Clark v. City of Mobile

• Decision Date: 07 February 1978
• Docket Number: 1 Div. 843
• Citation: 357 So.2d 675
• Parties: George T. CLARK v. CITY OF MOBILE.
• Court: Alabama Court of Criminal Appeals

Page 675

357 So.2d 675

George T. CLARK v. CITY OF MOBILE.

1 Div. 843.

Court of Criminal Appeals of Alabama.

Feb. 7, 1978.

Rehearing Denied March 7, 1978.

Thomas M. Haas and Chris N. Galanos, Mobile, for appellant.

John L. Lawler, Mobile, for appellee.

HARRIS, Presiding Judge.

Appellant was convicted and fined for petit larceny in violation of a Mobile city ordinance in the Municipal Court of Mobile. From this conviction, appellant received a trial de novo in the Mobile County Circuit Court. Appellant entered a plea of not guilty and represented himself throughout the proceedings. Following a trial before a jury, appellant was found guilty of petit larceny and fined $25.00. In addition, the trial judge imposed four days jail time. No jail time was imposed in the Municipal Court.

Appellant contends now that the trial judge erroneously allowed him to represent himself in that the judge did not ascertain whether or not appellant's waiver of counsel was knowing and intelligent.

Before the appellant's trial began, the following occurred.

From the record:

"THE COURT: You are George T. Clark?

"DEFENDANT: Yes, sir.

"THE COURT: How old are you, Mr. Clark?

"DEFENDANT: Thirty-seven.

"THE COURT: You are charged with a City complaint; the City says that you did unlawfully take and carry away one magic marker Hi-light of the value of twenty-five cents, the personal property of Montgomery Ward; that charges the violation known as petit larceny. Do you have an attorney?

"DEFENDANT: I do not have an attorney.

"THE COURT: Are you employed?

"DEFENDANT: Not employed at the present.

"THE COURT: You're a man of some considerable means, though; aren't you? In other

"DEFENDANT: I have money to take care of my bills at the present, Your Honor.

"THE COURT: In other words, you from time to time have employed attorneys, have you?

"DEFENDANT: Very definitely.

"THE COURT: And you did have Mr. Alidor, but I believe you told Mr. Alidor that you could handle your jury case as well as well, maybe satisfactorily anyway, did you?

"DEFENDANT: I told him I would get by; I'm sure I'll make many mistakes and errors. If the Court will bear with me, I'll try to do the best I

"THE COURT: You are not applying to this Court as being, say, an indigent person; are you?

"DEFENDANT: No, I'm not.

"THE COURT: All right. Now, do you realize that if you were convicted of this offense do you realize that this City Ordinance would carry with it a punishment; that a jury could impose a fine of up to $200.00; and do you realize that this Court if it saw fit, in addition to anything the jury did, could impose confinement in the City Jail of up to thirty days?

"DEFENDANT: Yes, I realize that?

"THE COURT: You realize that?

"DEFENDANT: Yes, sir.

"THE COURT: And you are willing to submit your case to a jury and handle it yourself?

"DEFENDANT: Yes, sir.

"THE COURT: All right. Now to this charge of petit larceny, how do you plead guilty or not guilty?

"DEFENDANT: Not guilty.

"THE COURT: All right. And I believe you have asked for a trial by jury?

"DEFENDANT: Yes, sir."

It is undeniable that the State cannot force a lawyer upon a defendant in a criminal trial, where the defendant has voluntarily and intelligently elected to proceed without counsel. Faretta v. California,422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; Beckley v. State, Ala.Crim.App., 333 So.2d 875. However, in order to competently choose self-representation, the defendant should be "made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268.

We think that the record supports a finding that appellant knowingly and willingly waived his right to be represented by counsel. This case presents a factual situation very close to that of King v. State, 55 Ala.App. 306, 314 So.2d 908, cert. denied 294 Ala. 762, 314 So.2d 912.

