Barnes v. State, A01A0624.
Decision Date | 05 May 2003 |
Docket Number | No. A01A0624.,A01A0624. |
Citation | 581 S.E.2d 727,261 Ga. App. 112 |
Parties | BARNES v. The STATE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Samia P. Randall, Terry Grandison, College Park, Claudette V. Bazile, Riverdale, for appellant.
Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Asst. Solicitor-General, for appellee.
Id. at 276-277, 549 S.E.2d 495. On certiorari, the Supreme Court of Georgia reversed and remanded the case, holding that in light of the U.S. Supreme Court case, Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), Barnes was entitled to appointed counsel because she was given a probated sentence. Barnes v. State, 275 Ga. 499, 502(2), 570 S.E.2d 277 (2002). The Supreme Court also found that this Court failed to apply the rule in Deren v. State, 237 Ga.App. 387, 515 S.E.2d 191 (1999), which mandates that "even if a criminal defendant is not entitled to court-appointed counsel, the record must show a knowing and intelligent waiver of the right to private counsel." Barnes v. State, supra, 275 Ga. at 499, 515 S.E.2d 191. Accordingly, our judgment in this case must be vacated, and the judgment of the Supreme Court is made the judgment of this Court on this issue. Further, in accordance with our Supreme Court's instructions, we now determine whether Barnes knowingly and intelligently waived her right to private and appointed counsel. We find that she did not do so.
Following her conviction for driving with a revoked license, Barnes was sentenced to serve 365 days, but the trial court ordered that the sentence could be served on probation on the condition that Barnes paid a $743 fine. Barnes appeared before the trial court without counsel and indicated that she planned to plead not guilty. The record contains a signed affidavit containing boilerplate language reflecting Barnes' intention to plead not guilty and her initialed written waivers of her rights to a jury trial and to be represented by counsel.
On appeal Barnes asserts that the trial court erred in failing to determine if she had knowingly and intelligently waived her right to counsel. Barnes also argues that the signed written waiver was insufficient to apprise her of the dangers of proceeding without counsel.
(Citations and punctuation omitted.) Deren v. State, supra, 237 Ga.App. at 388, 515 S.E.2d 191. "Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment of this right." (Citations, punctuation, and emphasis omitted.) Hamilton v. State, 233 Ga.App. 463, 466(1)(b), 504 S.E.2d 236 (1998).
Although no particular questions are required as evidence of this waiver, the record must reflect that the defendant was made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver. The State may carry this burden by showing a valid waiver through either a trial transcript or other extrinsic evidence.
(Citations and punctuation omitted.) Godlewski v. State, 256 Ga.App. 35, 36, 567 S.E.2d 704 (2002).
Here, the only evidence of Barnes' waiver of either appointed or retained counsel is the document in the record entitled "Affidavit of Defendant Prior to Entering Plea." Under the heading "If You Are Pleading Not Guilty Please Read and Initial and Sign if Applicable," Barnes placed her initials beside the statements indicating that she waived her right to a jury trial and to be represented by counsel.
Although the evidence reflects that Barnes waived her right to counsel, there is no evidence that she was warned of the dangers of proceeding without representation.
In order for the State to use a pretrial waiver form to show that a defendant has intelligently elected to represent [herself] at trial after being advised of [her] right to counsel and the "dangers" of waiver, the form should outline those pertinent dangers: such as (1) the possibility of a jail sentence; (2) the rules of evidence will be enforced; (3) strategic decisions with regard to voir dire and the striking of jurors must be made by defendant; (4) strategic decisions as to the calling of witnesses and/or the right to testify must be made by defendant; and (5) issues must be properly preserved and transcribed in order to raise them on appeal.
(Footnote omitted.) Tucci v. State, 255 Ga. App. 474, 476-477(1), 565 S.E.2d 831 (2002).
The State has produced no evidence to show that...
To continue reading
Request your trial-
Alford v. The State
...It is the State which must show the defendant made a knowing and intelligent waiver of his right to counsel. Barnes v. State, 261 Ga.App. 112, 113, 581 S.E.2d 727 (2003). Review of the record shows no voluntary or intelligent waiver of Alford's right to counsel, nor that he was apprised of ......
-
Banks v. State
...297 Ga.App. 701, 678 S.E.2d 160 (2009) (citing Jones v. Wharton, 253 Ga. 82, 83, 316 S.E.2d 749 (1984) ). See also Barnes v. State, 261 Ga.App. 112, 113, 581 S.E.2d 727 (2003). Such a waiver of counselis valid only if it is made with an understanding of (1) the nature of the charges, (2) an......
-
Cook v. State
...herself—after being made aware of the dangers of proceeding without counsel." (Citation and punctuation omitted.) Barnes v. State, 261 Ga.App. 112, 115, 581 S.E.2d 727 (2003). We note also that the bench and bar have been cautioned repeatedly that a record is often the only way for the deta......
-
Simmons v. State
...a fine or serve thirty days in jail in all three misdemeanor cases. Thus, the right to counsel was triggered. See Barnes v. State, 261 Ga.App. 112, 113, 581 S.E.2d 727 (2003). Since the State failed to meet its burden of proving that Simmons was represented by counsel in those cases, the tr......