State v. DicksonState v. Dickson
Dickson, Hamm and Miller were jointly charged with hunting deer at night (
Upon the granting of an out-of-time appeal the defendants reserved five assignments of error, one of which was abandoned.
The scope of appellate review extends to “an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”
First, the court minutes do not show that either of the defendants was represented by legal counsel or was informed of his right to counsel.
In the case of an offense punishable by imprisonment, when the defendant appears for arraignment without counsel, the court shall inform him before he pleads to the indictment of his right to have counsel appointed to defend him if he is indigent. When a defendant states under oath that he desires counsel but is indigent, and the court finds the statement of indigency to be true, the court shall provide for counsel in accordance with the provisions of R.S. 15:145 to the defendant before he pleads to the indictment.
The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant‘s right to counsel including the right to court-appointed counsel and that he waived such right.
The right of assistance of counsel is fundamental in our legal system and essential to assure a fair trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972); State v. LaFleur, 391 So.2d 445 (La.1980). At each stage of the proceedings, every person is entitled to
Before the trial court can accept the defendants’ waiver of counsel, the record must indicate that the court attempted to determine defendants’ literacy, competency, understanding and volition. State v. LaFleur, supra. Further, each defendant should be made aware of the dangers and disadvantages of self-representation, so the record will establish that “he knows what he is doing and his choice is made with eyes open.” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Washington, 421 So.2d 887 (La.1982); State v. Bell, 381 So.2d 393 (La.1980). The determination of whether a defendant knowingly and voluntarily waived his right to counsel is dependent upon the facts and circumstances surrounding the case, including the accused‘s background, experience and conduct. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
At arraignment, defendant Hamm made an equivocal inquiry about his need for an appointed lawyer. The trial court stated that since the offense did not carry a mandatory jail sentence it was “... not inclined to appoint you an attorney on that. If you want one, you can employ one.” Furthermore, when the defendants proceeded to trial, no inquiry was made as to whether defendants needed counsel or waived their rights with respect to same. The trial court erred in this regard. The right to counsel on a misdemeanor charge is not conditioned upon the existence of a mandatory jail term. Rather, “[i]f the offense charged is punishable by imprisonment, an indigent accused has a right to court appointed counsel.” Argersinger v. Hamlin, supra;
Error patent exists because the aforementioned colloquy does not establish that defendants were made aware of the consequences of self-representation. The absence of an inquiry assessing defendants’ literacy, competency, understanding and volition precludes a finding of a proper waiver of the right to counsel.
The second error patent results from the failure of the court record to show the defendants were advised of their right to a jury trial.
These defendants were entitled to a jury trial since the possible fine for each exceeded the $500 limitation contained in Article 779(A).
This case differs from those where the right to a jury trial is triggered by consolidation of misdemeanor offenses which expose the defendant to potential punishment (incarceration) in excess of six months, e.g., State v. Williams, 404 So.2d 954 (La.1981); State v. McCarroll, 337 So.2d 475 (La. 1976); c.f. State v. Gillespie, 486 So.2d 984 (La.App. 2d Cir.1986). In the instant case, these defendants were exposed to fines in excess of $500 under either
There is nothing in this record to indicate that the defendants waived their right to a jury trial or that they were ever advised of same. The failure of the record to affirmatively show that the defendants knowingly and intelligently waived their constitutional right to a jury trial is error patent on its face.
DECREE
For the reasons explained, we set aside defendants’ convictions and sentences and remand the case to the district court for further proceedings consistent with this opinion.