There, the defendant contended that the record must show accused was offered counsel but intelligently and understandingly rejected the offer. This Court stated:

"The question is not whether the trial judge adhered to a specific procedure but whether accused was competent to exercise an intelligent, informed judgment. United States v. McGee, 7 Cir., 242 F.2d 520." King, supra, at 909.

In King, supra, no interrogation of the defendant by the trial judge appeared on the record. However, a knowing and intelligent waiver of counsel was inferred from the record as a whole and from the fact that defendant was not a newcomer to the criminal judicial process.

Mr. Clark stated that he had employed attorneys on previous occasions. He first employed counsel in this case but decided that he did not need his service prior to trial. From his conduct at trial, it can be readily inferred that appellant was familiar with the trial process. He filed a motion to produce, requested a jury trial, cross-examined witnesses, made objections to questions which were sustained, presented evidence, made opening and closing statements, and requested numerous jury instructions, several of which were given. Several times he made reference to the fact that this was a trial "de novo."

Following conviction appellant filed a motion to dismiss. At this time he was represented by counsel. Appellant stated that he had elected to represent himself at trial.

As this Court stated in King, supra, the problem presented by such a case as this one could constitute a "built-in error." Had appellant not been allowed to represent himself at the trial below, he could now easily argue that he had been denied his right to do so under Faretta, supra.

Next appellant argues that the trial court erroneously added four days imprisonment to the jury-imposed fine of twenty-five dollars. He argues that there had been no showing of any change of circumstances between conviction in the inferior court and conviction in the circuit court.

Appellant bases his contention on the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. There the Supreme Court of the United States held that violation of due process resulted when a defendant received a greater punishment after having succeeded in obtaining a new trial following conviction. The violation of due process results where no factual data is made of the record in new trial, which serves as a justification for the imposition of the increased sentence.

Appellant correctly interprets Pearce, supra. However, that case is not applicable to the present case on this appeal. Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584, controls the question raised by the appellant.

In Colten, supra, the defendant was charged with a misdemeanor and tried in an inferior court, where he received a fine of ten dollars. Defendant then "appealed" to a court of general criminal jurisdiction by means of a trial de novo. There the defendant was convicted and punishment was a fine of fifty dollars. The United States Supreme Court held that this did not constitute a violation of due process.

Kentucky, as does Alabama, allows a trial de novo as a right as long as the defendant applies within the statutory time. For an explanation of the function and procedure of the trial de novo, see Diane Yarbrough v. City of Birmingham, Ala.Cr.App., 353 So.2d 75, 1977, wherein we said:

"In Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64, 66, certiorari denied, 213 Ala. 685, 106 So. 67, the Court held that a 'trial de novo' means that the Circuit Court 'assumes control of the case afresh or anew with all the powers, privileges, duties, responsibilities, and authority that was vested by law in the recorder while the case was pending in said recorder's court.' A trial de novo means that the slate is wiped clean and a trial in the Circuit Court is had without any consideration being given to prior proceedings in another Court.

"When a case is appealed to the Circuit Court for a trial de novo the judgment in the Recorder's Court is only a step toward the jurisdiction of the Circuit Court and such judgment is of no effect if the Circuit Court makes final disposition of the case. The judgment of the Recorder's Court is reinstated by the Circuit Court only where the appeal is dismissed. Anthony v. City of Birmingham, 240 Ala. 167, 198 So. 449."

Examining the trial de novo in Kentucky, the United States Supreme Court wrote in Colten, supra:

"Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.

"We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly."

The same reasoning readily applies to the case at bar and Alabama's trial de novo procedure. Thus the imposition of four days jail time in addition to a fine of twenty-five dollars was not error. See also State v. Royal, 113 N.H. 224, 305 A.2d 676.

Appellant also argues that the Circuit Court never acquired jurisdiction of his case because the City of Mobile failed to file with the Court the original complaint against him. In support of his contention, appellant cites Title 37, Section 587, Code of Alabama 1940, which states in pertinent part:

"When...