Jackson v. State, 59413
| Citation | 268 S.E.2d 418,154 Ga.App. 367 |
| Decision Date | 17 April 1980 |
| Docket Number | No. 59413,59413 |
| Parties | JACKSON v. The STATE. |
| Court | Georgia Court of Appeals |
Millard D. Fuller, Americus, for appellant.
Claude N. Morris, Dist. Atty., Howard S. McKelvey, Jr., Asst. Dist. Atty., for appellee.
This is the second appearance of this case before this court. In Jackson v. State, 149 Ga.App. 496, 254 S.E.2d 739 (1979), appellant's conviction of aggravated assault was reversed because the trial judge denied appellant's motion to participate as co-counsel in his own defense. It was held that appellant had a right to such participation under our state constitutional provision that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." Code Ann. § 2-109 (formerly § 2-104). Following the reversal of appellant's conviction on this ground, he was again brought to trial for aggravated assault, and participated therein as his own co-counsel. Appellant was found guilty at this second trial and the instant appeal is from this second conviction.
1. Appellant first enumerates error upon the denial of his plea of former jeopardy. His argument in this regard is based upon the wording of Code Ann. § 2-115, the state constitutional double jeopardy provision: "No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial." Appellant argues that since he filed no motion for new trial but appealed his former conviction directly to this court and secured a reversal, the subsequent trial after such reversal was in violation of the constitutional provision which "saves" from the double jeopardy prohibition only such retrials as are the result of the defendant's "own motion for a new trial after conviction." (Emphasis supplied.) It is urged that since the reversal of his former conviction by this court was secured by means of a direct appeal rather than by appeal from the denial of a motion for new trial, his plea of former jeopardy was erroneously denied. This argument is clearly without merit. "The true intent and meaning of (Code Ann. § 2-115) . . . is that one who, after conviction upon an indictment, voluntarily seeks and obtains a new trial thereon, becomes subject to another trial generally for the offense therein charged." Waller v. State, 104 Ga. 505(1), 30 S.E. 835 (1898). Thus, procedurally, it matters not how a defendant obtains a new trial by direct appeal from the judgment of conviction or after the denial of his motion for new trial, should he choose to file one. Code Ann. § 6-702. If a defendant voluntarily seeks reversal of his conviction and a new trial and is successful, he will not be heard to complain that to try him again places him in double jeopardy in violation of the state constitution. Staggers v. State, 225 Ga. 581, 170 S.E.2d 430 (1969).
2. Appellant next contends that because he exercised his right to act as his own co-counsel the trial judge treated him unfairly. His motion for mistrial on this ground was denied and this is enumerated as error. The citations to the transcript in support of the claim of "unfair treatment" refer to instances where the trial judge would not allow appellant to "testify" when he should have been conducting cross-examination of witnesses. We find no error in the trial judge's actions or in his refusal to grant a mistrial.
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...the crime is not authorized and must be set aside." Defendant was then afforded the new trial he had moved for. Jackson v. State, 154 Ga.App. 367, 368(1), 268 S.E.2d 418 (1980) states the long-standing construction of the Georgia constitutional provision regarding double jeopardy: " 'The tr......
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Palmer v. State, 75956
...v. State, 254 Ga. 591(11), 331 S.E.2d 578), and to prescribe the manner in which court business will be conducted. Jackson v. State, 154 Ga.App. 367(2), 268 S.E.2d 418; OCGA §§ 15-6-9(8); 15-1-3(4). The appellant has failed to establish that the trial judge abused his discretion in allowing......
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Powers v. State
...of the comments of the trial court to which we have been cited were made outside the presence of the jury. See Jackson v. State, 154 Ga.App. 367, 369, 268 S.E.2d 418 (1980). The one comment that was made in the presence of the jury was addressed to appellant in his capacity as co-counsel in......
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Daniels v. State
...from the judgment of conviction or after the denial of his motion for new trial, should he choose to file one." Jackson v. State, 154 Ga.App. 367, 368, 268 S.E.2d 418 (1980). 4. Daniels contends that the trial court's charge to the jury on the law of voluntary manslaughter, made on its own ......