Bradley v. State, 50769

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtLewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye; MARSHALL; BELL, C.J., and WEBB
Citation219 S.E.2d 451,135 Ga.App. 865
PartiesSimpson BRADLEY, III v. The STATE
Docket NumberNo. 50769,No. 1,50769,1
Decision Date02 September 1975

Page 451

219 S.E.2d 451
135 Ga.App. 865
Simpson BRADLEY, III
v.
The STATE.
No. 50769.
Court of Appeals of Georgia, Division No. 1.
Sept. 2, 1975.
Rehearing Denied Sept. 29, 1975.

Page 453

[135 Ga.App. 870] Stanley H. Nylen, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, J. Melvin England, Asst. Dist. Attys., Atlanta, for appellee.

[135 Ga.App. 865] MARSHALL, Judge.

Appellant Bradley was indicted and tried for an offense of robbery by intimidation but found guilty by a jury of the lesser offense of theft by taking. He was sentenced to seven years imprisonment. He appeals from this judgment and sentence. Appellant enumerates six errors. Held:

1. In the first enumeration appellant alleges the trial court erred in refusing to permit him to obtain counsel of his own choosing. The transcript reflects that prior to the calling of a jury, appellant entered a plea of guilty to the offense for which he had been indicted. Appellant answered the calling of his case without objection or motion and was represented by a public defender who had been appointed to represent Bradley about eight weeks before trial. That counsel's familiarity with the facts and law of the case and his professional competense were manifested during the subsequent trial [135 Ga.App. 866] before the jury. After the plea of guilty had been entered, the trial judge correctly and adequately determined the plea was voluntarily and freely entered with full understanding of its effect. The trial court accepted the plea of guilty and after some inquiry as to the appellant's background, imposed a sentence of seven (7) years.

Only at this point did appellant indicate some dissatisfaction with the proceedings and his appointed counsel. As soon as the sentence of seven years was announced, the appointed counsel indicated that appellant wanted to withdraw his guilty plea. The trial court immediately granted that request and proceeded to call for a jury. The appellant them stated: 'Your honor, when he first came-I'm not saying Mr. Calloway not substantial lawyer but believe he's a good lawyer, but I just don't feel he could handle my case the best that he can, because he don't suit me, because this weekend my family sent me some money to acquire me a lawyer. It happen I can financially get one.' Further inquiry disclosed that appellant had received $300.00 over the weekend prior to the Monday trial and if necessary the appellant believed he could obtain additional funds. There was no indication in the transcript that the appellant made any effort to obtain the services of a counsel of his own choosing or requested his appointed attorney to assist him in such an endeavor. In fact, the transcript, reflects appellant willingly proceeded with his appointed counsel through the guilty plea and sentence.

As was made clear in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 and cases subsequent thereto, at the very least, every person charged with a felony has an unconditional and absolute constitutional right to have available the services of an attorney at every stage of the trial. Geiger v. State, 129 Ga.App. 488, 500-501, 199 S.E.2d 861. See also Roberson v. State, 135 Ga. 654, 70 S.E. 175; Smith v. State, 60 Ga. 430; Martin v. State, 51 Ga. 567; Duke v. State, 104 Ga.App. 494, 122 S.E.2d 127.

But just as other constitutional and statutory rights may be waived intelligently by an accused (Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484), so too, we believe the constitutional guarantees of the benefit of counsel of choice may be waived by action or declaration. See [135 Ga.App. 867] Williams v. Gooding, 226 Ga. 549, 179 S.E.2d 64. See also Ford v. State, 227 Ga. 279, 180 S.E.2d 545 and Simmons v. State, 126 Ga.App. 401, 190 S.E.2d 835. 'The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.

In this case, appellant had ample opportunity to communicate directly to the

Page 454

trial court or to his appointed attorney that he wanted counsel of his own choosing prior to the commencement of the proceedings on the guilty plea. However, such was not done, apparently until appellant had received the unpleasant tidings of seven years imprisonment. Though appellant expressed the feeling that his appointed counsel did not suit him and he could hire another, there was no indication who or where new counsel would be obtained.

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15 cases
  • Easley v. State, No. A03A0674.
    • United States
    • United States Court of Appeals (Georgia)
    • June 24, 2003
    ...assault and involuntary manslaughter findings. "Since `[v]erdicts acquire their legality from return and publication' (Bradley v. State, 135 Ga.App. 865, 870, 219 S.E.2d 451 [(1975)]), there was no verdict in this case until it was received and published in open court. Bell v. State, 163 Ga......
  • Johnson v. State, No. 52647
    • United States
    • Georgia Court of Appeals
    • September 28, 1976
    ...of counsel of choice may be waived by action or declaration. See Williams v. Gooding, 226 Ga. 549, 176 S.E.2d 64; Bradley v. State, 135 Ga.App. 865, 866, 219 S.E.2d 451. The determination as to an intelligent waiver of the right to counsel must depend, in each case, upon the particular fact......
  • Cornelius v. State, No. A94A0376
    • United States
    • United States Court of Appeals (Georgia)
    • June 24, 1994
    ..." '(T)he constitutional guarantees of the benefit of counsel ... may be waived by action or declaration. (Cits.)' Bradley v. State, 135 Ga.App. 865, 866(1) (219 SE2d 451)." Phipps v. State, 200 Ga.App. 18, 19, 406 S.E.2d 493. "[A] layperson does not have the right to represent himself and a......
  • Green v. State, No. A92A1746
    • United States
    • United States Court of Appeals (Georgia)
    • March 18, 1993
    ...reached and was ready to announce its verdict. Since "[v]erdicts acquire their legality from return and publication" (Bradley v. State, 135 Ga.App. 865, 870, 219 S.E.2d 451), there was no verdict in this case until it was received and published in open court. Bell v. State, 163 Ga.App. 672,......
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