 1983, I, I, XII, of counsel.” Ga. Const. Art. Sec. Pars. XIV. that, The dissent hinges premise its contention on the since prison Smith was not sentenced to on his conviction simple battery, he was not court-appointed entitled counsel. Capelli, supra. This emphasis payment on the source of however, point overlooks the fact that Smith at no in the record ex- have counsel. Smith origi- pressed anything other than his desire to nally intended to certainly retain which was his constitu- tional privilege whatever the nature of charge, the as is reflected in 30, setting the court’s December 1992 order the case for trial on the 22, “A January 1993 calendar. criminal defendant does have a consti to be tutional defended counsel of his own selection when State, Delk v. willing employ ever he is and able to such counsel. (1896); Long State, (27 (166 Ga. 61 SE 119 Ga. 365) (1969).” Burney 244 Ga. any point There can be no opted, contention Smith at full knowledge rights, self-repre
with of all his to exercise his sentation. Clarke v. 49) (1981); 247 Ga. Burnett v. 231) (1987). Apparently having been unable to retain counsel due to the loss job, of his Smith January 4, wrote to the court a letter dated stamped received January provided the court on court with concerning Therefore, financial evidence indigency. point, inquiry by some required court was to determine (a). Lawal, whether or not Smith indigent under OCGA 17-12-4 Lowrance, Butler v. supra; supra; (lb) 43) (1990) (whole case, court judges with three concurring, See Houston v. physical precedent).
There is dilatory no indication of such tactics Smith which *3 would have amounted to a waiver of proceed his to with re State, if he was not indigent. Staples v. tained counsel App. (434 757) (1993); Houston, Fernandez v. supra; 503) Ga. This case is on all Kirkland v. fours with and controlled 502) (1991) Ga. and must be reversed. 2. We need not consider remaining the enumerations.
Judgment J., Pope, J., reversed. C. McMurray, Birdsong, P. J., Johnson, P. Cooper, Smith, JJ., Blackburn and concur. Beasley, J., P. dissents. Presiding Judge, dissenting.
The record this case transcript does not include a of the trial (the trial one; court advises that there was not we if do not know the recorded) trial was or narrative of the proceedings pursuant to OCGA (d). Nevertheless, 5-6-41 it shows that sought defendant but was public defender, refused a qualify because he indigent. did as It also shows that the attorney court did not or order the public defender, services of the either because the court considered qualified defendant not as indigent or because the court had decided to limit itself to punishment non-incarceration if defendant was
convicted.1 to not want that defendant did unequivocally shows
The record
trial
months before the
almost two
arraignment
himself. At
represent
of the trial
he was advised
arraignment
place, at which
actually took
private
he would hire
later,
indicated that
date a month
appoint-
the
appellant sought
arraignment,
after
Two weeks
counsel.
having
court,
office
public defender’s
the
from the
ment of counsel
that he wanted
He maintained
for assistance.
request
his
rejected
re-
financially unable to
remain
indigent and would
was
counsel but
was
and the trial
reset three times
The trial date was
counsel.
tain
Appellant ap-
trial date.
original
from the
ultimately held a month
he
occasion,
changed
position
he never
each
peared pro se on
himself.
to
he never elected
could not afford
contend,
he was entitled to
appeal,
on
to
He continues
circum-
of financial
not have counsel because
that he did
proceed pro-se
control,
he “was forced to
and that
beyond his
stances
the trial.”
his Sixth Amendment
solely on the basis of
Appellant proceeds
state constitutional or
independent
no
and raises
to counsel
Camp,
State v.
statutory
See
ground.
896) (1985);
Daniel
rely,
J.,
The cases he cites
concurring specially).
(Beasley,
Amendments
Sixth and Fourteenth
question, on the
regard
to this
thereon.
rulings
bottomed
to
was not entitled
majority, appellant
recognized
As
he
imprisonment;
not sentenced
because
was
pointed counsel
period
over a
fine and certain costs
required
pay
a $300
community
service.
perform
25 hours
probation,
months’
trial,
may affect the outcome of
representation
though
Even
lack
Amendments
and Fourteenth
under
the Sixth
“[a]
[provided
is entitled
prosecution
criminal
imprison-
is sentenced
actual
the defendant
State]
Illinois,
However, case, in this there was no reason to advise Smith that right right he had a to hire counsel and assure that he waived that proceeding, before ror. such that failure to do so constituted reversible er- along right First, Smith all wanted invoke that but showed that he could not do so because of his limited means. He inwas reasonably practical counsel, class of citizens which cannot hire as a legal matter, is not entitled to as a matter. concept Second, the of waiver means that there is a choice. Here circumstances, there was no choice. Defendant was forced his in judgment, represent himself; his the trial court was forced de- non-representation, repeated appearance fendant’s without coun- self-representation sel, and his ultimate to limit the sentence to non- imprisonment terms. The court did not sentence defendant to incar- option self-representa- ceration, which is an if defendant chosen has voluntarily understanding consequences tion and with an of the or relinquished through diligence obtaining has counsel. Burnett v. the choice lack of in pro warning danger
But as noted Burnett at
of the
ceeding
required only
voluntary
se is
is a
there
invocation
self-representation, citing
of the
Clarke v.
The of an as to a intelligent supra case, Faretta, waiver in this which waiver of voluntary well, course would have to be means that where retained by defendant, counsel is not waived but cannot be afforded there can imprisonment be no trial even if will not result from a conviction. The every alternative is to case where defendant qualify public defender, does not for the is unable to retain *5 represent himself, if does not even not want and does actually imprisonment. face 502) (1991), Ga. v. Kirkland not choose defendant did control, it is clear that for here should compelled he was unable do so after but was himself to to hire counsel. just basis, as the this reversed on should not be The conviction (1) (416 Capelli State, 203 Ga. v. convictions imprison- 136) (1992), appellants not sentenced were ment, not reversed. were respect point to Jones that, to the reference with out I also must 749) (1984), it is not when Wharton, 253 Ga. imprisonment possibility legal in misdemeanor case there is that a Sixth a loss It is when to counsel arises. Amendment actually liberty Johnston results. of SE2d sentenced supra, Jones, in Clarke v. like Clarke opinions single-judge regard, In this to incarceration. Lawal v. the misdemeanor cases Lowrance v. 196) (1987), authority. Appellant in case did not suffer a are not liberty. loss of December
Decided denied December
Reconsideration appellant. Williams, Associates, T. for & Rita Williams se. Winston J. Jacqueline
Ralph Seabolt, Solicitor, Bowden, Jr., R. Assistant T. appellee. Solicitor, for ATLANTA, INC. v. WINN-DIXIE
A93A1670.STEVENSON Presiding Judge. violently Alleging ill minor children became that she and her four eating Winn-Dixie, sold Ste- unwholesome ice cream as a result of complaint alleging a violation of the both a tort and filed this venson seq. discovery, Act, et After OCGA 10-1-390 Fair Business Practices summary judgment. parties Stevenson for filed cross-motions grant peals of Winn-Dixie’s motion and the from the denial of her motion. light Stevenson, the evidence in the most favorable
Viewed following four chil- and her as facts: Stevenson would authorize the visiting ages relatives dren, thirteen, fifteen, two had been nine and